On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-05-632.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 28, 2012
Before Judges Cuff and St. John.
Defendant Shakore A. Collins appeals from the denial of his petition for post-conviction relief (PCR). A jury found defendant guilty of second degree reckless manslaughter, N.J.S.A. 2C:11-4b(1); second degree robbery, N.J.S.A. 2C:15-1; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree unlawful possession of a weapon (a shotgun) without a permit, N.J.S.A. 2C:58-3, N.J.S.A. 2C:39-5c(1). After dismissing the possession of a weapon for an unlawful purpose conviction and merging the unlawful possession of a weapon without a permit with the reckless manslaughter conviction, the trial judge sentenced defendant to a nine-year term of imprisonment with an eighty-five percent NERA*fn1 parole ineligibility term for reckless manslaughter, and a consecutive eight-year term of imprisonment with an eighty-five percent NERA parole ineligibility term for the robbery conviction.
On appeal, we affirmed defendant's convictions but reversed and remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Collins, No. A-4677-03 (App. Div. Nov. 2, 2006), certif. denied, 191 N.J. 317 (2007). On remand, the trial judge resentenced defendant to the same terms. We affirmed that sentence on appeal. State v. Collins, No. A-2106-07 (App. Div. Apr. 30, 2009).
The charges arise from the shooting of a woman in her home. The facts are recited in our earlier opinion in which we affirmed defendant's conviction. Collins, supra, A-4677-03 (slip op. at 4-10). Briefly, co-defendants Shane Burns and Turi Reddick hatched a plan to gain access to the victim's house to steal money and/or drugs from the victim's son, who lived in the house. Id. at 5-6. Burns and Reddick picked up defendant and by the time they arrived at the victim's house defendant knew that his role was to knock on the front door of the house. Id. at 7-8. When someone opened the door, Riddick would rush the door. Id. at 8. Defendant also knew that Riddick had picked up a gun before they arrived at the house and armed himself with the gun before they approached the house. Ibid.
Defendant's petition for PCR focuses on two issues: the jury instruction at trial on accomplice liability, and the failure of trial counsel to object to the testimony that the victim's young grandchildren were in the nearby living room when their grandmother was shot. Defendant had challenged the accomplice instruction in his pro se brief on direct appeal, id. at 3, and we held this issue was without merit, id. at 20. In his petition, defendant highlighted a sheet of offense elements the trial judge provided to the jury. This summary included the elements of accomplice liability. Defendant argues this summary did not reflect his version of events in that it "had the capacity to influence or coerce a guilty finding on the reckless manslaughter charge, because it omitted [defendant's] defense to the charge, i.e., that he did not aid in the commission of the homicide, that he did not have a purpose to promote the crimes, and that he did not have the same state of mind as the co-defendants." Defense counsel consented to its submission. Appellate counsel did not raise this issue on direct appeal.
Judge Moynihan dismissed the petition without an evidentiary hearing. In his April 1, 2010 oral opinion, the judge reviewed the instructions provided to the jury by the trial judge noting that the trial judge forcefully instructed the jury that his oral instructions controlled the deliberations. He also held that the judge properly instructed the jury on accomplice liability in his oral charge and expressly summarized defendant's defense to the charges. Judge Moynihan concluded his review of the accomplice liability charge delivered at trial by finding that "[t]here is no doubt that the jury was apprised of defendant's theory of the case as it related to accomplice liability and the homicide charges."
The judge concluded that the failure to object to the summary of offenses and accomplice liability elements could not be considered ineffective assistance of trial or appellate counsel because "the jury charge was not objectionable" and "was accurate, fair and balanced. It did not lead to an inconsistent verdict. It did not foreclose an acquittal on the reckless homicide charge. It clearly explained the law relevant to all the charges the jury considered, allowing them to reach a fair and impartial verdict."
Addressing the failure to object to testimony of the presence of the grandchildren, Judge Moynihan held that the trial judge placed limits on the admission of this evidence to reduce the prejudice to defendant. He held that evidence was relevant and did not unduly prejudice defendant.
On appeal, defendant raises the following arguments:
POINT I THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO THE SUPPLEMENTAL WRITTEN INSTRUCTIONS RESULTED IN A DEFICIENT PERFORMANCE AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF ...