On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2455.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013
Before Judges Reisner and Harris.
Defendant Charles L. Mincey appeals from a July 26, 2011 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged with first-degree murder and other offenses, following a 2001 armed robbery that took place in a taxi van in Atlantic City. During the robbery, Fritz Charlestin was shot to death while his companion, Steve Lemus, escaped injury. The State's theory of the case was that defendant, then age nineteen, and Howard Reed, then age seventeen, had committed the robbery together but that defendant was the shooter. Reed pled guilty on March 25, 2004, to first-degree robbery in the taxi van incident, as well as to a later unrelated shooting. In Reed's plea allocution on the robbery, he implicated defendant, stating that defendant was taking valuables from the victims while Reed held them at gunpoint and that Reed then handed the gun to defendant. Reed was not sentenced until June 4, 2004, which was after defendant's trial.
Defendant's trial began on May 25, 2004. During two days of testimony, the taxi driver, Christopher Soyer, identified defendant as the instigator during the robbery, although Soyer did not actually see defendant shoot Charlestin, who was sitting in the back of the van. Lemus, who was sitting next to Charlestin during the shooting, testified that defendant shot Charlestin and then shot at Lemus, who escaped injury by ducking behind the seat. Lemus identified defendant, with "100%" certainty, as the shooter. Another witness, who was well-acquainted with defendant and Reed, testified that she had been a passenger in the van but departed before the robbery occurred. She testified that defendant and Reed were both passengers in the van, and that the two men were dressed differently from each other and did not look alike. Reed was produced in court, for the limited purpose of giving his name and standing next to defendant so the jury could compare their physical appearances.
On the third trial day, defendant agreed to plead guilty to aggravated manslaughter. On his direct appeal, on an excessive sentence calendar, we affirmed his sentence of twenty-five years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. State v. Mincey, No. A-3989-04 (App. Div. Feb. 7, 2006).
In 2007, defendant filed a PCR petition, claiming that he had obtained newly-discovered evidence in the form of three exculpatory affidavits, and asserting that he was innocent but his trial counsel coerced him into pleading guilty. One affidavit was from Reed, who now claimed that he was the shooter and that defendant was a mere bystander who did not participate in the robbery. In an apparent attempt to explain why he did not come forward sooner, Reed attested, "I could not say anything about the truth [at the time of defendant's trial] because I did not want to get myself any more time." The other two affidavits were from individuals who alleged that they heard Soyer recant his identification of defendant as a participant in the robbery.
The PCR judge denied the petition without a hearing. However, on appeal from the PCR denial, we remanded the case for an evidentiary hearing, "limited to the issue of the exculpatory evidence of co-defendant Reed and that which may be developed from Soyer, if any." State v. Mincey, No. A-1029-09 (App. Div. Jan. 6, 2011) (slip op. at 13). We noted that the trial judge should determine whether "the exculpatory evidence is credible" and "whether defense counsel's failure to call Reed as a witness . . . compromised defendant's decision to plead guilty." Id. at 12-13.
At the hearing on remand, the defense presented testimony from defendant, Reed, and defendant's former trial counsel, but not from Soyer or the witnesses who allegedly heard Soyer recant his identification. In his testimony, Reed asserted that defendant was not involved in the robbery. However, consistent with his affidavit, he also confirmed on cross-examination that he would not have testified to that exculpatory version of events at defendant's trial, for fear of losing the benefit of his plea bargain:
Q. If I understand you correctly, Mr. Reed, what you're saying is that before you were sentenced, . . . you were not going to say what you said about Mr. Mincey not being involved because you were afraid it was going to jeopardize your sentence in some way; is that correct?
Q. Okay. But at some point afterwards you had a change of ...