On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-07-00733.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Rodríguez.
These two appeals by defendant, Khalif James, were heard back-to-back. We decide both appeals in one opinion. In A-3407-06T4, defendant appeals from the denial of his petition for post-conviction relief (PCR). In A-0324-07T4, defendant appeals from the denial of his motion for a new trial based on newly discovered evidence. We affirm on both appeals.
Following a jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1)(2); first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Judge Miriam N. Span merged the felony murder conviction into the murder conviction, and the possession of a weapon for an unlawful purpose conviction into the robbery conviction. Concurrent terms aggregating life imprisonment were imposed, with a thirty-year parole disqualifier. On direct appeal, we affirmed. State v. James, 346 N.J. Super. 441 (App. Div.), certif. denied, 174 N.J. 193 (2002).
The proofs are set forth at length in our earlier opinion. To summarize, defendant and co-defendants, Lawrence McGriff and Jason Means, held up a gas station. During the robbery, the gas station attendant, Ramon Medina, was shot four times by two different guns. He died. According to the State, defendant, McGriff and Means agreed to do the robbery. Defendant and McGriff were armed. Means dropped McGriff and defendant off near the gas station. He then drove to the gas station with a fourth person, Thomas, and obtained $3.00 worth of gas. The other two walked up to the attendant and shot him. Means then picked them up and fled the area.
Later, McGriff gave his gun to Means. Means hid it in a ceiling tile of his home. Eventually, the police were led to Means, who had initially pretended to be an innocent bystander. However, McGriff implicated Means and later implicated defendant.
Defendant's trial was severed from the co-defendants. Prior to trial, defendant moved to suppress a statement made by witness Travelle Jackson. According to Jackson, defendant gave him his gun to hide following the shooting. The police were ultimately able to retrieve the gun.
The problem with Jackson's statement to the officer was that the police were led to Jackson by defendant's confession, which was suppressed. However, after Jackson testified at trial, Judge Span reconsidered and admitted Jackson's statement, as well as the gun, pursuant to the inevitable discovery rule. This was triggered by Jackson's testimony that he would have turned over the gun anyway because he was worried about children in the park getting hurt.
On direct appeal, we affirmed. State v. James, 346 N.J. Super. 441 (App. Div.), certif. denied, 174 N.J. 193 (2002).
Defendant filed pro se a PCR petition and brief. Counsel was assigned. Counsel filed a brief alleging that trial counsel had rendered ineffective assistance by failing to: obtain a plea agreement; object to autopsy photographs; object to an improper charge regarding a prior inconsistent statement; effectively argue at sentencing; argue against double counting an element of the crime at sentencing; argue against admission of the .38 caliber Smith & Wesson; and object to the jury charge on the law of robbery and attempt. The petition also faulted appellate counsel for failing to raise on appeal the double counting of an element of the crime and the jury charge on robbery and attempt.
Judge James C. Heimlich, who was not the trial judge, denied the petition on the grounds that a prima facie ineffective assistance of counsel claim was not established. Moreover, many of the issues were procedurally barred pursuant to ...