On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-10-4248-D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and Waugh.
Defendant Tieheen Fletcher appeals from the denial of his petition for post-conviction relief (PCR) following his conviction on June 26, 1998, of first-degree murder, contrary to N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b. Defendant also pled guilty that same day to another indictment charging him with third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-4a. He was sentenced to life imprisonment with thirty years of parole ineligibility on the murder conviction and two concurrent five-year terms of imprisonment on the two third-degree convictions. The second-degree conviction was merged for sentencing purposes.
Defendant's convictions were based on the following evidence. Early in the morning of August 8, 1997, Michael Joyner was at the corner of Avon Avenue and Twelfth Street in Newark with Elizabeth Kurbansade and Glenn Gray. Joyner heard defendant and Gregory Brantley arguing for two to three minutes "about some drugs." Defendant and Brantley, who were about fifty feet away from Joyner, were in front of a building on the corner of Avon Avenue and Eleventh Street. After they stopped arguing, defendant walked up Twelfth Street past Joyner.
As Brantley got into his car, he greeted Gray and drove away. All three witnesses then heard multiple gunshots. Kurbansade heard about eight; Joyner heard four or five; and Gray could not specify how many he heard, but he saw Brantley's car swerve and crash. Gray and Kurbansade started to run. Defendant ran past Gray on Twelfth Street and turned onto Avon Avenue. As defendant approached Joyner, he placed a silver-looking gun in his waistband and said he "got his fat ass."
Joyner, Gray, and Kurbansade gave statements to the police. After Joyner was arrested on a drug charge, he identified defendant from a photographic array on September 2, 1997; he did not mention the argument before the shooting.
Gray was arrested on some outstanding warrants for possession of heroin and gave a statement to the police on August 14, 1997, after which he was released on his own recognizance. He said he knew defendant because he had seen him selling drugs in front of a building Brantley was going to buy. Gray said he never saw a gun. Although he had not mentioned this previously, Gray testified at trial that while he was in prison for two days, he was two or three jail cells away from defendant and overheard him saying he had "messed his life up, he didn't want his family messed up," and he had made a big mistake.
Kurbansade gave a statement on August 14, 1997, in which she said that she heard about eight shots, started to run, and saw defendant holding a gun in his right hand as he was running. She identified defendant from a photographic array. At trial she claimed that she was "real high" on the night of the murder and partially recanted her statement. Because she was sick and threatened with jail, she claimed she only told the police what she thought they wanted to hear and denied the truth of her statements implicating defendant. However, she admitted that she had known defendant for about five years and said he sold heroin in the area.
Detective Gil Gialanella denied threatening to jail Kurbansade if she did not cooperate. However, he said she was "[v]ery nervous, very upset, [and] scared" while she was giving her statement.
The medical examiner testified that Brantley's death was caused by a bullet to the brain fired from a distance in excess of eighteen inches. Louis Alarcon, a ballistics expert, testified that the six shell casings found at the scene were fired from a semi-automatic nine-millimeter pistol. He was not sure whether the bullet removed from Brantley's brain was fired from one of those casings. From the location of each casing, he opined that the shots were fired while the shooter was moving.
Defendant appealed his convictions, we affirmed, and the Supreme Court denied certification. State v. Fletcher, No. A-4398-98 (App. Div. Jan. 9, 2001), certif. denied, 169 N.J. 604 (2001). In his direct appeal, defendant raised the following issues:
I. The admission of highly prejudicial and irrelevant evidence of other bad acts deprived defendant of a fair trial. (U.S. Const. amends V, VI, XIV; N.J. Const. art. I, ¶¶ 1, 9, 10). (Partially raised below).
II. The admission of Elizabeth Kurbansade's prior inconsistent statement was contrary to State v. Gross*fn1 and State v. Mancine*fn2 and denied defendant a fair trial and his right to controntation. (U.S. Const. amend. VI; N.J. Const. art. 1, ¶ 10).
III. Based on an erroneous interpretation of State v. Clawans*fn3 , the trial court mistakenly sustained the State's objection to defense counsel's summation and gave a "curative instruction" that improperly shifted the burden of proof to defendant.
IV. Numerous instances of prosecutorial misconduct deprived defendant of his due process right to a fair trial. (U.S. Const. amend. XIV; N.J. Const. art. 1, ¶ 10). (Not raised below).
V. The trial court's failure to instruct the jurors regarding the effect of witnesses' actual or perceived expectation of favorable treatment by the state, when both of these witnesses testified that they saw defendant run from the scene of the shooting, deprived defendant of his federal and state constitutional rights to a fair trial and to due process of law. (U.S. Const. amends. V, VI and XIV; N.J. Const. art. 1, ¶¶ 1, 10 and 12). (Not raised below).
VI. The sentence of the court was manifestly excessive. [Id. at 2-3.]
Defendant pro se raised two additional issues, which we have renumbered to run consecutively:
VII. The testimony of Michael Joyner that defendant and the victim were arguing about drugs minutes before the shooting was improper lay opinion testimony because Joyner did not testify to any facts he actually perceived that rationally supported his opinion. As a result, the State should not have been allowed to use this evidence and other evidence of defendant's other crimes as the motive for the charged offenses. (Partially raised below).
VIII. The cumulation of trial errors deprived defendant of a fair trial. (Not raised below). [Id. at 3.]
Defendant filed his PCR petition on July 19, 2002, wherein he raised the following grounds for relief:
a. Trial Counsel was Ineffective for not using Evidence of Defendant's Statement to the Police where this Evidence would have Clearly Supported a Verdict on any of the three forms of Manslaughter Submitted to the Jury and would have Supported an Instruction on Self-Defense.
b. Trial Counsel was Ineffective for not Calling Defendant as a Witness.
c. The Jury's General Verdict of Murder Must be Vacated Because one of the Predicates for Conviction (Knowingly Causing Serious Bodily Injury, which Resulted in Death) is Indistinguishable from Aggravated and Reckless Manslaughter.
In his pro se supporting brief, defendant urged that Rule 3:22-4 does not bar the latter claim because it involves the deprivation of a right guaranteed by the United States Constitution.
In a supplemental supporting brief filed by PCR counsel, defendant raised multiple additional issues, which we have relettered to run consecutively to his first three issues:
d. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to obtain a plea agreement on her client's behalf.
e. Petitioner's trial attorney rendered ineffective assistance of counsel by shifting the burden of proof onto the defense.*fn4
f. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to object to inappropriate commentary by the prosecutor in her closing statements.*fn5
g. Petitioner's trial attorney rendered ineffective assistance of counsel by failing to allow [defendant] ...