NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2012
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 99-07-0665.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
Before Judges Sabatino and Maven.
Defendant Terrence Brewer appeals the Law Division order dated September 10, 2010 denying him post-conviction relief (PCR). We affirm.
The charges against defendant arose from incidents occurring during the afternoon of July 21, 1998 on Centre Street in Trenton, New Jersey. There was conflicting evidence produced at trial. Ahmad Harris testified that defendant robbed him of cash, a gold chain, and drugs at gunpoint during an attempted drug transaction between Harris and defendant in a driveway off Centre Street. Defendant then fled, followed by Harris, who picked up a bottle while yelling that he had been robbed. During the chase, defendant was riding a bicycle and pointed his handgun at Harris. As Harris reached Broad Street, he saw his friend, Andrew Powell, running from Centre Street toward defendant. When Powell was four to five steps from defendant, defendant shot Powell twice. Harris later identified defendant at police headquarters, as well as the gun defendant used to rob him.
An eyewitness to the shooting, Samuel Johnson, stated he was driving home from work at approximately 4:00 p.m. when he saw two males being chased by a man holding a bottle in his hand at the intersection of Ferry and Broad Streets. Johnson identified defendant, who was pushing a bicycle, as one of the men being chased and Ray Carter as the other. Johnson stated that Harris raised the bottle as if to strike defendant and said to "give it up." Johnson then saw defendant reach into his waistband, pull out a handgun, and point it at Harris, causing Harris to step back. Defendant then continued on the bicycle toward Broad Street.
Johnson decided to follow defendant and saw Harris continue his pursuit of defendant, but at a distance. When defendant reached Broad Street, he dropped the bicycle and began walking toward Market Street. Johnson then saw three males, including Harris, running from Centre Street toward defendant. Johnson heard Harris yell to the other two men, one of whom was Powell, that defendant's gun was a fake. Defendant then pulled the gun from his waistband and shot Powell, who had confronted defendant. Powell was about one to two feet away from defendant when he was shot. Johnson stated that Powell had nothing in his hands at the time. Powell died from gunshot wounds.
Johnson followed defendant and Carter, and saw Carter enter a residence on Clay Street. He had also seen defendant discard clothing while walking toward the Clay Street area. Johnson went back to the scene of the shooting, informed the police about his observations, and led them back to the Clay Street residence. When the police arrived, Carter was on the porch and informed the police that defendant, his brother-in-law, was inside the house. Carter consented to a search of the house. Police found defendant in the attic, breathing heavily and sweating. When taken outside, Johnson identified defendant as the shooter.
Defendant testified to a different version of the incident. Defendant admitted that he went to the Centre Street area with Carter in an attempt to purchase drugs from Harris. Carter waited for him at the corner of Centre and Broad Streets. However, when Harris took him into the driveway, Harris pulled a handgun and demanded money. After dropping the money on the ground to distract Harris, defendant attacked Harris, grabbed the money and gun, and ran from the driveway. As Harris began to scream, defendant saw two males running towards him, so he ran out of the alley towards Ferry Street.
Defendant stated that during the chase, Harris tried to hit him with a bottle and defendant pulled out the gun to make him back off. As defendant continued toward Broad Street, he saw Powell holding Carter up against a wall. Powell then approached defendant, reaching behind his back and pulling out what defendant thought was a gun. Defendant ducked ...