On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-10-2257.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Kennedy.
This is an appeal of the trial court's denial of post-conviction relief ("PCR"). Following a jury trial in 2003, defendant Sean Malcolm was convicted of felony murder, aggravated assault, and related offenses arising from the shooting death of Carlos Phillips on May 7, 2002, in Jersey City.
The murder was not directly observed by any third party. The decedent's body had been found in his basement apartment. Defendant lived in the same building. A few days before the homicide, defendant had complained to the landlord, Ernest Florio, that someone had broken into his own apartment and had stolen various items. Florio told defendant that he could look for the stolen items in the other apartments and the basement. Phillips and his girlfriend were in the basement when Florio, defendant, and Warren Braxton, defendant's companion, arrived to complete the search. Florio recalled that Braxton had a gun.
Two nights later, Florio was awakened by gun shots and banging on the door. At that point, Florio ran downstairs and saw defendant get into his car and drive away. Braxton and a third male were with defendant.
Defendant did not testify at trial. Although his trial attorney served an alibi notice on the State, she ultimately elected not to call any alibi witnesses. Defendant did call a toxicology expert, who found cocaine and morphine in the victim's blood.
Following the jury verdict, the trial judge*fn1 sentenced defendant to an aggregate custodial term of fifty years, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In May 2007, we affirmed defendant's convictions on direct appeal. State v. Malcolm, No. A-3186-04 (App. Div. May 22, 2007). We only remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). The aggregate sentence was thereafter reduced by the trial court to thirty years. The Supreme Court denied certification. State v. Malcolm, 192 N.J. 481 (2007).
In October 2007, defendant filed a PCR petition, asserting that he had been deprived of the effective assistance of trial and appellate counsel. The judge assigned to consider the petition determined that the only issue that warranted an evidentiary hearing was defendant's claim that his trial attorney should have called the proposed alibi witnesses: defendant's friend, Melissa Wright, and his nephew, Tiquan Gwyn.
Having set aside the alibi witness issues, the PCR judge denied various other arguments of ineffectiveness raised by defendant. In particular, she rejected his claim that the jury charge on accomplice liability was flawed. She also rejected his claim that a jury charge on cross-racial identification was required as to the decedent's girlfriend who had seen defendant and the other man approach the victim with a gun before she ran for help. In this respect, the PCR judge relied on language in our 2007 opinion validating the jury charge and rejecting defendant's pro se claims that it had been flawed. The PCR judge further rejected defendant's claim that his sentence was excessive and that his appellate attorney was ineffective.
The PCR judge held hearings over the course of several days from April through July 2009. Several witnesses testified at the hearing, including Wright, Gwyn, defendant, and his prior trial counsel.
According to trial counsel's testimony at the PCR hearing, which the judge found credible, she did not call either of the supposed alibi witnesses because she did not think they would be helpful. In particular, the attorney testified that Wright was not believable, and it appeared that her statement may well have been scripted or suggested by defendant himself. Likewise, the attorney did not think that Gwyn was credible because his testimony was vague. ...