On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 95-08-0852.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Koblitz.
Defendant Norman Mikel was found guilty after a jury trial of felony murder, armed robbery and various other charges in connection with a 1995 armed robbery of an Elizabeth convenience store during which the owner was shot by Mikel's co-defendant, Corey Barksdale. Defendant was convicted on the theory that he was the lookout during the robbery. His defense was that his brother, Allen Mikel, was the true culprit. We affirmed the convictions except for one attempted theft count, which is not relevant here. State v. Mikel, No. A-4117-96 (May 13, 1999), certif. denied, 162 N.J. 663 (1999).
On April 7, 2000, defendant filed a petition for post-conviction relief (PCR) alleging ineffective assistance of both trial and appellate counsel as well as other issues. PCR counsel filed a brief on November 30, 2005. On June 9, 2006, and August 8, 2006, an evidentiary hearing was held and a written opinion was issued on January 18, 2008, denying defendant's petition.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.
At trial, defendant called his co-defendant, Barksdale, to testify that defendant's brother, not defendant, was the lookout in the armed robbery during which the store owner was killed. Barksdale did not exculpate defendant in his testimony. Barksdale had implicated defendant to the State, and as part of his plea agreement with the State, he agreed to be available to testify truthfully if called as a witness by the State.
However, defense counsel, not the State, called Barksdale to testify. After consulting with counsel, in the middle of his testimony and outside of the jury's presence, Barksdale, who had not yet been sentenced pursuant to his plea agreement, chose not to testify further based on his Fifth Amendment right not to incriminate himself. The trial court struck all of Barksdale's testimony and instructed the jury not to consider any of it.
Defendant alleged in his PCR petition that Barksdale now presented "newly discovered evidence" of defendant's innocence. Barksdale testified at the PCR hearing that defendant's brother and not defendant participated in the robbery. Barksdale said he waited five years to make this known because "[n]obody never approached me. . . . I figured I already had my deal, I'll leave well enough alone." He testified that his own attorney pressured him to plead guilty and wrongly implicate defendant. Barksdale's defense attorney testified to the contrary, that Barksdale consistently maintained that defendant was the lookout, and, in fact, planned the fatal armed robbery.
In a written opinion denying defendant's application, the PCR court found that Barksdale lied at the PCR evidentiary hearing, describing him as "hesitant, purposely vague [and] double-talking." The court found Barksdale's testimony was "more than inherently suspect; it was false, unsupported and totally divergent from his previous statements . . ."
Defendant raises the following issues on appeal:
PROOF THAT COREY BARKSDALE HAD EXCULPATED MR. MIKELL ENTITLED HIM TO A NEW TRIAL. ACCORDINGLY, THE PCR COURT'S DECISION DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ...