STATE OF NEW JERSEY v. ERIK MCMILLAN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4719-06T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIK MCMILLAN,
Defendant-Appellant.
___________________________
Submitted December 14, 2009 - Decided January 5, 2010
Before Judges Reisner and Yannotti.
On appeal from the Superior Court of New
Jersey, Law Division, Union County,
Indictment Nos. 98-06-0865 and 98-06-0867.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Steven M. Gilson,
Designated Counsel, on the brief).
Theodore J. Romankow, Union County
Prosecutor, attorney for respondent (Sara B.
Liebman, Assistant Prosecutor, of counsel;
Kimberly Donnelly, on the brief).
Appellant filed pro se supplemental briefs.
PER CURIAM
Defendant Erik McMillan appeals from an April 3, 2007 order
denying his petition for post-conviction relief (PCR). We
affirm.
I
Defendant was convicted by a jury of: first degree
robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon
2C:39-4a; third-degree
for an unlawful purpose, N.J.S.A.
receiving stolen property, N.J.S.A. 2C:20-7; third-degree
2C:12-1b(5); and fourth-degree
aggravated assault, N.J.S.A.
resisting arrest, N.J.S.A. 2C:29-2a. After merger, the court
sentenced defendant, as a persistent offender, to an extended
term of fifty years with twenty-five years of parole
ineligibility on the first-degree robbery count, with lesser
concurrent terms on the other non-merged counts.
On his direct appeal, defendant raised the following
arguments:
POINT I: FUNDAMENTAL FAIRNESS REQUIRES THAT
THE CONVICTIONS BE REVERSED AND THAT THE
STATE BE BARRED FROM RETRYING MCMILLAN A
FOURTH TIME.
A. Fundamental Fairness Required
That The Indictment Be Dismissed
After The Mistrial Of The First
Trial.
B. The Prosecutor Did Not Exercise
Sufficient Diligence To Control
His Witness In Order To Avoid
Testimony In Conflict With The
Court's Order Sanitizing The
Testimony.
A-4719-06T4
2
C. There Were Readily Available
Alternatives To A Mistrial.
POINT II: FUNDAMENTAL FAIRNESS REQUIRED
THAT THE INDICTMENT BE DISMISSED AFTER THE
WITNESS USED THE TERM ROBBER DURING THE
SECOND TRIAL.
POINT III: INTRODUCTION OF THE MUG SHOT IS
REVERSIBLE ERROR.
POINT IV: THE TRIAL COURT'S CHARGE TO THE
JURY ON IDENTIFICATION WAS IMPROPER AND
INCOMPLETE AND IT DEPRIVED THE DEFENDANT OF
A FAIR TRIAL. (Not Raised Below).
POINT V: THE CUMULATIVE EFFECT OF THE
IMPROPER INSTRUCTIONS REGARDING INCONSISTENT
STATEMENTS AND ALIBI WAS TO DEPRIVE MCMILLAN
OF A FAIR TRIAL.
A. The Instruction About Prior
Inconsistent Statements.
B. The Alibi Instruction.
In a pro se supplemental filing, defendant raised the
following additional points:
POINT I: APPELLANT SUBMIT BEFORE THIS COURT
THAT TRIAL COURT COMMITTED A MANIFEST
INJUSTICE ERROR IN ALLOWING AKCASOY'S
TESTIMONY TO BE READ IN APPELLANT'S SECOND
TRIAL AND THIS ABRIDGE THE FUNDAMENTAL
CONSTITUTIONAL RIGHTS TO CROSS EXAMINATION
AND CONFRONTATION PURSUANT TO THE U.S.
CONST., AMEND. 14 DUE PROCESS/EQUAL
PROTECTION RIGHT CLAUSE. (Partial Raised
Below).
