On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 01-08-0829.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R.B. Coleman and C.L. Miniman.
Defendant Gregory Ashford appeals from the denial of his petition for post-conviction relief (PCR) following his September 16, 2002, conviction of conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1; armed robbery, contrary to N.J.S.A. 2C:15-1; unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b; and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. The jury determined that defendant committed a violent crime within the meaning of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to ten years in prison with an eighty- five-percent parole ineligibility term on the armed-robbery conviction. He received a concurrent five-year term on the possession of a weapon for an unlawful purpose, a concurrent four-year term for conspiracy to commit armed robbery, and a concurrent four-year term for unlawful possession of a weapon.
We affirmed defendant's conviction but reversed and remanded for resentencing and correction of the judgment of conviction. State v. Ashford, No. A-2399-02 (App. Div. Nov. 17, 2004) (slip op. at 3) (Ashford I), certif. denied, 184 N.J. 210 (2005) (Ashford II). We now affirm the denial of PCR.
Around two a.m. on May 4, 2001, Manuel Marchaney drove to his home in New Brunswick. As he approached his neighborhood, he stopped at the corner of Rutgers Street and Lee Avenue where he noticed an old Buick flash its lights. Marchaney turned right onto Lee Avenue and then right onto Ellen Street. As he pulled into his driveway, he noticed the car driving by slowly and making a u-turn. As he got out of his car, two men approached him and asked for the time. One man was about five feet eight inches tall, and the other was about six feet tall.
The shorter man, who was wearing a black shirt, pulled out a gun, pointed it at Marchaney's head, and demanded money. Marchaney started to retrieve his wallet when the shorter man hit him on the head with the gun. As Marchaney fell to his knees, the taller man, who was wearing dark jeans and a dark shirt, took the wallet from his pocket. Marchaney testified that he could see the face of the shorter man as he held the gun to his head and could see the face of the taller man as he pulled the wallet from his pocket.
The two men fled in the direction of Lee Avenue. Marchaney went inside his home and called 9-1-1. Using a cordless telephone, Marchaney went back outside as he was speaking to the 9-1-1 operator. Marchaney crossed the street and went behind a building on the corner of Lee and Ellen. He told the dispatcher that the robbers had a gun and were in a white Cadillac. After the white Cadillac drove away, Marchaney saw two males standing by a blue Buick, one of whom was by the trunk of the car.
Police officers arrived within five minutes of the 9-1-1 call and arrested both men, defendant and his co-defendant, Michael Akins. The wallet was not with the two robbers but was found on the top of a tire on a nearby car. On a tire of another nearby car, the officers found the gun. Both cars were very close to the location where Marchaney saw the two robbers. One of the police officers saw defendant walk past the car where the wallet was found.
In the meantime, Marchaney had returned home to await an ambulance. At the hospital, the police told Marchaney that the suspects were in custody and that they were looking for the gun and wallet. Later the police returned to the hospital and showed Marchaney two sets of photographs from which he identified pictures of the defendant and Akins. He identified defendant as the short man with dreadlocks*fn1 who had the gun, and he identified Akins as the taller man who took his wallet. Upon release from the hospital, Marchaney gave a taped statement to the police. In that statement he admitted that, due to poor lighting conditions, he could not see the faces of the two men while they were robbing him in his driveway.
Marchaney also testified at trial that the male he saw standing by the trunk of the Buick was checking his wallet, but on cross-examination admitted he did not actually see the wallet in the man's hands. Also, during his direct testimony, Marchaney identified a photograph of the perpetrator who had dreadlocks as being the one who had the gun, but when questioned by the court, testified that the taller man had the dreadlocks.
He reaffirmed this testimony on redirect examination.
Defendant took the stand and testified that Akins met him at his home on the evening in question. After some time, they decided to go to Akins' home in Rahway to spend the night. On the way, they had a flat tire on Lee Avenue. Akins got out of the car to get the jack from the trunk. While sitting in Akins' car, defendant observed two men get into a white car that was parked somewhere between Akins' car and the next intersection; they drove off. Defendant walked down to the intersection of Lee and Rutgers Street to look for someone to help them. He saw a police car approaching on Rutgers and intended to flag it down, but he saw the police car stop by Akins' car and started walking back to it. One of the policemen approached him and placed him under arrest.
Prior to summations, defense counsel moved to preclude the prosecutor from representing during her Power-Point presentation that the shorter actor had dreadlocks. Counsel urged that such a representation was contrary to the testimony of Marchaney, who had testified on multiple occasions that the taller man had the dreadlocks. The judge denied this motion. Consequently, there were two occasions during the prosecutor's summation when she represented that Marchaney testified the shorter actor had the dreadlocks. During the summation, defense counsel objected, and the court overruled the objection, stating that the jury was to rely on its own recollection.
After summations, trial counsel's motion for a mistrial or a curative instruction was denied. Trial counsel's post-verdict motion for a new trial or judgment of acquittal notwithstanding the verdict was also denied. That motion was based on Marchaney's testimony that the short robber with the gun had a bandana on his head and the tall robber who pulled out his wallet had the dreadlocks.
On his direct appeal, defendant's appellate counsel raised the following issues:
POINT I -- THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY THAT PRIOR INCONSISTENT STATEMENTS COULD BE USED TO IMPEACH THE CREDIBLITY OF WITNESSES CONSTITUTES REVERSIBLE ERROR BECAUSE THE INSTRUCTION WAS BOTH SPECIFICALLY REQUESTED BY DEFENSE COUNSEL AND CRITICAL TO THE DEFENSE.
POINT II -- THE TRIAL COURT'S FAILURE TO CHARGE "MERE PRESENCE" DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
POINT III -- THE CONSPIRACY CONVICTION SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR THE SUBSTANTIVE CRIME (NOT RAISED BELOW).
POINT IV -- THE FINE IMPOSED UPON DEFENDANT MUST BE VACATED AS IT WAS NOT IMPOSED IN COMPLIANCE WITH THE CODE OF CRIMINAL JUSTICE.
In a pro se supplemental brief, the defendant raised the following issues, which we have renumbered to run consecutively to appellate counsel's points on appeal:
POINT V -- THE STATE FAILED TO ESTABLISH THEIR BURDEN OF PROOF AND THE TRIAL COURT FAILED TO PROTECT DEFENDANT'S RIGHT TO A FAIR TRIAL BY ALLOWING THE BURDEN TO SHIFT FROM THE PROSECUTION TO THE DEFENSE.
POINT VI -- THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUESTS TO HAVE THE VICTIM'S TESTIMONY READ BACK TO THE JURY.
POINT VII -- IMPROPER REMARKS AND THE KNOWING PRESENTMENT OF FALSE AND MISLEADING EVIDENCE BY THE PROSECUTOR DURING SUMMATION WERE HIGHLY PREJUDICIAL TO THE DEFENDANT AND THE FAIRNESS OF THE TRIAL, CONSTITUTING HARMFUL ERROR.
POINT VIII -- DENIAL OF DEFENSE COUNSEL'S APPLICATION FOR A MISTRIAL WAS ERRONEOUS.
We affirmed the convictions on all counts, but remanded for resentencing and merger of the conspiracy conviction with the armed robbery conviction for purposes of sentencing. Ashford I, supra, slip op. at 6-11. We did not mention the issues raised by defendant pro se, although we addressed each of the arguments presented by defendant's appellate counsel. We presume that the panel in Ashford I ...