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State v. McMillan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Inconsistent Statements.

B. The Alibi Instruction.

In a pro se supplemental filing, defendant raised the following additional points:

POINT I: APPELLANT SUBMIT BEFORE THIS COURT THAT TRIAL COURT COMMITTED A MANIFEST INJUSTICE ERROR IN ALLOWING AKCASOY'S TESTIMONY TO BE READ IN APPELLANT'S SECOND TRIAL AND THIS ABRIDGE THE FUNDAMENTAL CONSTITUTIONAL RIGHTS TO CROSS EXAMINATION AND CONFRONTATION PURSUANT TO THE U.S. CONST., AMEND. 14 DUE PROCESS/EQUAL PROTECTION RIGHT CLAUSE. (Partial Raised Below).

POINT II: TRIAL COURT ERRED IN NOT INFORMING THE JURY TO THEIR READ-BACK INSTEAD OF TELLING THEM TO RELY ON RECOLLECTION OF THE ARRESTING OFFICER'S TESTIMONY THROUGHOUT THE TRIAL. THAT WAS CONTRARY TO THE JURY REQUEST IN THE FIRST PLACE AND THIS DENIED APPELLANT THE FUNDAMENTAL PROTECTION OF A FAIR TRIAL OF HIS PEERS. SEE I.E. U.S. CONST., AMEND. 14 SUPPORTED WITHIN DUE PROCESS/EQUAL PROTECTION CLAUSE. (Not Raised Below).

POINT III: THE PROSECUTOR'S COMMENTS IN HIS OPENING BEFORE THE JURY WAS A DELIBERATE MOVE TO PREJUDICE THE JURY AGAINST APPELLANT BY REFERRING TO APPELLANT AS OPPORTUNIST AGAINST THE LAWS OF AMERICA. THIS VIOLATED APPELLANT'S U.S. CONST., AMEND. 14 RIGHTS TO A FAIR TRIAL. (Partial Raised Below).

POINT IV: APPELLANT SUBMITS THAT RESPONDENT'S FAILURE TO STATE ON RECORD ITS REASONS FOR REFUSING TO WAIVE AN EXTENDED TERM WARRANTS DISMISSAL OF SAME WITH PREJUDICE. (Not Raised Below).

POINT V: THE CONSEQUENCES OF INCORRECT JURY INSTRUCTION IS SO PREJUDICIAL TO THE FUNDAMENTAL BLOOD-LINE TO THE RIGHT TO A FAIR TRIAL THAT MATERIAL AND RELEVANT EVIDENCE COULD LEGALLY GO BY WITHOUT PROPER GUIDANCE TO CONSIDER SAME AND THIS VOID APPELLANT'S "CLEAN-SLATE" AND PRESUMPTION OF INNOCENCE BEFORE TRIAL AND SWITCH THE BURDEN BEYOND A REASONABLE DOUBT OF APPELLANT'S GUILT. CONTRARY TO THE U.S. CONST., AMENDS. 6 & 14 AND N.J. CONST., ART. 1, PAR. 1 & 10.

POINT VI: APPELLANT SHOULD HAVE BEEN ALLOWED TO PRESENT A INTERROGATION EXPERT TO PROVE POLICE COERCIVE INTERROGATION TECHNIQUES THAT LEAD TO HIS ALLEGED VERBAL STATEMENT. THUS A DENIAL OF THE U.S. CONST., AMEND. 14 AND DUE PROCESS/EQUAL PROTECTION CLAUSE, TO PERFECT THE FULL BALANCE OF APPELLANT'S U.S. CONST., AMEND. 6 RIGHT TO DEFEND CRIMINAL ALLEGATIONS IN A JURY TRIAL. (Not Raised Below).

POINT VII: APPELLANT NOT BEING IDENTIFIED BY THE ALLEGED VICTIM AND ALLOWING APPELLANT'S MUG SHOT BEFORE THE JURY TAINTED THE IN-COURT IDENTIFICATION PROCESS AND SAME WAS NOT HARMLESS TO THE U.S. CONST., AMEND. 14. (Partial Raised Below).

POINT VIII: APPELLANT SUBMIT THAT TRIAL COURT SHOULD HAVE GIVEN A CROSS RACIAL IDENTIFICATION CHARGE GIVEN THE FACT APPELLANT AND THE ALLEGED VICTIM ARE OF DIFFERENT RACES.

POINT IX: APPELLANT SUBMIT THAT DOUBLE JEOPARDY IN THE INSTANT CASE PREJUDICE HIM CONTRARY TO THE U.S. CONST., AMEND. 5 AND N.J. CONST., ART. 1, PAR. 11.

In a further supplemental filing, he argued:

POINT I: APPELLANT'S SENTENCING PROCEDURE IMPOSING THE EXTENDED TERM, DEPRIVED HIM OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO HAVE A JURY DETERMINE BEYOND A 1 REASONABLE DOUBT ALL FACTS LEGALLY ESSENTIAL TO HIS SENTENCE AND TO THE CONTRARY WAS A DENIAL OF APPELLANT'S DUE PROCESS/EQUAL PROTECTION CLAUSE PURSUANT TO THE U.S. CONST., AMENDS. 6 & 14 AND N.J. CONST., ART. 1, PARS. 1, 9 & 20.

We rejected all of those arguments and affirmed on direct appeal. We published a portion of our supplemental opinion affirming imposition of the extended term. State v. McMillan, No. A-1528-01 (App. Div. June 28, 2004); State v. McMillan, No. A-1528-01 (App. Div. October 13, 2004); State v. McMillan, 373 N.J. Super. 27 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005). Defendant then filed the PCR petition that gave rise to this appeal.

II.

