On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-03-0263.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2008
Before Judges Parker and Yannotti.
Defendant Jermaine Williams appeals from an order entered on October 18, 2006, denying his petition for post-conviction relief (PCR). We affirm.
Williams was charged under Passaic County Indictment No. 00-03-0263 with felony murder, N.J.S.A. 2C:11-3a(3) (count one); robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6 (count two); conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three); aggravated manslaughter, N.J.S.A. 2C:11-4a (count four); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6 (count five); and unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6 (count six).
At the trial, the State presented evidence that, on the afternoon of September 26, 1999, defendant and two of his friends, Stuart Jones and Jahkeam Francis, gathered in Newark. They decided to travel by taxi to the home of Jahkeam's cousin, Althea Cummings, in Paterson. Defendant was in possession of a silver hand gun. Defendant said that he needed money and would rob someone if he had the opportunity to do so.
Late in the afternoon, defendant, Jones and Francis took a taxi to East Orange, and there they got into a livery cab that was driven by another man. Defendant was seated in the rear with Jones. Francis sat up front, alongside of the driver. The cab stopped at Cummings' mother's home and then proceeded to the intersection of North Fourth Street and Haledon Avenue in Paterson.
There, at approximately 5:30 p.m., defendant observed Miguel "Danny" Mercado on the sidewalk in front of his father's grocery store. Mercado, who was sixteen-years old, was talking to a friend, Gregory Brown. Mercado was wearing a thick, gold chain around his neck. The car stopped and defendant got out. He grabbed Mercado from behind, placed the gun to the right side of Mercado's neck and demanded that Mercado give him the chain.
Mercado resisted and attempted to extricate himself from defendant's grip. Mercado and defendant struggled. Defendant shot Mercado in the abdomen, took the necklace, and got back into the cab, which then drove off. Mercado died the following day as a result of the internal hemorrhaging caused by the gun shot wound in his abdomen.
After the robbery, the driver drove defendant, Jones and Francis to Cummings' home. The driver dropped them off and left. Cummings was at home with her boyfriend, Rasheem White, and her daughter. Later that evening, defendant, Jones and Francis went with Cummings and White to a club. They left at around 2:30 a.m. Cummings dropped defendant and Jones off at a location in Orange. Defendant told Jones that he wanted to get rid of the gold chain. They sold the chain in New York City, two days later.
Officers from the Paterson Police Department investigated the matter, and that investigation led them to Cummings and White, who gave statements to the police. Detective Richard Reyes testified that Cummings and Francis had identified defendant, Jones, and Francis from photo lineups. In October of 1999, Jones was arrested. He initially denied involvement in the incident, but later said that defendant robbed and shot Mercado and he had been in the car at the time. Francis was arrested in March of 2000. On June 16, 2000, defendant was arrested in York, Pennsylvania.
The jury found defendant guilty of all charges. Defendant was sentenced to an aggregate term of life plus five years of imprisonment, and required to serve thirty two and one-half years before becoming eligible for parole.
Defendant appealed his conviction and sentence and raised the following issues:
THE PROSECUTOR COMMITTED MISCONDUCT, AND THUS DEPRIVED DEFENDANT OF A FAIR TRIAL, WHEN HE TOLD THE JURORS DURING SUMMATION THAT THEIR ROLE IN THE CASE WAS "ABOUT COURAGE" AND "ABOUT ALLOCATING RESPONSIBILITY."
THE COURT'S FAILURE TO INSTRUCT THE JURY TO APPLY SPECIAL SCRUTINY TO THE TESTIMONY OF ACCOMPLICES REQUIRES REVERSAL.
THE AGGREGATE SENTENCE OF LIFE PLUS FIVE YEARS, WITH A 32-1/2 YEAR PAROLE BAR, WAS MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.
THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED INTO THE FELONY-MURDER CONVICTION.
Defendant also filed a pro se brief and addendum in which he raised the following issues:
PROSECUTOR IN SUMMATION CALLING DEFENSE WITNESS A "BUM" PRODUCED PREJUDICIAL ERROR REQUIRING REVERSAL.
COUNSEL WAS INEFFECTIVE FOR STATING DEFENDANT WAS IN GETAWAY CAR OF ROBBERY DURING [HIS] OPENING ARGUMENT.
THE COURT'S JURY CHARGE OF FLIGHT WAS INAPPROPRIATE. TRIAL JUDGE INSTRUCTED JURY THAT IT "COULD INFER THAT DEFENDANT HAD FLED SHORTLY AFTER ALLEGED COMMISSION OF CRIME"; SUCH INSTRUCTION TO JURY MAY HAVE SUGGESTED THAT JUDGE BELIEVED ...