NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 3, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0384.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the briefs).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Alvarez and Maven.
Defendant Virgil Mitchell appeals from a January 24, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
A jury found defendant guilty of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), (2), as a lesser-included charge of murder (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three and four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven). After appropriate mergers, defendant was sentenced on May 9, 2005, to a thirty-year imprisonment term on the felony murder count, subject to thirty years of parole ineligibility. He was also sentenced to a concurrent four-year term of imprisonment on the unlawful possession of a weapon charge. On appeal, we affirmed the judgment of conviction. State v. Mitchell, No. A-0227-06 (App. Div. Apr. 4, 2008). Defendant was denied certification of his direct appeal by the Supreme Court. State v. Mitchell, 196 N.J. 343 (2008).
The charges arose from defendant's armed robbery and shooting of Serge Guerrier. The victim was purchasing marijuana from defendant when defendant circled around the back and pulled out a gun. He demanded Guerrier's gold chain, and when Guerrier resisted, he shot him. When the victim dropped to the ground, defendant took the gold chain as well as other items of value from the victim's pockets.
Joseph Medlin, a friend of Guerrier, who was standing next to him as he was shot, immediately threw his hands up into the air. Defendant patted him down and also took items of value from him, including a cell phone and money. Later, Medlin identified defendant through a photograph.
A friend of defendant, Shaniqua Jones, testified at trial that defendant called several of his friends to a meeting at which time he allegedly told her to "lie on the stand." He also admitted shooting someone and robbing the person of $800 and a chain. Defendant gave the chain to Jones, who in turn gave it to someone else. In later conversations with Jones, defendant denied that he had killed anyone.
On September 28, 2002, an arrest warrant was issued based on Medlin's identification. A few days later, defendant turned himself in, was arrested, and placed in a holding cell. He refused to give a formal statement and would not sign a Mirandawaiver. Defendant informed the investigating officers that on the evening in question he had patronized a White Castle restaurant with Jones and a second friend, Duwan Jeter. While there, he had spoken briefly with an off-duty policeman named Isaac Eason, who was working a second job as a security guard. After Eason met with defendant at the police station at defendant's request, defendant signed the Miranda waiver but denied any wrongdoing. He suggested the officers meet with Jones and Jeter, however, claiming they could confirm his whereabouts and lack of culpability.
Defendant filed a timely PCR petition in which he and his attorney asserted a host of grounds for relief, the principal among those being ineffective assistance of counsel. The PCR judge denied the petition, reasoning that since defendant's Bruton and Miranda claims were adjudicated by the trial court, they were therefore barred by Rule 3:22-5. The PCR petition also raised an impermissibly suggestive identification claim as to Medlin, but no facts were asserted in ...