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State v. McMillan

January 5, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ERIK MCMILLAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 98-06-0865 and 98-06-0867.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2009

Before Judges Reisner and Yannotti.

Defendant Erik McMillan appeals from an April 3, 2007 order denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was convicted by a jury of: first degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree aggravated assault, N.J.S.A. 2C:12-1b(5); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. After merger, the court sentenced defendant, as a persistent offender, to an extended term of fifty years with twenty-five years of parole ineligibility on the first-degree robbery count, with lesser concurrent terms on the other non-merged counts.

On his direct appeal, defendant raised the following arguments:

POINT I: FUNDAMENTAL FAIRNESS REQUIRES THAT THE CONVICTIONS BE REVERSED AND THAT THE STATE BE BARRED FROM RETRYING MCMILLAN A FOURTH TIME.

A. Fundamental Fairness Required That The Indictment Be Dismissed After The Mistrial Of The First Trial.

B. The Prosecutor Did Not Exercise Sufficient Diligence To Control His Witness In Order To Avoid Testimony In Conflict With The Court's Order Sanitizing The Testimony.

C. There Were Readily Available Alternatives To A Mistrial.

POINT II: FUNDAMENTAL FAIRNESS REQUIRED THAT THE INDICTMENT BE DISMISSED AFTER THE WITNESS USED THE TERM ROBBER DURING THE SECOND TRIAL.

POINT III: INTRODUCTION OF THE MUG SHOT IS REVERSIBLE ERROR.

POINT IV: THE TRIAL COURT'S CHARGE TO THE JURY ON IDENTIFICATION WAS IMPROPER AND INCOMPLETE AND IT DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Not Raised Below).

POINT V: THE CUMULATIVE EFFECT OF THE IMPROPER INSTRUCTIONS REGARDING INCONSISTENT STATEMENTS AND ALIBI WAS TO DEPRIVE MCMILLAN OF A FAIR TRIAL.

A. The Instruction About Prior ...


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