NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-01-0296.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, on the brief).
Before Judges Ashrafi and Leone.
Defendant James T. Cooks appeals from the denial of his petition for post-conviction relief (PCR). He claims that the PCR judge failed to afford an opportunity to call a witness at the PCR hearing. We affirm.
Defendant's convictions arose out of the killing of James Biddle, Jr. in the City of Camden on February 26, 2002. Defendant and co-defendant William D. Reese were charged with first-degree murder, N.J.S.A. 2C:11-3a(1) or (2), second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, second-degree possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4a, third-degree unlawful possession of handguns, N.J.S.A. 2C:39-5b, and second-degree persons not permitted to have firearms, N.J.S.A. 2C:39-7b. Defendant and Reese were tried separately.
At defendant's trial, the State presented testimony from two eyewitnesses, Marisol Cortez and Randall Williams. Cortez testified that she saw Biddle, who was known as "Duck, " approach Williams, who was selling drugs. Biddle robbed Williams of several bags of heroin, and sold the heroin. Cortez warned Biddle that there would be "some problems" because Williams would summon the owners of the drugs. About twenty minutes later, Cortez saw defendant and Reese approach wearing hoods. They hurried toward Biddle, whipped out their guns, surrounded Biddle, and each shot him several times from at least three feet away. Cortez was certain that Biddle never pulled out a gun. Biddle was later taken to a hospital, where he died as a result of the gunshot wounds.
Williams testified that he had been selling drugs when Biddle approached him, pulled out a gun, and said that he should leave the corner and stop selling drugs or he would be "deal[t] with." Biddle then took money and heroin from Williams. Williams then called defendant, because Williams was selling drugs for defendant and Reese. Williams informed defendant of what had occurred, and defendant said he and Reese would be right there to "deal with it." About twenty minutes later, Williams saw defendant and Reese approach with guns drawn, defendant holding his big revolver and Reese holding an automatic handgun. They boxed in Biddle and shot him from three feet away. Williams said that Biddle "didn't have [any] time to pull out a gun."
At trial, the prosecution introduced defendant's taped statement to police the day after the killing, in which defendant admitted shooting Biddle with a .357 revolver, and discarding the revolver in a vacant garage. From the garage, police recovered the .357 magnum revolver containing six empty shell casings. At trial, the medical examiner testified that Biddle was killed by five bullets, fired from no closer than two or three feet. The medical examiner recovered two bullets from Biddle's body, one bullet entering from the front and one from the back. The ballistics expert testified that the bullet entering from the front came from the .357 revolver, and the bullet entering from the back was from another gun.
Defendant did not testify at trial. Instead, trial counsel crafted a defense based upon defendant's taped statement, which stated as follows: He was told that there was a man (Biddle) outside with a gun who had been paid to kill him by "Tito" and "Joe." Defendant went outside. Biddle approached defendant and "pulled out a big revolver" and was trying to pull out an automatic handgun with his other hand. Defendant grabbed Biddle's wrist and the revolver. They struggled, and defendant turned the barrel away from him and the revolver went off more than once. Defendant did not mean to shoot or kill Biddle, but defendant was in fear for his life. Biddle fell back and started pulling out the automatic, trying to shoot ...