On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-02-554-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2008
Before Judges Skillman and Collester.
Defendant James Caines appeals from the denial of his petition for post-conviction relief (PCR).
Tried to a jury, defendant was convicted of conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2 and 2C:15-1; first-degree robbery, in violation of N.J.S.A. 2C:15-1; and felony murder, in violation of N.J.S.A. 2C:11-3a(2). On November 21, 1997 he was sentenced by Judge Paul J. Vichness to an aggregate term of forty years imprisonment with a thirty-year period of parole ineligibility. We affirmed his conviction and sentence on direct appeal, State v. Caines, No. A-4987-97T4 (App. Div. 2000), and the Supreme Court denied defendant's petition for certification on January 18, 2001, State v. Caines, 167 N.J. 88 (2001). Defendant's PCR application was denied by Judge Vichness on August 1, 2006.
The facts adduced at defendant's trial were set forth at length in our prior opinion. In summary, defendant together with co-defendants Larry Mayo and Wesley Williams were convicted of the murder of Byron Thompson, a taxicab driver, in the City of Newark on the night of March 27, 1993. The murder investigation led police to Mayo's former girlfriend who gave a statement that defendant told her he had murdered the cab driver with a double-barreled shotgun. Defendant was then placed under arrest and advised of his Miranda*fn1 rights.
After voluntarily waiving his rights, defendant signed a statement admitting his participation in the murder. He said on the day of the murder that he, Mayo and Williams were at his girlfriend's home in East Orange when Mayo told him of a plan to rob a cab driver. Defendant was to call the cab company for the pickup and be the lookout during the robbery. Defendant knew that Williams was armed with a black double-barreled sawed-off shotgun. When the taxi arrived, the three rode in the cab to an address Mayo gave the driver. Defendant said he got out of the cab and walked to the corner. When he heard a gunshot, he turned and saw the cab driver slumped in the driver's seat. At trial, defendant recanted most of his written statement. He admitted taking the cab ride with Mayo and Williams but said that he did so in order to purchase drugs in the area. He denied any prior knowledge of their intention to commit a robbery or that either of them had a shotgun. Referring to the written statement given to police, defendant claimed that his signature on each page was forged. In response the State called Sergeant Daniel Poland, supervisor of the Document Examination Unit of the New Jersey State Police. Qualified as a handwriting expert, Sergeant Poland compared signatures of defendant on several documents with the signatures on defendant's statement and opined they were signed by the same person.
Defendant's PCR petition asserted the following legal arguments:
POINT I - THE ARREST WARRANT WAS ISSUED UNLAWFULLY, AND DEFENDANT'S STATEMENTS OBTAINED IN ITS WAKE WERE UNLAWFULLY TAINTED.
POINT II - THE "OPENING THE DOOR" DOCTRINE WAS MISAPPLIED TO THE ABSENT WITNESS'S, ROGER HOYTE'S, STATEMENT, THUS ADMITTING HIS OUT-OF-COURT STATEMENT UNLAWFULLY.
POINT III - THE PROSECUTOR COMMITTED A SHOCKING AND PREJUDICIAL SERIES OF "MISSTATEMENTS," WHICH REQUIRE REVERSAL.
POINT IV - IN THE PRESENCE OF DEFENDANT'S TESTIMONY THAT HE WAS AN INNOCENT COMPANION TO THE ARMED ROBBERS WITH NO KNOWLEDGE OF WEAPONS OR EXPECTATION OF HARM, THE AFFIRMATIVE DEFENSE TO FELONY-MURDER HAD TO BE CHARGED, BUT WAS NOT.
POINT V - AS A MIRROR TO POINT IV CONCERNING THE FAILURE TO CHARGE THE AFFIRMATIVE DEFENSE TO FELONY-MURDER, COUNSEL WAS INEFFECTIVE FOR NOT REQUESTING, AND THE COURT COMMITTED PLAIN ERROR BY NOT PROVIDING A "LESSER INCLUDED ...