STATE OF NEW JERSEY v. NAEEM MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5571-07T45571-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NAEEM MILLER,

Defendant-Appellant.

 

Submitted September 14, 2009 - Decided

Before Judges Alvarez and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1830.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Naeem Miller appeals the February 8, 2008 denial of his petition for post-conviction relief (PCR) based on claims of ineffective assistance of both trial counsel and PCR counsel. We affirm.

Tried to a jury, defendant was convicted of: first-degree murder, N.J.S.A. 2C:11-3(a)(2); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was sentenced on May 13, 2005, to a custodial term of thirty years without parole for the murder, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive seven-year sentence, also subject to NERA, for the aggravated assault conviction. A concurrent four-year sentence was imposed for the offense of unlawful possession of a handgun and the remaining crime of possession of a handgun for unlawful purpose was merged.

On direct appeal, defendant contended that the trial court erred: in its identification instructions; by failing to instruct the jury on the lesser-included offenses of aggravated and reckless manslaughter; in providing the jury with confusing and contradictory instructions concerning the offense of aggravated assault; and by imposing an excessive sentence. Both the convictions and sentence were affirmed. State v. Miller, No. A-6464-04 (App. Div. Jan. 8, 2007) (slip op. at 2-3). Defendant's petition for certification was denied. State v. Miller, 190 N.J. 392 (2007).

The facts and circumstances leading to defendant's conviction for the murder of Timothy Phillips, and the shooting of Stacy Davis, on December 16, 2001, are recounted at length in our decision on the direct appeal. It is sufficient to note that Phillips was shot multiple times at close range. The shooting occurred after a physical altercation inside a bar between defendant and Timothy's brother, Kevin. Phillips and Davis were shot in the aftermath outside the bar. Davis was merely a bystander, injured by stray bullets as he was fleeing the scene. Davis was able to select defendant's photograph from an array after the incident; Kevin was not. At trial, Davis was not able to identify defendant, who, since the shooting, had changed his hairstyle from the dreadlocks he had worn that night, and had grown a beard. In fact, Davis denied that the person in the photograph, whom he positively identified as the shooter, was the same person as defendant.

Another bystander who identified defendant from a photo array, Felicia Wright, testified at trial that she heard six or seven gunshots as she left the bar, and saw defendant running away while holding a black automatic handgun. She recalled that defendant had worn his hair in dreadlocks on the night of the incident, and said she had never seen his hair cut in the fashion that it was at trial, nor seen him with the beard he had grown by that date. Wright was acquainted with defendant because he was her child's father's cousin. Defendant was not arrested until approximately two years after the incident.

Defendant pro se filed a PCR petition on May 17, 2007, alleging prejudicial trial errors, prosecutorial misconduct and ineffective assistance of appellate counsel. Pursuant to defendant's request and the principles established in State v. Rue, 175 N.J. 1 (2002), defendant's subsequently-appointed PCR counsel argued the following to the motion court: (1) that trial counsel rendered ineffective assistance of counsel by failing to object to the court's identification instruction, which misstated the evidence and unfairly summarized it; (2) that trial counsel rendered ineffective assistance of counsel by failing to request an instruction on aggravated and reckless manslaughter; (3) that trial counsel rendered ineffective assistance of counsel by failing to object to the court's "confusing and contradictory" jury instructions; (4) that trial counsel rendered ineffective assistance of counsel by failing to move for a judgment of acquittal regarding the unlawful possession of a weapon; (5) that the trial judge altered the outcome of the trial by testifying; (6) that the prosecutor committed misconduct by overreaching; (7) that there was a constructive amendment of the indictment; (8) that the judge tailored the charge to the jury; and (9) "overall fundamental injustice." Defendant had also requested that PCR counsel raise an alleged conflict of interest on the part of his trial attorney, who had represented the murder victim on at least one prior occasion.

Defendant's attorney on appeal now raises the following points:

POINT I - THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED DUE TO INEFFECTIVENESS OF TRIAL COUNSEL.

1. Trial Counsel Failed To Object To The Court's Identification Instruction Which Both Misstated The Evidence And Summarized It In An Unbalanced And Misleading Manner.

2. Trial Counsel Failed To Request Aggravated And Reckless Manslaughter Charges As Lesser-Included Offenses Of Murder.

3. Trial Counsel Failed To Object To The Court's Confusing And Contradictory Instructions, Which Erroneously Told The Jury That It Could Convict Defendant Of Aggravated Assault If It Found That He "Purposely, Knowingly, Or Recklessly . . . Attempt[ed] To Cause Serious Bodily Injury."

POINT II - THIS MATTER MUST BE REMANDED BECAUSE PCR COUNSEL FAILED TO ADVANCE DEFENDANT'S CLAIM OF TRIAL COUNSEL'S CONFLICT OF INTEREST. (Not Raised Below).

As the motion court noted, petitioner's first point as to alleged errors in the charge could not constitute a basis for PCR relief as they had already been addressed on the direct appeal. A prior adjudication on the merits is conclusive "whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." R. 3:22-5. In fact, our prior decision affirming the conviction on direct appeal recites defendant's first three point headings in virtually identical language as contained in the PCR petition. Miller, supra, A-6464-04 (App. Div. Jan. 8, 2007) (slip op. at 2-3). Hence, we see no error in the court's ruling on petitioner's first point.

