On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-07-1917.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2009
Before Judges Fisher and Sapp-Peterson.
Defendant Rahman Herrill appeals from the November 6, 2006 order denying his petition for post-conviction relief (PCR). The court denied the petition without first conducting an evidentiary hearing, concluding that defendant had failed to establish a prima facie basis for PCR. We affirm.
Defendant's convictions arose out of the New Year's Day shooting of Stephen Calderone outside of an apartment building in Orange where Calderone had gone with his girlfriend, Rebecca Celusak, just after midnight. Calderone went upstairs to Yvette Weems' apartment where Weems was hosting a New Year's Eve party with some of her girlfriends and a few men, one of whom was defendant, who was also known as "Rock." When Calderone entered the apartment, defendant was asleep on a couch. He had been at the party since the early evening and had started drinking from a bottle of Hennessey at that time. Calderone asked for food but was told to wait for the ball to drop. He also asked for drugs. He was told no one had drugs and that he should check outside. Calderone then left Weems' apartment and went outside. Once outside, Celusak, who had been waiting for Calderone in their vehicle, observed him talking to a few people who were standing outside of the apartment building.
A short time later, Calderone walked back to his vehicle. As he "walked towards the back of the SUV," he was confronted by defendant, who had left Weems' apartment after awakening and briefly tussling with his friends before "bust[ing] the door" and eventually walking out of the apartment after Weems confronted him about his behavior. When defendant confronted Calderone, he started shooting him, and when Calderone fell to the ground, defendant continued shooting at him. He also kicked Calderone and spit on him. The autopsy report revealed that Calderone had been shot eight times, including gun shot wounds to the head, chest, abdomen, rectum, shoulder, back and elbow. A number of witnesses identified defendant as the shooter but at least two other witnesses selected another person, Maurice Rock, who is also known as "Rock" or "Rhock." Police took statements from Weems, as well as two other women who were at her apartment for the New Year's Eve party, Ruth Powell and Shamira Jones. All three women identified defendant as the shooter. Police obtained an arrest warrant for defendant.
A six-count indictment charged defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) (Count One); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (Count Two); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b) (Count Three); second-degree witness tampering, N.J.S.A. 2C:28-5(a) Count Four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (Count Five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Six). Shortly before trial, Counts Two and Four were dismissed. The jury convicted defendant of murder, unlawful possession of a weapon and possession of a weapon for an unlawful purpose. The court denied defendant's motion for a new trial and sentenced defendant to serve a term of life imprisonment with a thirty-year period of parole ineligibility, merged Count Five into Count Six, and imposed a consecutive five-year custodial term with a three-year mandatory period of parole ineligibility on the weapons offense. On appeal, we affirmed defendant's conviction but remanded to the trial court for re-sentencing because the trial court improperly merged Count Six and Count Five rather than merging Count Six into Count One and separately imposing sentence on Count Five. State v. Rahman Herrill, No. A-6380-01 (App. Div. October 6, 2003)(slip op. at 4). The Supreme Court denied defendant's petition for certification. State v. Rahman Herrill, 178 N.J. 455 (2004).
In February 2004, defendant filed a pro se petition for PCR, claiming (1) ineffective assistance of trial and appellate counsel and (2) that the verdict was unsupported by the evidence. Counsel was assigned to represent defendant and filed a supplemental brief raising ineffective assistance of counsel as the basis for PCR. In a written opinion filed November 6, 2006, Judge Joseph C. Cassini, III found that trial counsel's performance "more than satisfie[d] the minimum reasonable standard for effective assistance of counsel" and that defendant's petition failed to demonstrate, by a preponderance of the evidence, that the claimed ineffective assistance on the part of appellate counsel would have altered the outcome of defendant's appeal. The court also noted that a number of claims raised in the petition had been addressed on direct appeal and were therefore procedurally barred. The court entered an order dated November 6, 2006 denying the petition. The ensuing appeal followed.
On appeal, defendant raises the following points for our consideration:
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL.
TRIAL COUNSEL'S OPENING STATEMENT, FAILURE TO FILE A PRETRIAL MOTION TO SUPPRESS THE OUT-OF-COURT IDENTIFICATIONS OF DEFENDANT, FAILURE TO OBJECT TO THE TRIAL COURT'S JURY CHARGE ON IDENTIFICATION, FAILURE TO REQUEST A JURY INSTRUCTION ON THE LESSER INCLUDED MANSLAUGHTER OFFENSES, FAILURE TO MOVE FOR A JURY [VOIR DIRE] CONCERNING THE IN-COURT CONDUCT OF THE SHERIFF'S OFFICERS, AND FAILURE TO PERMIT  DEFENDANT TO TESTIFY AT TRIAL, SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ ...