On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-01-0231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012
Before Judges Sapp-Peterson and Ostrer.
Defendant, James Comer, appeals the trial court order denying his motion for post-conviction relief (PCR). Defendant alleges ineffective assistance of counsel on the grounds that his trial counsel did not raise the issue of possible juror impropriety and did not properly inquire or pursue newly discovered evidence with regard to a co-defendant who testified against him during trial. We reverse and remand for an evidentiary hearing on what, if anything, trial counsel knew about the relationship of one of the empanelled jurors to defendant's mother, and the input, if any, her presence on the jury may have had to defendant's right to a fair trial.
A jury convicted defendant of Count 1, second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1, and N.J.S.A. 2C:11-3; Count 3, first-degree felony murder, N.J.S.A. 2C:11-3a; Counts 7, 10 and 13, first-degree robbery, N.J.S.A. 15-1; Count 16, third-degree theft, N.J.S.A. 2C:20-3a; five third-degree weapons offenses, Counts 5, 8, 11, 14, and 17, N.J.S.A. 2C:39:-5b; and four second-degree weapons offenses, Counts 6, 9, 12, and 15, N.J.S.A. 2C:39-4a. The conviction arose out of a crime spree committed by defendant and his two co-defendants over two consecutive days in April 2000. The convictions were based on the testimony of defendants' accomplice, Dexter Harrison, who was separately indicted and who agreed to testify at defendant's trial; eye-witness identifications from the three surviving robbery victims; and the arrest of the three defendants at the end of the crime spree while they were still together in the vehicle used during the robberies and murder. Also recovered from the vehicle were stolen items and one of the handguns used to commit the crimes.
At sentencing, the court imposed a thirty-year term of imprisonment without parole for felony murder, three consecutive fifteen-year terms with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree armed robbery offenses, and concurrent four-year terms on the weapons offenses. The aggregate sentence imposed was seventy-five years with a sixty-eight-and-one-quarter year parole ineligibility. Defendant timely appealed, claiming: (1) unduly suggestive photo identifications; (2) a mistrial should have been granted as a result of a statement made during the testimony of Harrison; (3) prosecutorial misconduct; (4) reversible error caused by the court's failure to question the jurors about the nature of the problem with a juror who purportedly was not participating in deliberations; (5) error in the manner the court handled jury questions; and (6) imposition of an excessive sentence.
On appeal, we affirmed both the conviction and the sentence imposed. State v. Comer, No. A-6307-03 (App. Div. December 28, 2006). Defendant filed a petition for certification on the issues of unduly suggestive identifications, Harrison's testimony, and the sentence imposed. The Court granted the petition, State v. Comer, 191 N.J. 315 (2007), and consolidated the appeal with the petition for certification filed by his co-defendant Ibn Ali Adams. The Court affirmed defendant's conviction and sentence. State v. Adams, 194 N.J. 186 (2008).
Defendant filed a pro se PCR petition on July 9, 2008, and defense counsel subsequently filed a supplemental formal brief, as well as a supplemental letter brief, in support of this petition. The trial court denied defendant's petition. In a written opinion memorializing the court's decision, the court found: (1) defendant's claims relating to his sentence were previously adjudicated on direct appeal and were barred pursuant to Rule 3:22-5; (2) other claims were procedurally barred under Rule 3:22-4; (3) defendant was not prejudiced by the joint trial with Adams; (4) Harrison's post-conviction affidavit did not exonerate him of the murder; and (5) there was insufficient evidence of juror impropriety. The present appeal followed.
On appeal, defendant raises the following point for our consideration:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL['S] INEFFECTIVENESS. (PARTIALLY RAISED BELOW).
A. TRIAL COUNSEL FAILED TO PURSUE DEFENDANT'S CONSTITUTIONAL RIGHT TO BE TRIED BEFORE AN IMPARTIAL JURY.
B. TRIAL COUNSEL FAILED TO PURSUE NEWLY DISCOVERED EVIDENCE, THAT THE STATE'S KEY WITNESS RECANTED HIS ...