July 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES CAINES, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 OFFENSE/LESSER INTENT" COMPONENT TO THE ACCOMPLICE LIABILITY INSTRUCTION.
POINT VI - THE SUDDEN TERMINATION OF DEFENDANT'S FIRST TRIAL PURSUANT TO DEFENSE COUNSEL'S UNNECESSARY MISTRIAL MOTION ESTABLISHED A BAR OF DOUBLE JEOPARDY FOR THE SECOND TRIAL BECAUSE THE FAILURE OF EITHER THE STATE TO PROVIDE, OR OF DEFENSE COUNSEL TO PROCURE, THE MISSING REPORTS WAS NOT A JUSTIFIABLE EXCUSE. IT WAS REQUIRED THAT AN EXPRESSION OF ASSENT BY DEFENDANT HIMSELF MUST APPEAR ON THE RECORD ALONG WITH A STATEMENT BY DEFENSE COUNSEL THAT HE HAD THOROUGHLY ADVISED THE DEFENDANT OF THE SITUATION AND THE RIGHTS HE HAD IN IT.
POINT VII - THE BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY HERE.
POINT VIII - THE GENERAL PRINCIPLES OF INEFFECTIVENESS OF COUNSEL.
Counsel for defendant adds the following in his brief from denial of the petition:
POINT I - DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
A. RULE 3:22-4 DOES NOT BAR RELIEF IN THIS MATTER.
B. RULE 3:22-5 DOES NOT BAR RELIEF IN THIS MATTER.
POINT II - DEFENDANT IS ENTITLED TO A FULL EVIDENTIARY HEARING ON HIS CLAIMS.
POINT III - DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
POINT IV - THIS MATTER SHOULD BE REMANDED, PURSUANT TO R. 3:20-2 FOR A HEARING ON DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY-DISCOVERED EVIDENCE.
Defendant submitted a pro se brief on appeal with additional arguments:
POINT I - THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
POINT II - THE TRIAL COURT'S INSTRUCTIONS TO THE JURY ON ACCOMPLICE LIABILITY WAS FATALLY FLOWED BECAUSE,
A. THE INSTRUCTIONS FAILED TO CONVEY TO THE JURY THAT IN ORDER TO CONVICT THE DEFENDANT AS AN ACCOMPLICE TO ROBBERY IN THE FIRST DEGREE, AN ARMED ROBBERY, IT HAD TO FIND THE DEFENDANT HAD PURPOSE TO PARTICIPATE IN THE CRIME DEFINED IN THE CODE I.E., ARMED ROBBERY.
B. THE COURT VIOLATED STATE V. BIELKIEWICZ, WHEN IT FAILED TO CHARGE THAT ALTHOUGH THE PRINCIPALS COMMITTED ROBBERY, CAINES MAY HAVE ACTED AS AN ACCOMPLICE ONLY TO A LESSER INCLUDED OFFENSE.
C. THE COURT COMMITTED A FATAL ERROR BY BROADENING THE SCOPE OF THE INDICTMENT, ADDING AN ADDITIONAL ELEMENT [ACCOMPLICE LIABILITY] NOT PRESENTED IN THE ORIGINAL INDICTMENT, WHICH THE DEFENDANT WAS FORCED TO DEFEND AGAINST, WHICH VIOLATED THE DEFENDANT'S FIFTH, SIXTH AND FOURTEENTH U.S.C.A. CONSTITUTIONAL AMENDMENTS.
Prior adjudication of a legal issue on direct appeal bars PCR on the same issue absent constitutional problems or matters of substantial import. R. 3:22-5. See State v. Harris, 181 N.J. 391, 494 (2004); State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970). The substantive arguments raised by or on behalf of defendant were considered and rejected on direct appeal. His claims of ineffective assistance of counsel relate to and mirror those substantive issues, and none satisfy either prong of the Strickland/Fritz test, which requires a showing of substandard professional assistance and ultimate prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
We next consider defendant's argument raised for the first time on his PCR application that he received ineffective assistance of trial counsel because his attorney failed to request an instruction on the affirmative defense to felony murder, which has the following elements:
[Defendant:] (a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
In this case the judge properly instructed the jury on the substantive elements of the charged offenses, which included the elements of the felony murder defense. Moreover, in light of the fact that defendant was convicted of conspiracy to commit robbery as well as first-degree robbery, it is obvious that the jury did not find the elements of the affirmative defense. Therefore, there is no merit to defendant's argument. Defendant has not made a prima facie showing to support his PCR claims of inadequate representation of counsel, and accordingly, is not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 460-61 (1992).
We do not reach defendant's argument for a new trial based on defendant's claim of newly discovered evidence of a dying declaration. Since the matter was not presented to the trial court in support of defendant's petition, it is not properly before us. Should defendant wish to pursue the matter, he must make an appropriate motion with the trial judge. All remaining arguments of defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2).