POINT II: TRIAL COURT ERRED IN NOT
INFORMING THE JURY TO THEIR READ-BACK
INSTEAD OF TELLING THEM TO RELY ON
OFFICER'S
RECOLLECTION OF THE ARRESTING
TESTIMONY THROUGHOUT THE TRIAL. THAT WAS
A-4719-06T4
3
CONTRARY TO THE JURY REQUEST IN THE FIRST
PLACE AND THIS DENIED APPELLANT THE
FUNDAMENTAL PROTECTION OF A FAIR TRIAL OF
HIS PEERS. SEE I.E. U.S. CONST., AMEND. 14
PROCESS/EQUAL
SUPPORTED WITHIN DUE
PROTECTION CLAUSE. (Not Raised Below).
POINT III: THE PROSECUTOR'S COMMENTS IN HIS
OPENING BEFORE THE JURY WAS A DELIBERATE
MOVE TO PREJUDICE THE JURY AGAINST APPELLANT
BY REFERRING TO APPELLANT AS OPPORTUNIST
AGAINST THE LAWS OF AMERICA. THIS VIOLATED
APPELLANT'S U.S. CONST., AMEND. 14 RIGHTS TO
A FAIR TRIAL. (Partial Raised Below).
POINT IV: APPELLANT SUBMITS THAT
RESPONDENT'S FAILURE TO STATE ON RECORD ITS
REASONS FOR REFUSING TO WAIVE AN EXTENDED
TERM WARRANTS DISMISSAL OF SAME WITH
PREJUDICE. (Not Raised Below).
POINT V: THE CONSEQUENCES OF INCORRECT JURY
INSTRUCTION IS SO PREJUDICIAL TO THE
FUNDAMENTAL BLOOD-LINE TO THE RIGHT TO A
FAIR TRIAL THAT MATERIAL AND RELEVANT
EVIDENCE COULD LEGALLY GO BY WITHOUT PROPER
GUIDANCE TO CONSIDER SAME AND THIS VOID
APPELLANT'S "CLEAN-SLATE" AND PRESUMPTION
OF INNOCENCE BEFORE TRIAL AND SWITCH THE
BURDEN BEYOND A REASONABLE DOUBT OF
APPELLANT'S GUILT. CONTRARY TO THE U.S.
CONST., AMENDS. 6 & 14 AND N.J. CONST., ART.
1, PAR. 1 & 10.
POINT VI: APPELLANT SHOULD HAVE BEEN
ALLOWED TO PRESENT A INTERROGATION EXPERT TO
PROVE POLICE COERCIVE INTERROGATION
TECHNIQUES THAT LEAD TO HIS ALLEGED VERBAL
STATEMENT. THUS A DENIAL OF THE U.S.
CONST., AMEND. 14 AND DUE PROCESS/EQUAL
PROTECTION CLAUSE, TO PERFECT THE FULL
BALANCE OF APPELLANT'S U.S. CONST., AMEND. 6
RIGHT TO DEFEND CRIMINAL ALLEGATIONS IN A
JURY TRIAL. (Not Raised Below).
A-4719-06T4
4
POINT VII: APPELLANT NOT BEING IDENTIFIED
BY THE ALLEGED VICTIM AND ALLOWING
APPELLANT'S MUG SHOT BEFORE THE JURY TAINTED
THE IN-COURT IDENTIFICATION PROCESS AND SAME
WAS NOT HARMLESS TO THE U.S. CONST., AMEND.
14. (Partial Raised Below).
POINT VIII: APPELLANT SUBMIT THAT TRIAL
COURT SHOULD HAVE GIVEN A CROSS RACIAL
IDENTIFICATION CHARGE GIVEN THE FACT
APPELLANT AND THE ALLEGED VICTIM ARE OF
DIFFERENT RACES.
POINT IX: APPELLANT SUBMIT THAT DOUBLE
JEOPARDY IN THE INSTANT CASE PREJUDICE HIM
CONTRARY TO THE U.S. CONST., AMEND. 5 AND
N.J. CONST., ART. 1, PAR. 11.
In a further supplemental filing, he argued:
POINT I: APPELLANT'S SENTENCING PROCEDURE
IMPOSING THE EXTENDED TERM, DEPRIVED HIM OF
HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT
TO HAVE A JURY DETERMINE BEYOND A 1
REASONABLE DOUBT ALL FACTS LEGALLY ESSENTIAL
TO HIS SENTENCE AND TO THE CONTRARY WAS A
DENIAL OF APPELLANT'S DUE PROCESS/EQUAL
PROTECTION CLAUSE PURSUANT TO THE U.S.
