On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-01-0230.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges S. L. Reisner and Sabatino.
Defendant Nathaniel Broadnax appeals an order of the trial court dated August 25, 2008, denying his petition for post-conviction relief ("PCR") after the court held an evidentiary hearing. We affirm.
After a jury trial in 2008, defendant was convicted of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a lesser-included offense of murder; possession of a weapon under inappropriate circumstances, N.J.S.A. 2C:39-5d; and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The State's proofs at trial established that defendant participated with others in the fatal beating and stabbing of a narcotics dealer on a street in Newark, in the early morning hours of September 15, 2001. The victim died from multiple stab wounds. The attack was witnessed by three women who resided across the street. One of the individuals who was indicted with defendant testified that defendant was the person who stabbed the victim, that defendant admitted to doing so because the victim was a member of a particular gang, and that defendant expected to be paid for taking the victim's life.
At the time of his arrest, and after being given Miranda*fn1 warnings, defendant gave a voluntary statement to the police. Defendant admitted to the police that he took part in the fight, but claimed that he only stabbed the victim once and that he had not intended to kill him. He also told the police that he saw others also stab the victim. Defendant's statement was admitted at the trial, at which defendant did not testify or present any witnesses.
At sentencing, the trial judge determined that the unlawful purpose weapons offense merged into the reckless manslaughter offense and imposed a nine-year sentence on that count, subject to an eighty-five percent parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent eighteen-month sentence on the conviction for possessing a weapon under inappropriate circumstances.
On direct appeal, we rejected all of defendant's arguments respecting the convictions, including his claims that: the trial judge incorrectly charged the jury; the judge erroneously denied defendant's motion for judgment of acquittal on murder; and the prosecutor's summation improperly alluded to defendant's right not to incriminate himself. See State v. Broadnax, No. A-2479-04 (App. Div. Jun. 21, 2006). We also rejected defendant's argument that his sentence was manifestly excessive. However, we remanded the case to enable the trial court to amend the judgment to reflect the required merger of the two weapons offenses and also to re-examine the aggravating and mitigating sentencing factors in light of State v. Natale, 184 N.J. 458 (2005). Defendant received the same sentence on remand, and the Supreme Court denied his subsequent petition for certification. State v. Broadnax, 188 N.J. 358 (2006).
In April 2007, defendant filed the instant PCR application, contending that both his trial counsel and his appellate counsel were constitutionally ineffective. In particular, defendant claimed that he did not sign either the Miranda waiver form or the associated statement given to the police. Defendant argues that he advised his trial counsel that the signatures were forgeries, and that his counsel should have presented a handwriting expert at trial. Defendant's PCR attorney supported the petition with a report of a handwriting expert.
The PCR judge, who was the same judge who presided over the trial, conducted an evidentiary hearing. At that hearing, defendant's trial attorney testified and explained why, for strategic reasons, she had not retained a handwriting expert. She explained why she had preferred to argue to the jurors that they could compare defendant's signatures on the Miranda form and other documents and make their own assessments as to whether the signatures were consistent and genuine. The trial attorney also stated that she would not have called the handwriting expert proffered at the PCR hearing to testify at trial because he was unable to support a theory of non-authenticity with any degree of scientific certainty. She further noted that handwriting comparison is largely a subjective exercise that could be conducted by the jurors themselves and that, strategically, she did not want to alert the prosecution to the issue sooner by serving an expert report before trial. The attorney also testified that, before trial, she discussed with defendant why she would not be calling an expert.
Defendant and his handwriting expert also provided testimony at the PCR hearing. Significantly, the expert was unable to offer an opinion, within a reasonable degree of scientific certainty, that the signatures on the Miranda waiver form and on the police statement were not authentic. Instead, the expert merely detailed certain problems that he perceived with the signatures, stating that there were "indications" that the signatures were not genuine, and that evidence of their non-authenticity was only "at the first step above an inconclusive [result]."
Following the evidentiary hearing, the PCR judge issued a written opinion, denying defendant's petition on both procedural and substantive grounds. This appeal ensued, in ...