January 18, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES L. MINCEY, A/K/A CHARLES LAQUE MINCEY, CHARLES LAQUE WRIGHT, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 heart about this?
Q. And when is the first time that you started to have a change of heart?
A. Like a year.
Almost none of Reed's direct testimony consisted of his telling his version of the events in his own words. Rather, through leading questions, PCR counsel had him confirm the contents of his affidavit exculpating defendant. On cross-examination, Reed stated that he was the shooter and that he lied under oath when he gave an earlier statement implicating defendant in the shooting. In answer to a question from the court, Reed confirmed that he and defendant had been incarcerated together at the Garden State Correctional facility in 2005 and at Northern State Prison in 2010.
Defendant testified that at the time he pled guilty, he knew that Reed had identified him as the shooter in order to get the benefit of a plea bargain. Defendant testified that if he had known Reed would recant that statement, and if he had known that Soyer would recant his identification of defendant, he would not have pled guilty. He testified that he pled guilty because his attorney advised him that he was almost certain to be convicted and could face a life sentence. He therefore agreed to plead guilty even though he was innocent.
On cross-examination, defendant testified that even though he and Reed were incarcerated together, they never discussed the case, and he had no idea how Reed came to provide an exculpatory affidavit. He was also confronted with his plea allocution, in which he admitted that the murder weapon was his gun and admitted shooting Charlestin, and his pre-sentence interview, in which he admitted the crime and stated that he apologized to the victim's family.
Defendant's former trial attorney, Wayne Powell, also testified. He admitted that prior to defendant's trial, defendant told him that Reed had "exculpatory information." He did not attempt to interview Reed, because Reed was a co-defendant and was represented by counsel. Powell could not "imagine for a second that [Reed's attorney] would allow me or anybody else to talk to his client while he was the subject of an indictment." However, Powell expected to have a chance to cross-examine Reed if he testified at the trial.
According to Powell, before Reed was produced in front of the jury, he exercised his Fifth Amendment right not to testify, at "a Rule 104 hearing." Powell understood that Reed refused to testify in order to "protect his own plea agreement." Therefore, at defendant's trial, Reed "was merely permitted as in the Allen case*fn1 to stand near Mr. Mincey so that the jurors could make some comparison of the relative size, complexion, and things like that with respect to the respective . . . co-defendants." Powell did not believe that Reed had waived his Fifth Amendment privilege merely by testifying as to his name and, therefore, understood that the defense could not call him as a witness.
Powell testified that there was some basis to believe Reed was the shooter, because Reed was found in possession of the gun a few days after the shooting. Powell did not testify that he had any reason to believe his client was completely uninvolved in the robbery. To the contrary, he believed his client was involved, but may not have done the shooting. His advice to defendant to plead guilty was based on "where we were at that time on that particular trial." Powell believed that it was in his client's interest to accept a twenty-five year NERA sentence, rather than face life in prison including "30 years without parole."
In a written opinion issued July 26, 2011, the PCR judge made detailed credibility findings, rejecting the testimony of defendant and the co-defendant. His findings included a detailed description of Reed's smirking demeanor and inconsistent testimony: "Mr. Reed's testimony was littered with smirking, evasive answers, sloping in his seat and general disrespect towards the State, defense counsel and the Court." The judge also found defendant's testimony completely incredible for reasons he explained in detail.
The PCR judge further found that trial counsel was not ineffective for failing to make additional efforts to obtain Reed's testimony. He concluded that, at the time of the 2004 trial, counsel could not have convinced Reed to testify in defendant's favor. The judge also found no basis under State v. Slater, 198 N.J. 145 (2009), to allow defendant to withdraw his guilty plea. He found that defendant and Reed were "attempting to manipulate the system" and there was "no manifest injustice in holding the defendant to his knowing and voluntary guilty plea."
On this appeal, defendant raises the following points of argument for our consideration:
POINT I -THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST A DECEPTION THAT A STATE'S WITNESS INVOKED A VALID FIFTH AMENDMENT CLAIM WAS VIOLATED. POINT II -THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO CROSS-EXAMINE CO-DEFENDANT REED BASED ON HIS BELIEF THAT REED HAD INVOKED A VALID FIFTH AMENDMENT PRIVILEGE WAS INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST.
POINT III -THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION WAS VIOLATED.
POINT IV -PURSUANT TO STATE V. RUE, 175 N.J. 1 (2002), AND STATE V. WEBSTER, 187 N.J. (2006), DEFENDANT REASSERTS THE FOLLOWING ISSUES RAISED IN POST-CONVICTION RELIEF.
THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, RIGHT TO A FAIR TRIAL AND TO DUE PROCESS OF LAW UNDER THE STATE AND FEDERAL CONSTITUTIONS SINCE TRIAL COUNSEL FAILED TO DISCOVER THAT HOWARD REED BELIEVED THE DEFENDANT WAS ONLY PRESENT AT THE CRIME SCENE PRIOR TO ENTERING INTO THE PLEA AGREEMENT AND THE DISCOVERY OF SUCH EVIDENCE QUALIFIED AS NEWLY DISCOVERED EVIDENCE WHICH WOULD ALLOW FOR THE PLEA AGREEMENT TO BE VACATED.
DEFENDANT RECEIVED AN ILLEGAL SENTENCE.
TRIAL COUNSEL'S STATEMENT THAT, IF THE CASE WAS TRIED TO CONCLUSION, DEFENDANT WOULD BE GUILTY OF MURDER, ROBBERY, OR FELONY MURDER DENIED DEFENDANT HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE AND FEDERAL CONSTITUTIONS.
TRIAL COUNSEL WAS INEFFECTIVE DURING THE PLEA AND SENTENCING HEARINGS.
THE CUMULATIVE EFFECT OF THE GROUNDS FOR POST-CONVICTION RELIEF IDENTIFIED BY DEFENDANT WARRANT VACATION OF HIS CONVICTIONS AND THE GRANT OF A NEW TRIAL.
DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA PURSUANT TO STATE V. SLATER.
In a supplemental pro se brief, defendant raises these additional points:
THE TRIAL COURT ERRED IN DETERMINING THAT THE DEFENDANT FAILED TO MEET THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST BUT THAT HE DID MEET THE SECOND PRONG OF THE TEST, AND ITS DECISION THAT DEFENDANT DID NOT MEET THE FIRST PRONG WAS NOT SUPPORTED BY SUFFICIENT, CREDIBLE EVIDENCE IN THE RECORD, THEREFORE, THE DEFENDANT'S CONVICTION OR PLEA SHOULD BE VACATED.
THE TRIAL COURT ERRED BY DENYING RELIEF WHEN IT HELD THAT THE DEFENDANT MEETS THREE OF THE FOUR SLATER FACTORS FOR THE WITHDRAWAL OF THE PLEA, TO ONLY FACTOR [SIC] MET BY THE STATE, THEREFORE, THE DEFENDANT'S PLEA SHOULD BE VACATED.
Based on our review of the record and the applicable law, we find all of these arguments without merit. Except as addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
On this appeal, we must accept the PCR judge's factual findings, so long as they are supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). We owe particular deference to the judge's evaluation of the witnesses' credibility, because he had the opportunity to hear them testify and observe their demeanor. Id. at 474.
"We recognize that post conviction statements of persons who did not testify at trial, particularly when serving time at the same institution as the defendant, are 'inherently suspect.'" Allen, supra, 398 N.J. Super. at 258 (quoting State v. Robinson, 253 N.J. Super. 346, 367 (App. Div.), certif. denied, 130 N.J. 6 (1992)). But in this case, we do not rely on that principle in rejecting defendant's PCR contentions. As in Allen, we required that defendant be given an evidentiary hearing. Id. at 258-59. Reed testified, and the PCR judge had the opportunity to decide whether his testimony was believable. Having thoroughly reviewed the record, we find no basis to disturb the judge's well-explained decision that Reed was not a credible witness. Likewise, we find no basis to second-guess his decision that defendant's testimony was not credible.
The judge's factual findings are determinative of this appeal. The PCR hearing produced no credible evidence that defendant was not a participant in the robbery or that he was not the shooter. Moreover, Reed's testimony clearly established that defendant's trial counsel was not ineffective when he strongly advised defendant to accept the plea bargain the State was offering. At that point, Reed would not have given favorable testimony even if defense counsel had attempted to cross-examine him or had called him as a witness.
On May 27, 2004, when defendant pled guilty, the State had just presented eyewitness testimony that he was the ringleader in the robbery and that he was the shooter. Even if the jury found that he was not the shooter, he was facing a likely conviction for felony murder, and the probability of a very long sentence. As the judge noted at the sentencing, at age nineteen, defendant already had six juvenile adjudications and eleven adult arrests, including a pending out-of-state charge for assault with a deadly weapon. Under all the circumstances, we cannot find that Powell rendered ineffective assistance of counsel in advising defendant to accept a twenty-five year NERA sentence rather than risk a murder conviction and a life sentence. See State v. Gaitan, 209 N.J. 339, 350-51 (2012); State v. DiFrisco, 137 N.J. 434, 457 (1994). Nor is there any other basis to permit defendant to withdraw his guilty plea. See Slater, supra, 198 N.J. at 157-58.