CONST., AMENDS. 6 & 14 AND N.J. CONST., ART.
1, PARS. 1, 9 & 20.
We rejected all of those arguments and affirmed on direct
appeal. We published a portion of our supplemental opinion
affirming imposition of the extended term. State v. McMillan,
No. A-1528-01 (App. Div. June 28, 2004); State v. McMillan, No.
A-1528-01 (App. Div. October 13, 2004); State v. McMillan,
373 N.J. Super. 27 (App. Div. 2004), certif. denied,
182 N.J. 628
(2005). Defendant then filed the PCR petition that gave rise to
this appeal.
A-4719-06T4
5
II
We discussed the trial evidence in detail in our June 28,
2004 opinion. In summary, defendant was convicted of committing
an armed robbery at a gas station. One of the station
attendants, Turan Akcasoy, was from Turkey and eventually
returned there. At the original trial, Akcasoy was not able to
identify defendant. Instead the State relied on a security
videotape from the gas station which clearly showed the robber's
face. Following a mis-trial and a second trial that ended in a
hung jury, the State obtained a conviction at a third trial.
Because Akcasoy could not be located at the time of the third
trial, the State was permitted to use the transcript of his
earlier trial testimony.
At oral argument on the PCR petition, PCR counsel first
contended that defendant's trial counsel was ineffective for
failing to locate Akcasoy for the third trial, so that trial
counsel could have cross-examined Akcasoy live before the jury.
According to PCR counsel, his investigator had recently located
Akcasoy in Turkey, and he asserted that if he could find
Akcasoy, trial counsel should have been able to locate him. In
that connection, PCR counsel also contended that the mistrial
declared in the second trial was prejudicial, because Akcasoy
allegedly left the country between the second and third trials.
A-4719-06T4
6
PCR counsel also argued that the State should have
disclosed to the defense that the police officer who arrested a
co-defendant had later been removed from the police force "for
cause." PCR counsel conceded that this officer was "not a . . .
critical eyewitness in this case" but nonetheless contended that
the defense should have known this information prior to trial.
Addressing the PCR court, defendant argued that the State
failed to disclose that a co-defendant had accepted a plea
bargain for a three-year probationary sentence. He contended
that he should have been given the same sentence as the co-
defendant. Defendant further contended that his trial counsel
did not properly advise him as to the State's plea offer to him,
and the possible sentence he might receive if convicted at
trial. Defendant raised additional arguments in pro se written
submissions to the court.
In an oral opinion placed on the record on April 3, 2007,
Judge Malone, who had also been the trial judge, rejected all of
defendant's contentions. He found that defendant had submitted
no legally competent evidence to support his claim that his
trial attorney had not communicated any plea offers or had not
properly advised him about the plea process. The judge also
found that the co-defendant's sentence was irrelevant, since the
A-4719-06T4
7
co-defendant entered into a plea agreement.1 The judge found
nothing in defendant's submissions to suggest how an expert
witness might have assisted the defense in challenging
defendant's statement to the police. He further noted that
there was no need for a cross-racial identification charge,
because the victim did not identify defendant.
The judge rejected the argument that defense counsel should
have located Akcasoy, noting that the use of the earlier trial
transcript was addressed on defendant's direct appeal.
Addressing defendant's additional points, the judge concluded
that they were either without merit or were barred because they
were raised and rejected on direct appeal.
III
On this appeal, defendant once again repeats his arguments
concerning the failure to locate Akcasoy, the alleged failure to
properly advise defendant during plea negotiations, and the
failure to disclose information about the officer who was
dismissed from the police force. He offers these points for our
consideration:
POINT I: THE DENIAL OF DEFENDANT'S PCR
PETITION MUST BE REVERSED, AND THIS MATTER
MUST BE REMANDED FOR EVIDENTIARY HEARING,
1
It appears from materials defendant submitted on this appeal
that the co-defendant was shot while the police were attempting
to apprehend him.
