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State v. Freeman

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 5, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTWAN FREEMAN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 00-08-1651-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 19, 2008

Before Judges Stern and Collester.

Defendant appeals from the denial of his application for post-conviction relief (PCR) in connection with his conviction of four counts of first-degree carjacking, N.J.S.A. 2C:15- 2(a)(2); second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(2); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b); four counts of aggravated assault, N.J.S.A. 2C:12-1(b); first-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2; second-degree eluding, N.J.S.A. 2C:29-2(b); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). On December 18, 2003, we affirmed the conviction but remanded the matter for re-sentencing. Following the imposition of an amended sentence on September 17, 2004, defendant filed a petition for certification that was denied on September 21, 2004. Defendant then filed his PCR petition on April 19, 2005.

The petition was denied by the trial judge on December 15, 2006, the court ruling that the application did not warrant an evidentiary hearing and that defendant had failed to make a showing of ineffective assistance of counsel.

The trial facts giving rise to defendant's conviction were set forth at length in our December 18, 2003 decision on direct appeal, and we need not repeat them. He presents the following arguments on the appeal from the denial of his PCR petition:

POINT I - THE COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING.

POINT II - THE TRIAL ATTORNEY PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL FAILED TO FILE A PRE-TRIAL MOTION TO DISMISS THE INDICTMENT BASED ON THE STATE'S FAILURE TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY.

B. TRIAL COUNSEL FAILED TO RAISE THE ISSUE OF CONFLICTING PROSECUTORIAL THEORIES WHICH RESULTED IN PROSECUTORIAL MISCONDUCT AND BRADY VIOLATIONS.

C. TRIAL COUNSEL FAILED TO ADEQUATELY CHALLENGE THE PRE-TRIAL IDENTIFICATION PROCEDURES.

1. DEFENSE COUNSEL FAILED TO CHALLENGE TROOPER DAWSON'S OUT OF COURT IDENTIFICATION OF DEFENDANT.

2. DEFENSE COUNSEL FAILED TO FILE A FORMAL MOTION FOR A WADE HEARING TO CHALLENGE THE OUT OF COURT IDENTIFICATION BY CHRISTOPHER LEDBETTER.

D. TRIAL COUNSEL FAILED TO REQUEST THE COURT TO VOIR DIRE ALL THE JURORS AFTER ONE JUROR WAS EXCUSED AFTER ADMITTING SHE WAS BIASED.

E. TRIAL COUNSEL FAILED TO REQUEST A CHANGE OF VENUE DUE TO EXTENSIVE PRE-TRIAL PUBLICITY.

F. TRIAL COUNSEL FAILED TO OBJECT TO THE POLICE OFFICER'S TESTIMONY OF DEFENDANT'S OUT OF COURT STATEMENTS.

G. TRIAL COUNSEL FAILED TO DEMAND A CURATIVE INSTRUCTION AFTER THE TRIAL JUDGE INTERRUPTED HIS CLOSING ARGUMENT.

POINT III - APPELLATE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. APPELLATE COUNSEL FAILED TO CLAIM ERROR BECAUSE THE COURT PERMITTED IMPERMISSIBLE HEARSAY.

B. APPELLATE COUNSEL FAILED TO CLAIM ERROR BECAUSE THE COURT FAILED TO VOIR DIRE ALL THE JURORS.

C. APPELLATE COUNSEL FAILED TO CLAIM ERROR BECAUSE THE TRIAL COURT PREJUDICED DEFENDANT BY INTERRUPTING DEFENSE COUNSEL'S CLOSING ARGUMENT.

D. APPELLATE COUNSEL PREJUDICED THE DEFENDANT BECAUSE FAILURE TO RAISE MERITORIOUS ISSUES MAY FORECLOSE DEFENDANT FROM RAISING SAME IN FUTURE PROCEEDINGS.

POINT IV - COUNSEL'S CUMULATIVE ERRORS RESULTED IN A MANIFEST INJUSTICE.

After careful review of the record, we have determined that the arguments made by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Martini, 160 N.J. 248, 264 (1999); State v. Preciose, 129 N.J. 451, 460-61 (1992); State v. Fritz, 105 N.J. 42, 57-58 (1987).

We specifically reject defendant's contentions directed to the out-of-court identification. Defendant has failed to make any showing of impermissible suggestiveness or unreliability.

State v. Madison, 109 N.J. 223, 232 (1988); State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div. 1985).

We also specifically reject defendant's contention that the prosecutor impermissibly proceeded at trial on "inconsistent and irreconcilable factual theories" to obtain a conviction. In Re Sakarias, 35 Cal 4th 140, 164 (2005). He bases this assertion on the allegedly exculpatory admissions made by the co- defendant, Kyle Wynder, at his plea hearing. Defendant argues that he was prejudiced because he did not have a copy of Wynder's plea hearing at the time of trial.

Because Wynder had not yet been sentenced at the time of defendant's trial, he could not have been forced to testify because of his Fifth Amendment right against self-incrimination. If the defendant believes that Wynder's statements at the plea hearing constitute exculpatory evidence that could not have been discovered until after trial, he could move for a new trial based on newly discovered evidence. See, State v. Robinson, 253 N.J. Super. 346 (App. Div. 1992). However, we find nothing in the plea transcript that exculpates defendant and there is an insufficient showing to grant relief. See, State v. Allen, 398 N.J. Super. 247, 258-59 (App. Div. 2008) (where an exculpatory affidavit was produced in the PCR proceedings).

Because the defendant has not put forth any meritorious claims on his application for PCR, we agree with the trial court that his application should be denied.

Affirmed.

20090105

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