September 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ADOLPHUS DOWNS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-03-0324.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Payne and Alvarez.
On December 11, 1997, a jury convicted defendant, Adolphus Downs, of murder, N.J.S.A. 2C:11-3(a); felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and possession of a prohibited weapon, a sawed-off shotgun, N.J.S.A. 2C:39-3(b). Defendant was ultimately sentenced to a sixty-year custodial term, subject to a thirty-year period of parole ineligibility, for the felony murder,*fn1 as well as a consecutive five-year term subject to a two-year period of parole ineligibility for possession of the sawed-off shotgun. Defendant's aggregate sentence is sixty-five years, subject to a thirty-two-year period of parole ineligibility.
Defendant now appeals pro se the denial of his fourth petition for post-conviction relief (PCR). The motion judge denied PCR without an evidentiary hearing in a decision dated March 6, 2007. For the reasons that follow, we affirm.
The charges result from the shooting death of Jose Rodriguez as he was preparing, on the morning of December 12, 1995 to drive two of his daughters to school. Briefly, Rodriguez was killed with a sawed-off shotgun at point-blank range during a planned armed robbery. Co-defendant Jermile Omar Mayo was the shooter, defendant was a participant in the robbery, and co-defendant Taknowa Thomas was the look-out.
Defendant raises the following points:
DEFENSE COUNSEL'S FAILURE TO SUPPRESS FLAWED IDENTIFICATION VIOLATED DEFENDANT'S 14TH AMEND. RIGHT TO DUE PROCESS, AND 6TH AMEND. RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
PROCEDURAL VIOLATION OF R. 3:2-3 BY POLICE OFFICERS VIOLATED DEFENDANT'S RIGHTS UNDER N.J. AND U.S. CONSTITUTION TO EQUAL PROTECTION AND DUE PROCESS.
TRIAL COURT ERRED WHEN DENYING PETITIONER'S CLAIM OF DEFENSE COUNSEL FAILURE TO REQUEST A SEVERANCE UNDER R. 3:15-2(b), (c); AND/OR OBJECT TO CO-DEFENDANT'S COUNSEL CALLING PREJUDICIAL WITNESS.
TRIAL JUDGE'S REFUSAL TO RENDER DECISION ON DEFENDANT'S POINT 4 APPEALING THE FACT THAT LESSER-INCLUDED CHARGES WERE NOT GIVEN VIOLATED DEFENDANT'S DUE PROCESS RIGHTS AND CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
TRIAL JUDGE'S DECISION REFERS TO POINT 5 OF DEFENDANT'S BRIEF, HOWEVER CLEAR INSPECTION OF DEFENDANT'S PRIOR BRIEF WILL SHOW THAT THERE WAS NO POINT 5 AS PART OF THIS DEFENDANT'S BRIEF, AT THAT TIME.
THE CUMULATIVE EFFECT OF TRIAL ERRORS AND COUNSELS INEFFECTIVENESS DEPRIVED DEFENDANT A FAIR TRIAL.
Because defendant has filed at least three prior PCR petitions since 1998, commencing on April 27, 2000 through August 2, 2006, there are formidable procedural obstacles to the award of any relief. First, as the PCR judge noted, this application falls outside the five-year time limit set by Rule 3:22-12. The rule by its own terms does permit consideration of a claim where a defendant can establish that "the delay beyond said time was due to defendant's excusable neglect." In his brief on appeal, defendant does not even use the words "excusable neglect," or in any manner attempt to explain the delay. Because no reasons are given, we cannot determine whether "there has been an 'injustice' sufficient to relax our time limits." See State v. Afanador, 151 N.J. 41, 52 (1997).
Even if the five-year time bar was not dispositive, on direct appeal defendant has fully litigated, or had the opportunity to do so, all of the issues raised in this petition. See R. 3:22-3; R. 3:22-4; R. 3-22:5; State v. Mitchell, 126 N.J. 565 (1992).*fn2 Defendant's claims of flawed identification, procedural violation of Rule 3:2-3, failure to order a severance, flawed jury instructions, and failure to require a read-back of Thomas' trial testimony were either raised, or could have been raised, on direct appeal and must therefore be barred from consideration.
As the motion judge correctly stated, PCR is "neither a substitute for direct appeal nor an opportunity to re-litigate issues already decided on the merits." The court may grant relief from procedural barriers only where enforcement would result in a "fundamental injustice." R. 3:22-4(b). Afanador, supra, 151 N.J. at 50. No fundamental injustice has been asserted by defendant that warrants relief.
We note in passing that defendant raises for the first time on appeal, although we cannot be certain in the absence of his PCR petition brief, the trial court's purported "error in failing to dismiss the charges sua sponte and to charge lesser includeds." Additionally, defendant contends for the first time on appeal that the cumulative effect of the asserted errors required reversal of his conviction. Because these points were not raised before the PCR judge, they are therefore not entitled to our consideration. Absent some extraordinary circumstance, we cannot consider issues raised for the first time on appeal, even where constitutional in nature, unless they relate to jurisdiction or substantially implicate a public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Neither exception applies here. We therefore decline to address these points any further.
We are satisfied that defendant has failed to present on appeal claims which would have required the court to conduct an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Accordingly, we reject defendant's contentions and affirm substantially for the reasons expressed by Judge Marmo in his letter opinion of March 6, 2007.