A-4719-06T4
8
BECAUSE A PRIMA FACIE CASE OF INEFFECTIVE
ASSISTANCE OF COUNSEL WAS ESTABLISHED.
A. Trial Counsel Failed To Conduct
An Investigation So As To Secure
The Victim's Availability.
B. Trial Counsel Was Deficient In
Plea Negotiations.
POINT II: THE DENIAL OF DEFENDANT'S PCR
PETITION MUST BE REVERSED AND THIS MATTER
MUST BE REMANDED FOR THE PCR COURT TO STATE
ITS FINDINGS AND CONCLUSIONS OF LAW
REGARDING THE STATE'S EVIDENCE FROM
DEFENDANT. (Not Raised Below).
In a pro se supplemental PCR brief, defendant raises these
additional points:
POINT I: DEFENDANT WAS DENIED HIS STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO EFFECTIVE
ASSISTANCE OF COUNSEL DURING THE PCR
PROCEEDING.
POINT II: THE LOWER COURT ERRED BY DENYING
THE DEFENDANT'S INEFFECTIVENESS-OF-COUNSEL
CLAIMS BEFORE LETTING THE DEFENDANT FULLY
DEVELOP SAID CLAIMS.
POINT III: THE LOWER COURT DEPRIVED
DEFENDANT OF HIS STATE AND FEDERAL
CONSTITUTIONAL RIGHTS TO A FULL AND FAIR
HEARING IN THE COURT OF FIRST INSTANCE.
POINT IV: THE CUMULATIVE IMPACT OF THE
ISSUES RAISED RISE TO THE LEVEL OF HARMFUL
ERROR.
In a further pro se brief, he adds this argument:
POINT I: PCR COUNSEL WAS INEFFECTIVE FOR
NOT RAISING JURY QUESTION ISSUE.
A-4719-06T4
9
We find no merit in defendant's appellate contentions,
including his pro se submissions, and we affirm substantially
for the reasons cogently stated by Judge Malone. We add the
following comments.
As he did before Judge Malone, defendant contends that his
trial counsel should have done more to locate Akcasoy. However,
defendant offered no evidence as to where Akcasoy was at the
time of the third trial, or how trial counsel could have located
him. And, most importantly, he did not explain how producing
Akcasoy in person would have changed the outcome of the trial.
Even at the original trial, Akcasoy was unable to identify
defendant. Rather, defendant was photographed by a security
camera, and the best identification evidence was the jury's view
of the video tape as well as defendant's contemporaneous mug
shot which was properly placed before the jury.
Defendant also repeats his argument that trial counsel
failed to advise him properly during plea bargaining. However,
the record is devoid of any legally competent evidence
supporting that claim. A claim of ineffective assistance of
counsel requires more than "bald assertions." State v.
Cummings,
321 N.J. Super. 154, 170 (App. Div.), certif. denied,
199 (1999). Defendant also fails to explain how
162 N.J.
knowing about disciplinary charges against a police officer, who
A-4719-06T4
10
was a tangential witness, would have changed the outcome of the
trial.
We likewise find no merit in defendant's supplemental
argument that his trial counsel should have introduced the
arresting officer's report into evidence. During deliberations,
the jury sent out a question asking to see the officer's report.
Since the report was not in evidence, the judge instructed the
jury that they could not see it, but they could consider the
officer's testimony. Defendant does not explain how the
officer's report would have been helpful to the defense and,
without more, we will not speculate that it would have made a
difference to the outcome of the trial. See Cummings, supra,
321 N.J. Super. at 170.
Defendant's remaining arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2). Defendant did not establish a prima facie claim of
ineffective assistance of counsel, and the trial court therefore
did not err in deciding the PCR petition without a plenary
hearing. See State v. Preciose,
129 N.J. 451, 462-64 (1992);
Strickland v. Washington,
466 U.S. 668, 687-88,
104 S. Ct. 2052,
2064,
80 L. Ed. 2d 674 (1984); State v. Fritz,
105 N.J. 42, 58
(1987).
Affirmed.
A-4719-06T4
11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