Defendant's second contention on appeal is that the matter must be remanded because PCR counsel failed to advance his claim that trial counsel's representation was ineffective due to a conflict of interest. More specifically, defendant points to the fact that PCR counsel had, on at least one occasion, represented the murder victim. Defendant requested that PCR counsel raise the issue, and PCR counsel was obliged to do so pursuant to State v. Rue, supra, 175 N.J. at 16-17 and State v. Webster, 187 N.J. 254, 257-58 (2006).

In fact, in defendant's pro se brief in support of his appeal, he argues only the conflict of interest issue:

POINT I

THIS MATTER MUST BE REMANDED BECAUSE PCR COUNSEL FAILED TO ADVANCE DEFENDANT'S CLAIM OF TRIAL COUNSEL'S CONFLICT OF INTEREST (Supplement to Counsel's Point II).

In these unique circumstances, PCR counsel's dereliction is inconsequential.

On March 23, 2005, immediately prior to the commencement of defendant's trial, a brief hearing was conducted regarding the purported conflict. This included the representation by trial counsel on the record that he represented the murder victim once on CDS charges, to which Phillips had entered a guilty plea and been sentenced on April 24, 1998. He had no contact with Phillips subsequent to that time. Counsel further stated that when he initially met with defendant in the summer of 2004, he fully disclosed his prior representation of the murder victim and advised defendant that he would raise the issue with the court for its consideration. During the 2004 conversation, counsel also explained to defendant that he might be asked to confirm that he understood a potential conflict existed, that he had been advised of its existence, and that he wished to waive it.

At the hearing, the prosecutor did not ask any questions of defendant. The court, however, administered the oath and asked defendant several questions. The court and defendant engaged in the following colloquy:

You understand that [trial counsel], who now represents you in this case involving the alleged murder of Mr. Phillips actually represented Mr. Phillips at one point in time. You understand that, right? Now, you understand that it is at least arguable that somebody could at some point or another say that for some reason or another . . . [trial counsel] has conflicting interests, that is . . . does he have more loyalty because he once represented the individual who allegedly you murdered, does he hold more loyalty to him or does he hold more loyalty to you. You understand that somebody could arguably look at it that way? Do you understand that?

THE DEFENDANT: Yes.

THE COURT: Okay. Do you feel that way?

THE DEFENDANT: No.

THE COURT: Is there any question in your mind that . . . [trial counsel's] representation of you and his interest and loyalty is to you 100 percent?

THE DEFENDANT: Yes.

THE COURT: And that there is no doubt in your mind and you are fully confident that . . . [trial counsel] has no conflicting interest and his interest is only in providing zealous representation and defense to you?

THE DEFENDANT: Yes.

The judge said he reviewed State v. Pierrevil, 341 N.J. Super. 266 (App. Div. 2001) and State ex rel. S.G., 175 N.J. 132 (2003) in preparation for the hearing. The court distinguished those cases because, among other factors, the representation of victim and aggressor was virtually simultaneous. He contrasted those cases with this case, as trial counsel's representation of the victim ended forty-five days after the date of his sentencing on April 24, 1998, and the incident for which defendant was being tried occurred more than three years later. The judge reiterated defendant's sworn statement that he did not perceive there to be any conflict, and that he had full confidence in the allegiance of his trial counsel. Accordingly, he found there was no actual conflict and no appearance of conflict. The court also found that defendant had waived any conflict that might exist "knowingly, intelligently, [and] with full understanding." We would be hard pressed to find any error in the denial of PCR relief based on the conflict-of-interest issue in light of defendant's unhesitating, if somewhat awkwardly worded, waiver made on the record before the trial began.

Furthermore, as the State contends in its supplemental brief, defendant's argument that the conflict of interest was prejudicial, because his attorney should have used the victim's character as a defense, lacks merit. Such character evidence, defendant contends, was relevant to support his theory that some unknown third person might have shot the victim.

Evidence regarding the character of a victim may be introduced only where it is pertinent or relevant to the guilt of the accused. See, e.g., N.J.R.E. 404(a)(2). There must be some factual nexus, however, that makes evidence of character of the victim probative. Ibid. To merely state that it is likely the victim had enemies willing to shoot him because of his allegedly criminal character is nothing more than baseless speculation. There must be some actual relevance on the issue of guilt. See, e.g., State ex rel. S.G., 348 N.J. Super. 77, 87 (App. Div. 2002), rev'd on other grounds, 175 N.J. 132 (2003).

In order to establish ineffective assistance of counsel, a defendant must show that counsel's performance was so deficient as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Factually, the record made indisputably clear defendant's waiver of the very conflict-of-interest issue he now wishes to resurrect on PCR. Additionally, only "bald assertions" are made in support of defendant's contention that a different attorney would have presented proofs about the victim's character such as would have raised a reasonable doubt. More is necessary. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We therefore find that the failure of PCR counsel to raise the issue of conflict of interest, despite being requested to do so by defendant, to be harmless. Defendant waived the conflict prior to the start of the trial and he has not asserted any facts which would have made evidence as to the character of the murder victim admissible. Accordingly, PCR counsel's failure to raise the conflict of interest argument did not constitute ineffective assistance of counsel.

 
Affirmed.

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A-5571-07T4

November 4, 2009