On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1830.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2009
Before Judges Alvarez and Fall.
Defendant Naeem Miller appeals the February 8, 2008 denial of his petition for post-conviction relief (PCR) based on claims of ineffective assistance of both trial counsel and PCR counsel. We affirm.
Tried to a jury, defendant was convicted of: first-degree murder, N.J.S.A. 2C:11-3(a)(2); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was sentenced on May 13, 2005, to a custodial term of thirty years without parole for the murder, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive seven-year sentence, also subject to NERA, for the aggravated assault conviction. A concurrent four-year sentence was imposed for the offense of unlawful possession of a handgun and the remaining crime of possession of a handgun for unlawful purpose was merged.
On direct appeal, defendant contended that the trial court erred: in its identification instructions; by failing to instruct the jury on the lesser-included offenses of aggravated and reckless manslaughter; in providing the jury with confusing and contradictory instructions concerning the offense of aggravated assault; and by imposing an excessive sentence. Both the convictions and sentence were affirmed. State v. Miller, No. A-6464-04 (App. Div. Jan. 8, 2007) (slip op. at 2-3).
Defendant's petition for certification was denied. State v. Miller, 190 N.J. 392 (2007).
The facts and circumstances leading to defendant's conviction for the murder of Timothy Phillips, and the shooting of Stacy Davis, on December 16, 2001, are recounted at length in our decision on the direct appeal. It is sufficient to note that Phillips was shot multiple times at close range. The shooting occurred after a physical altercation inside a bar between defendant and Timothy's brother, Kevin. Phillips and Davis were shot in the aftermath outside the bar. Davis was merely a bystander, injured by stray bullets as he was fleeing the scene. Davis was able to select defendant's photograph from an array after the incident; Kevin was not. At trial, Davis was not able to identify defendant, who, since the shooting, had changed his hairstyle from the dreadlocks he had worn that night, and had grown a beard. In fact, Davis denied that the person in the photograph, whom he positively identified as the shooter, was the same person as defendant.
Another bystander who identified defendant from a photo array, Felicia Wright, testified at trial that she heard six or seven gunshots as she left the bar, and saw defendant running away while holding a black automatic handgun. She recalled that defendant had worn his hair in dreadlocks on the night of the incident, and said she had never seen his hair cut in the fashion that it was at trial, nor seen him with the beard he had grown by that date. Wright was acquainted with defendant because he was her child's father's cousin. Defendant was not arrested until approximately two years after the incident.
Defendant pro se filed a PCR petition on May 17, 2007, alleging prejudicial trial errors, prosecutorial misconduct and ineffective assistance of appellate counsel. Pursuant to defendant's request and the principles established in State v. Rue, 175 N.J. 1 (2002), defendant's subsequently-appointed PCR counsel argued the following to the motion court: (1) that trial counsel rendered ineffective assistance of counsel by failing to object to the court's identification instruction, which misstated the evidence and unfairly summarized it; (2) that trial counsel rendered ineffective assistance of counsel by failing to request an instruction on aggravated and reckless manslaughter; (3) that trial counsel rendered ineffective assistance of counsel by failing to object to the court's "confusing and contradictory" jury instructions; (4) that trial counsel rendered ineffective assistance of counsel by failing to move for a judgment of acquittal regarding the unlawful possession of a weapon; (5) that the trial judge altered the outcome of the trial by testifying; (6) that the prosecutor committed misconduct by overreaching; (7) that there was a constructive amendment of the indictment; (8) that the judge tailored the charge to the jury; and (9) "overall fundamental injustice." Defendant had also requested that PCR counsel raise an alleged conflict of interest on the part of his trial attorney, who had represented the murder victim on at least one prior occasion.
Defendant's attorney on appeal now raises the following points:
POINT I - THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED DUE TO INEFFECTIVENESS OF TRIAL COUNSEL.
1. Trial Counsel Failed To Object To The Court's Identification Instruction Which Both Misstated The Evidence And Summarized It In ...