On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-04-1940.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 11, 2009
Before Judges Cuff and Fisher.
Defendant Devon Floyd appeals from the denial of his petition for post-conviction relief. He is serving a thirty-year term of imprisonment, eighty-five percent of which must be served without parole pursuant to N.J.S.A. 2C:43-7.2 (No Early Release Act), for his 2002 conviction of aggravated manslaughter. He was also convicted of possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. We affirm.
The facts giving rise to this conviction are set forth in our unreported opinion, State v. Devon Floyd, No. A-1986-02 (App. Div. November 10, 2004).*fn1 Essentially, the jury found that defendant left but returned to an apartment building armed with a gun after Gregory Shelton's fiancée declined out of deference to the victim to give defendant a congratulatory hug to mark the birth of defendant's child. When defendant returned to the building, he shot and killed Shelton.
Defendant filed a pro se petition for post-conviction relief in which he alleged that he was denied effective assistance of counsel because he was denied discovery of material and relevant confidential records, including medical records and ballistic records, and trial counsel did not assure production of all relevant discovery. He also asserts that his conviction was the product of cumulative error, including the failure of trial counsel to object a) to improper comments by the prosecutor in her opening statement, b) to autopsy photos, and c) to an unclear verdict sheet. Defendant alleged that trial counsel should have requested a jury instruction concerning the prior inconsistent statements of Shonda Oliver and did not aggressively cross-examine various State witnesses. Defendant also alleged that the trial judge impermissibly restricted cross-examination of prosecution witnesses and allowed the prosecutor to exclude qualified jurors based on race. Defendant asserted that the prosecutor knowingly used perjured testimony, and he was denied the right to present witnesses in his defense. Finally, defendant alleged that appellate counsel was ineffective because he failed to argue that qualified jurors were excluded based on their race.
Following the assignment of counsel, appointed counsel filed an amended petition in which he alleged that newly discovered evidence demonstrates a myriad of defenses available to defendant and that trial counsel failed to conduct an effective investigation which denied defendant effective assistance of counsel and a fair trial. Judge Michael J. Nelson construed the papers filed by defendant pro se and assigned counsel as a motion for a new trial based on newly discovered evidence and a petition for post-conviction relief. The motion for a new trial was based on a statement by Robert Skipper that he had seen the victim armed earlier in the day. The judge held that the so-called newly discovered evidence was merely cumulative to the trial testimony of every witness offered by the State, could have been offered at the time of trial, and would not have changed the outcome of the trial. Therefore, he denied the motion for a new trial.
Addressing the petition and the claims of ineffective assistance of trial and appellate counsel, Judge Nelson found that the performance of trial counsel was neither deficient nor prejudicial. He noted that the evidence of guilt was overwhelming and defense counsel presented a zealous defense.
On appeal, defendant raises the following arguments:
POINT I- THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to investigate Robert Skipper and failed to present him as a witness at trial.
B. Trial counsel failed to protect defendant's right to a fair ...