April 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHAZ MORGAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-04-0832.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 30, 2011
Before Judges Fisher and Simonelli.
Following a jury trial before Judge Paul Chaiet, defendant was convicted of second-degree conspiracy, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree eluding, N.J.S.A. 2C:29-2b; and third-degree resisting arrest, N.J.S.A. 2C:29-2a. Defendant was sentenced to a sixteen-year prison term on the robbery offense, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The sentences imposed on the other offenses were to run concurrently.
Defendant appealed his conviction and sentence. We affirmed. State v. Morgan, No. A-3716-03T4 (App. Div. January 17, 2006), certif. denied, State v. Johnson, 187 N.J. 83 (2006).
Defendant thereafter filed a petition for post-conviction relief (PCR), arguing, in part, that trial counsel was ineffective because he failed to object to the prosecutor's improper summation comments, including an inaccurate and misleading charge on accomplice liability. Defendant also argued that appellate counsel was ineffective in failing to raise trial counsel's deficiencies.
Judge Richard English denied the petition without an evidentiary hearing. In a comprehensive oral opinion, the judge concluded defendant's challenge to the prosecutor's improper summation comments was procedurally barred by Rule 3:22-4. Addressing the merits and defendant's claim of ineffective assistance of counsel, the judge found that although the prosecutor may have exaggerated, his comments all properly referred to either evidence in the record or inferences drawn therefrom and directly responded to defense counsel's credibility attacks on certain witnesses. The judge also found no prejudice in the prosecutor's comments about the accomplice liability charge because Judge Chaiet gave preliminary and final instructions that the jurors alone are the judges of the facts, counsels' comments are not evidence, and the jury should disregard the attorneys' comments and must follow the judge's instructions as he gives them. Further, Judge Chaiet followed the model jury charges relative to all of the counts, which "cleared up" any improper comments the prosecutor may have made on the jury charges. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I: THE TRIAL JUDGE'S JURY CHARGE CONSTITUTED PLAIN ERROR FOR MISSING THE ESSENTIAL ELEMENTS OF THE CRIME. THE TRIAL JUDGE ERRED IN THE KEY ELEMENT OF THE JURY CHARGE, "ACCOMPLICE LIABILITY," FAILING TO INSTRUCT THE JURY THAT EACH DEFENDANT MAY BE GUILTY OF A HIGHER OR LOWER DEGREE OFFENSE, DEPENDING ON EACH DEFENDANT'S STATE OF MIND, INTENT AND ACTIONS
POINT II: IN ORDER TO CHARGE A LESSER-INCLUDED OFFENSE, THERE MUST BE A RATIONAL BASIS FOR A JURY TO REJECT THE GREATER CHARGE AND A CLEAR BASIS IN THE EVIDENCE FOR CONVICTION OF THE LESSER
POINT III: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE OF COUNSEL TO REQUEST THE COURT TO PROPERLY CHARGE THE JURY ON ACCOMPLICE LIABILITY, A [LESSER]-INCLUDED OFFENSE
We agree with the State that defendant's contentions in Points I and II are procedurally barred. Defendant did not raise these issues in his PCR petition and we do not review issues not part of the record. R. 2:5-4, R. 2:6-2; State v. Robinson, 200 N.J. 1, 20 (2009). Further, defendant should have raised these issues on his direct appeal. R. 3:22-4(a) and -5; State v. Afandor, 151 N.J. 41, 50 (1997).
Nonetheless, we have considered all of defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge English in his well-reasoned oral opinion rendered on July 1, 2009. However, we make the following brief comments.
Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), defendant cannot establish ineffective assistance of counsel without demonstrating prejudice. To establish prejudice here, defendant must establish that there was plain error in the court's accomplice liability instructions. See R. 2:10-2; State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Plain error in a jury charge is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Hock, supra, 54 N.J. at 538.
We discern no error, let alone plain error, here. Reviewing the charges as a whole, we are satisfied Judge Chaiet gave the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v, Green, 86 N.J. 281, 287-88 (1981).
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