On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 96-07-0794.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2009
Before Judges Rodríguez and Chambers.
Defendant, Charles Merritt, appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
Following a jury trial, defendant was convicted of four counts of first degree attempted murder, N.J.S.A. 2C:11-37, 2C:5-2, 2C:2-6; seven counts of second degree aggravated assault, N.J.S.A. 2C:12-1b(1), 2C:2-6; and seven counts of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4), 2C:2-6. Judge Thomas P. Kelly, who presided over the trial, imposed concurrent terms aggregating fifty years with a twenty-year parole disqualifier. We affirmed on direct appeal. State v. Merritt, No. A-2648-98T4 (App. Div. Sept. 28, 2000), certif. denied, 167 N.J. 89 (2001).
The facts are fully set forth in our opinion on direct appeal. On February 21, 1996, a fight occurred among defendant, his brother William Merritt, and Besham Henderson. The dispute concerned a debt that Besham's friend, Tia Womack, owed to William Merritt and some damage that William Merritt allegedly caused to Tia's car. At approximately 1:00 a.m. on February 23, 1996, Henderson's car was discovered with broken windows and slashed tires. Later, Henderson saw a group of about ten people walking towards his house. He alerted everyone inside. Shots were fired as the group approached and bullets struck the brick facade of the house. Matthew Campbell, a neighbor, recognized defendant and his brother William as the shooters. Defendant shot a handgun and his brother fired a shotgun.
The police responded to the scene. Shortly thereafter, Trenton Patrolman Charles N. Nemes saw a grey Honda matching the description of the suspects' getaway vehicle and stopped it. With the aid of a flashlight, he noticed a handgun inside a hat on a seat. He directed the driver to exit, frisked him, and "found a shotgun shell in his front right pocket." The driver was defendant's brother William, who after being advised of his rights, told a police detective that the incident was "to get back at or to retaliate against the individuals" at the Henderson home for damaging the car of defendant's girlfriend. William admitted to being involved in the fight that had occurred the day before between him, defendant, and Henderson. He also admitted firing the shotgun. He implicated Shawn Paul as the one who shot the revolver and named other members of the group involved in the incident. He did not include defendant.
As stated above, the jury convicted defendant. After the direct appeal was decided and the conviction became final, defendant filed pro se a PCR petition. Designated counsel filed a brief and defendant filed two pro se briefs. In the various briefs, defendant argued that he was denied the effective assistance of trial counsel because counsel failed: to cross-examine Campbell to demonstrate bias and to attack Campbell's credibility; to object to Campbell's trial testimony (not provided in discovery) that he fell on the porch steps while fleeing from the gunshots and thus was given time to pause and see defendant; to move to suppress statements made by co-defendant William Merritt and a bullet fragment found in the porch step up to a month after the shooting; and to present a viable defense during summation.
Defendant also challenged the applicability of aggravating factors in his sentencing, claimed ineffective assistance of appellate counsel, and alleged prosecutorial misconduct. Finally, defendant argued that the doctrine of fundamental fairness required the court to vacate defendant's conviction because Campbell allegedly confessed in 2004 that he had lied during the trial about seeing defendant as one of the shooters.
In a written opinion dated November 28, 2006, Judge Kelly denied the PCR petition. Citing Strickland v. Washington, 46 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984), he found that even "[a]summing arguendo that counsel's errors were so egregious as to violate defendant's Sixth Amendment rights . . . there has been no showing that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Specifically, on the issue of whether trial counsel was ineffective in cross-examining witnesses, including Campbell, Judge Kelly reviewed the trial transcripts and found that the witnesses were "questioned at length" and that "it is clear that trial counsel did not render ineffective representation that prejudiced defendant." As to the claim that trial counsel failed to move to suppress co-defendant's statement or the bullet fragment evidence, Judge Kelly found that "it is unlikely that the outcome of the trial would be any different" if the suppression motions had been filed. The opinion did not specifically address defendant's claim that trial counsel failed to present a "cogent, cohesive defense to the jury" during summation. However, inferentially, the judge found that trial counsel's performance was adequate.
In response to defendant's fundamental fairness argument regarding Campbell's alleged admission that he lied under oath, Judge Kelly denied defendant a new trial because "defendant's claims did not rise to the level needed to warrant such relief."
Defendant moved to amend the petition pursuant to Rule 1:7-4(b). Judge Kelly ...