On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-12-1402.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 16, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Jermaine Vaughn appeals from the denial of his petition for post-conviction relief (PCR). He is serving a life term of imprisonment with a thirty-year period of parole ineligibility following his 1999 conviction of felony murder, robbery, and possession of a weapon for an unlawful purpose. We affirm.
This court affirmed defendant's conviction and sentence, but remanded for a Miranda*fn1 hearing. We instructed the trial judge to determine whether defendant had invoked his right to remain silent. State v. Vaughn, No. A-6299-98 (App. Div. June 26, 2001). The Supreme Court denied certification. 170 N.J. 87 (2001). Following the Miranda hearing, the trial judge held that defendant had not invoked his right to remain silent. Defendant appealed, and this court affirmed. No. A-3921-01 (App. Div. June 7, 2004). The Supreme Court denied certification. 182 N.J. 143 (2004).
The conviction arises from a chance encounter between Adrian Davis, defendant and co-defendant Jeremiah Bass during the evening of June 5, 1995. After driving around Trenton, stopping at his home to obtain a black hooded jacket and a green hooded sweatshirt, and consuming a forty-ounce bottle of malt liquor, defendant and co-defendant decided they needed money to get into parties. Both men were armed. As they walked down a street, defendant had his revolver in his hand and noticed the victim walking towards him. The man walked right up to defendant and co-defendant. After a momentary struggle, defendant's gun discharged, the man fell to the ground, and defendant and co-defendant walked away. The victim was pronounced dead at the hospital. A woman observed the entire encounter from the front window of her home. When she called police, she informed the dispatcher that the men had entered Marion Street on foot.
Soon, police observed two men on Marion Street fleeing the area on foot. After a foot pursuit, during which police observed co-defendant discard his gun and ammunition, the co-defendant was detained and arrested. Although police located a small chrome revolver and a spent .32 caliber shell casing in the pocket of a black jacket in an empty lot, defendant was not arrested until June 9, when police located him in the hospital recovering from a wound received in another incident on June 6.
When released from the hospital, police arrested defendant on a warrant issued in connection with the June 6 incident. At the police station, police advised defendant why he was in custody, and a detective administered his Miranda rights. Defendant waived his rights, and approximately two hours later provided a formal statement in which he admitted shooting the victim. He explained the incident as follows: "as we got closer to the [victim] he saw my gun, and then he got up on me real quick, grabbed my jacket and pulled me towards him, and then is when the gun went off." This statement was introduced at trial.
In his PCR petition, defendant argued that the arrest warrant for the June 5 shooting was not properly issued; therefore, his post-arrest statement should have been suppressed. Moreover, trial counsel failed to communicate with defendant prior to trial, failed to conduct an investigation and failed to interview witnesses, failed to file the necessary motions, and failed to object to jury instructions. Defendant highlighted trial counsel's failure to explore an intoxication defense. In addition, defendant asserted that "direct appeal counsel was ineffective in that he failed to raise necessary and important issues."
Judge Delehey conducted an evidentiary hearing. At that time, defendant presented the testimony of trial counsel and the detective who administered Miranda rights to defendant, conducted the interrogation and took defendant's statement. The record remained open to allow submission of a report from an expert concerning the effect of phencyclidine and whether the ingestion of this substance would support an intoxication defense. Subsequently, PCR counsel advised the court that an expert report would not be submitted.
In a lengthy written opinion, Judge Delehey denied the petition. The judge found that defendant was arrested after his co-defendant provided a statement inculpating defendant. In short, police had probable cause to arrest defendant. A formal complaint issued following defendant's inculpatory statement and an indictment issued in due course. The judge also noted the warrantless arrest issue had not been raised on direct appeal and was barred pursuant to Rule 3:22-4.
The judge also found that defendant failed to submit any credible evidence to support his contention that he had a viable alibi or intoxication defense. He also found that defendant proffered no information that would have supported retention of an expert and submission of a report concerning the voluntariness of his confession or factors to mitigate the sentence. Furthermore, we rejected defendant's argument on direct appeal that his sentence was excessive.
The judge found that defendant's contention that trial counsel failed to adequately challenge inconsistencies leading to his arrest was too vague and unsupported to allow meaningful consideration. The judge also found that defendant was not entitled to a passion/provocation charge as a lesser included offense because he was charged with felony murder not purposeful or knowing murder. In conclusion, Judge Delehey determined that defendant failed to establish that trial counsel provided a defense that fell below an objective standard of reasonableness or that any error or deficiency contributed to an unwarranted conviction.
On appeal, defendant raises the following arguments:
I. THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED VAUGHN OF A FAIR TRIAL AND RENDERED THE JURY'S ...