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State of New Jersey v. Stephon Downer

March 21, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEPHON DOWNER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-03-0813.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 14, 2011

Before Judges Lisa and Sabatino.

Defendant, who was convicted in 2002 of felony murder and other offenses, appeals the trial court's denial of his petition for post-conviction relief ("PCR") after an evidentiary hearing. For the reasons that follow, we affirm.

We incorporate by reference the underlying facts set forth in our opinion on direct appeal. See State v. Downer, No. A-6626-01 (Aug. 6), certif. denied, 178 N.J. 251 (2003). In essence, the felony murder and the other related offenses of which defendant was convicted arose out of a drug transaction that went awry.

On March 6, 1997, Carlos Ruiz, Edelmiro Robles and two other individuals went to a housing project in Camden to purchase marijuana. At the behest of defendant, who Robles stated was also present, Ruiz went inside one of the buildings while Robles remained outside. According to Robles, defendant then placed a handgun to Robles' head. He began going through his pockets to rob him, but Robles had nothing of value. During this face-to-face encounter, Robles had the opportunity to observe defendant clearly. Defendant then entered the building and went up the stairs, where Ruiz had gone. Robles heard Ruiz utter an exclamation of surprise. Robles then heard a gunshot.

Upon hearing the gunshot, Robles ran from the building to his two friends who had been waiting in the car. According to Robles, he saw defendant come out of the building, holding the handgun and looking directly at him. Robles and his two friends then drove to the police station, believing that Ruiz had been shot. When they returned to the building with the police, Ruiz was found lying dead in the stairwell. Ruiz had been shot once in the back with a .38 caliber bullet. Robles later identified defendant, from a photographic array, as the perpetrator.

Defendant was indicted for the murder of Ruiz and also for other crimes arising out of the events that transpired in the housing project. At defendant's ensuing trial, the State relied, in part, upon Robles' identification of defendant from the photo array, and also his in-court identification. The State also produced two witnesses, with whom defendant had shared a lock-down cell during an unrelated arrest. Defendant did not testify at trial and he presented no witnesses.

The jury convicted defendant of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a lesser-included offense of murder; first-degree felony murder, N.J.S.A. 2C:11-3a(3); two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5b.

Defendant was sentenced to an aggregate term of life imprisonment plus fifteen years, with a thirty-five-year parole disqualifier. The reckless manslaughter conviction and the conviction for the armed robbery of Ruiz were merged with the felony murder conviction. Defendant was sentenced on the felony murder conviction to life imprisonment with a thirty-year parole disqualifier. On the conviction for the other armed robbery committed against Robles, defendant was sentenced to fifteen years imprisonment, with a five-year parole disqualifier, consecutive to the felony murder sentence. Finally, the gun possession convictions were merged and defendant was sentenced to seven years of imprisonment, with a three-year parole disqualifier, concurrent with the other sentences.

In affirming defendant's conviction on direct appeal, we rejected his argument that the prosecutor's summation had improperly alluded to defendant's right not to incriminate himself. We also rejected defendant's claim that his sentence was manifestly excessive. However, we agreed with, and the State conceded to, defendant's contention that the weapons offense should have been merged with either count for which the weapon was unlawfully possessed. Accordingly, we remanded the matter to have the judgment of conviction amended to reflect the required merger of the weapons offense. The Supreme Court denied defendant's subsequent petition for certification. Downer, supra, 178 N.J. at 251.

On August 13, 2004, defendant filed a PCR application with the trial court, contending that his trial counsel was constitutionally ineffective in numerous respects. In support of his petition, defendant submitted a lengthy pro se brief, with appendices. The petition was subsequently amplified by designated PCR counsel.

Following several days of evidentiary hearings, at which defendant, his trial counsel, and two other witnesses, Deshaun Milton and Douglas Scott, testified, the PCR judge issued an oral decision on March 12, 2008, denying defendant's petition. A written order memorializing that decision was entered on March 17, 2008. Defendant then filed the instant appeal.

Through his designated counsel on appeal, defendant contends that the trial court should reverse the denial of defendant's PCR petition. In particular, defendant maintains that his trial counsel should have endeavored more aggressively to contest Robles' identification of defendant, should have pursued an alibi defense through the testimony of other persons who would claim that defendant was not at the scene, should have obtained hospital and telephone records, and should have conducted a more thorough investigation. Defendant also argues that his trial counsel did not consult with him sufficiently before trial, and that his trial counsel should have retained a fingerprint expert and should have more effectively cross-examined the State's witnesses. Defendant further asserts that trial counsel gave him incorrect advice during the plea bargaining phase of the case and failed to tell him ...


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