We discussed the trial evidence in detail in our June 28, 2004 opinion. In summary, defendant was convicted of committing an armed robbery at a gas station. One of the station attendants, Turan Akcasoy, was from Turkey and eventually returned there. At the original trial, Akcasoy was not able to identify defendant. Instead the State relied on a security videotape from the gas station which clearly showed the robber's face. Following a mis-trial and a second trial that ended in a hung jury, the State obtained a conviction at a third trial. Because Akcasoy could not be located at the time of the third trial, the State was permitted to use the transcript of his earlier trial testimony.

At oral argument on the PCR petition, PCR counsel first contended that defendant's trial counsel was ineffective for failing to locate Akcasoy for the third trial, so that trial counsel could have cross-examined Akcasoy live before the jury.

According to PCR counsel, his investigator had recently located Akcasoy in Turkey, and he asserted that if he could find Akcasoy, trial counsel should have been able to locate him. In that connection, PCR counsel also contended that the mistrial declared in the second trial was prejudicial, because Akcasoy allegedly left the country between the second and third trials.

PCR counsel also argued that the State should have disclosed to the defense that the police officer who arrested a co-defendant had later been removed from the police force "for cause." PCR counsel conceded that this officer was "not a . . . critical eyewitness in this case" but nonetheless contended that the defense should have known this information prior to trial.

Addressing the PCR court, defendant argued that the State failed to disclose that a co-defendant had accepted a plea bargain for a three-year probationary sentence. He contended that he should have been given the same sentence as the co- defendant. Defendant further contended that his trial counsel did not properly advise him as to the State's plea offer to him, and the possible sentence he might receive if convicted at trial. Defendant raised additional arguments in pro se written submissions to the court.

In an oral opinion placed on the record on April 3, 2007, Judge Malone, who had also been the trial judge, rejected all of defendant's contentions. He found that defendant had submitted no legally competent evidence to support his claim that his trial attorney had not communicated any plea offers or had not properly advised him about the plea process. The judge also found that the co-defendant's sentence was irrelevant, since the co-defendant entered into a plea agreement.*fn1 The judge found nothing in defendant's submissions to suggest how an expert witness might have assisted the defense in challenging defendant's statement to the police. He further noted that there was no need for a cross-racial identification charge, because the victim did not identify defendant.

The judge rejected the argument that defense counsel should have located Akcasoy, noting that the use of the earlier trial transcript was addressed on defendant's direct appeal.

Addressing defendant's additional points, the judge concluded that they were either without merit or were barred because they were raised and rejected on direct appeal.

III.

On this appeal, defendant once again repeats his arguments concerning the failure to locate Akcasoy, the alleged failure to properly advise defendant during plea negotiations, and the failure to disclose information about the officer who was dismissed from the police force. He offers these points for our consideration:

POINT I: THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED, AND THIS MATTER MUST BE REMANDED FOR EVIDENTIARY HEARING, BECAUSE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS ESTABLISHED.

A. Trial Counsel Failed To Conduct An Investigation So As To Secure The Victim's Availability.

B. Trial Counsel Was Deficient In Plea Negotiations.

POINT II: THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS AND CONCLUSIONS OF LAW REGARDING THE STATE'S EVIDENCE FROM DEFENDANT. (Not Raised Below).

In a pro se supplemental PCR brief, defendant raises these additional points:

POINT I: DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PCR PROCEEDING.

POINT II: THE LOWER COURT ERRED BY DENYING THE DEFENDANT'S INEFFECTIVENESS-OF-COUNSEL CLAIMS BEFORE LETTING THE DEFENDANT FULLY DEVELOP SAID CLAIMS.

POINT III: THE LOWER COURT DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FULL AND FAIR HEARING IN THE COURT OF FIRST INSTANCE.

POINT IV: THE CUMULATIVE IMPACT OF THE ISSUES RAISED RISE TO THE LEVEL OF HARMFUL ERROR.

In a further pro se brief, he adds this argument:

POINT I: PCR COUNSEL WAS INEFFECTIVE FOR NOT RAISING JURY QUESTION ISSUE.

We find no merit in defendant's appellate contentions, including his pro se submissions, and we affirm substantially for the reasons cogently stated by Judge Malone. We add the following comments.

As he did before Judge Malone, defendant contends that his trial counsel should have done more to locate Akcasoy. However, defendant offered no evidence as to where Akcasoy was at the time of the third trial, or how trial counsel could have located him. And, most importantly, he did not explain how producing Akcasoy in person would have changed the outcome of the trial.

Even at the original trial, Akcasoy was unable to identify defendant. Rather, defendant was photographed by a security camera, and the best identification evidence was the jury's view of the video tape as well as defendant's contemporaneous mug shot which was properly placed before the jury.

Defendant also repeats his argument that trial counsel failed to advise him properly during plea bargaining. However, the record is devoid of any legally competent evidence supporting that claim. A claim of ineffective assistance of counsel requires more than "bald assertions." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant also fails to explain how knowing about disciplinary charges against a police officer, who was a tangential witness, would have changed the outcome of the trial.

We likewise find no merit in defendant's supplemental argument that his trial counsel should have introduced the arresting officer's report into evidence. During deliberations, the jury sent out a question asking to see the officer's report. Since the report was not in evidence, the judge instructed the jury that they could not see it, but they could consider the officer's testimony. Defendant does not explain how the officer's report would have been helpful to the defense and, without more, we will not speculate that it would have made a difference to the outcome of the trial. See Cummings, supra, 321 N.J. Super. at 170.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). Defendant did not establish a prima facie claim of ineffective assistance of counsel, and the trial court therefore did not err in deciding the PCR petition without a plenary hearing. See State v. Preciose, 129 N.J. 451, 462-64 (1992); Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Affirmed.


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