On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-01-0246.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Alvarez.
Defendant Dana Tokley appeals from an August 8, 2006 order denying his petition for post-conviction relief (PCR). We affirm.
In connection with an armed robbery at the Quality Auto dealership in Pennsauken, New Jersey, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. We affirmed the conviction. State v. Tokley, Docket No. A-4725-99 (App. Div. Oct. 4, 2002). In our opinion on the direct appeal we summarized the trial record as follows.*fn1
The State presented evidence to show that on November 11, 1996, Robert Owens, the manager of Quality Automobiles in Pennsauken, was approached by two masked men. One of the men held a gun and instructed Owens to "give me the money." Owens gave the man $900 from his pocket. Owens was instructed to enter the trailer office where he observed the second masked man, later identified as Jose Martinez, with the three female employees on the floor. Owens was instructed to open the safe, but he replied that there was no safe. Martinez told the gunman to "shoot him," but no shots were fired. Another employee, Joe Fels, started to enter the trailer. One of the men pressed a gun in Fels' chest and said, "Don't be a hero." Martinez then grabbed a pocketbook, and both men fled.
The key witness on behalf of the State was Martinez, then serving a twenty-year sentence for aggravated manslaughter. According to Martinez, he knew defendant through criminal activities. In November 1996, he along with Elliot Rosario and defendant planned to rob Quality Automobiles. Rosario had a problem and could not participate in the crime. Martinez described how he and defendant, each carrying a weapon and dressed in camouflage clothing and ski masks, drove into the car lot and committed the robbery. Martinez entered the trailer while defendant approached the man believed to have plenty of money on him for a car auction. Martinez instructed the women inside to lie on the floor. A short while later, defendant entered the trailer with the man and asked where the safe was. Another man arrived, and Martinez told him to empty his pockets.
Martinez stated that he decided to cooperate with the State after he was arrested for murder and Rosario was killed. He thought he might also be killed. He agreed to cooperate in exchange for a lesser charge. He realized that if he did not testify, the deal could be withdrawn and the original charges reinstated.
Defense counsel cross-examined Martinez at length about his long criminal history. Martinez acknowledged he agreed to testify and cooperate with the State. He described how he and defendant each had a weapon and that he took a purse or a wallet. He first gave a statement to the police on September 21, 1998, about the robbery at Quality Auto. Martinez claimed he took Rosario's place in the robbery because Rosario was sick from drinking too much, and defendant got all the money from the robbery.
At one point, defense counsel sought to elicit evidence concerning the factual [basis for his plea]. . . . Counsel said, "Essentially that [Martinez] consummated some kind of drug deal in a bar and then they go pick up the money for that drug deal" and two men are shot. He argued that in Martinez's statement, he said that while he, Rosario, and another man were at a bar in Camden, the topic of killing defendant came up. The trial judge found the evidence relevant to show Martinez had a motive to lie against defendant, but he said there was no need for testimony about the drug deal in order to understand Martinez's statement about killing defendant.
Before the jury, defense counsel questioned Martinez about a discussion to kill defendant. Martinez admitted the content of the discussion and that they were looking for defendant but could not find him. Later, he said it was Rosario's plan to kill defendant, and he went along with it.
On redirect, Martinez described his relationship with Rosario as something like a brother. He wanted to help him out of his debt to defendant. Martinez said the moment he found that defendant set up a drug transaction where he influenced Rosario to kill somebody who turned out to be the wrong guy, he was angry with defendant and if he could get away with it, he would kill defendant. Later, Martinez replied that defendant killed Rosario in front of him. Defense counsel immediately objected and asked for a mistrial. At sidebar, the prosecutor noted that she had not asked Martinez about Rosario's murder and suggested that a curative instruction by the judge should suffice. The judge denied defendant's motion for a mistrial and agreed to give a limiting instruction to the jury. The judge asked for a suggested instruction. Defense counsel suggested the judge state in some fashion that "any reference to any other criminal activity is not to be considered by the jury."
Neither the prosecutor nor defense counsel objected to the judge's charge. As noted, the jury returned a verdict of guilty.
In our opinion, we rejected defendant's contentions, among others, that the trial court erred in admitting evidence that defendant had committed a murder and a drug offense; that the court erred in admitting hearsay evidence; that the court failed to properly instruct the jury on accomplice liability; that the court failed to give a lesser included offense charge for second degree robbery; and that the court failed to caution the jury on the use of an alleged accomplice's testimony.
Defendant filed his PCR petition on May 29, 2003, and filed an amended petition on August 31, 2005, after counsel was appointed. Judge Linda Baxter, who had also presided over the original trial, ...