STATE OF NEW JERSEY v. NORMAN MIKEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5240-07T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NORMAN MIKEL, a/k/a NORMAN

MIKELL, a/k/a IAN DAVIS,

Defendant-Appellant.

________________________________________________________________

May 31, 2011

Submitted March 29, 2011 - Decided

Before Judges Wefing and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 95-08-0852.

Yvonne Smith Segars, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Norman Mikel was found guilty after a jury trial of felony murder, armed robbery and various other charges in connection with a 1995 armed robbery of an Elizabeth convenience store during which the owner was shot by Mikel's co-defendant, Corey Barksdale. Defendant was convicted on the theory that he was the lookout during the robbery. His defense was that his brother, Allen Mikel, was the true culprit. We affirmed the convictions except for one attempted theft count, which is not relevant here. State v. Mikel, No. A-4117-96 (May 13, 1999), certif. denied, 162 N.J. 663 (1999).

On April 7, 2000, defendant filed a petition for post-conviction relief (PCR) alleging ineffective assistance of both trial and appellate counsel as well as other issues. PCR counsel filed a brief on November 30, 2005. On June 9, 2006, and August 8, 2006, an evidentiary hearing was held and a written opinion was issued on January 18, 2008, denying defendant's petition.1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

At trial, defendant called his co-defendant, Barksdale, to testify that defendant's brother, not defendant, was the lookout in the armed robbery during which the store owner was killed. Barksdale did not exculpate defendant in his testimony. Barksdale had implicated defendant to the State, and as part of his plea agreement with the State, he agreed to be available to testify truthfully if called as a witness by the State. However, defense counsel, not the State, called Barksdale to testify. After consulting with counsel, in the middle of his testimony and outside of the jury's presence, Barksdale, who had not yet been sentenced pursuant to his plea agreement, chose not to testify further based on his Fifth Amendment right not to incriminate himself. The trial court struck all of Barksdale's testimony and instructed the jury not to consider any of it.

Defendant alleged in his PCR petition that Barksdale now presented "newly discovered evidence" of defendant's innocence. Barksdale testified at the PCR hearing that defendant's brother and not defendant participated in the robbery. Barksdale said he waited five years to make this known because "[n]obody never approached me. . . . I figured I already had my deal, I'll leave well enough alone." He testified that his own attorney pressured him to plead guilty and wrongly implicate defendant. Barksdale's defense attorney testified to the contrary, that Barksdale consistently maintained that defendant was the lookout, and, in fact, planned the fatal armed robbery.

In a written opinion denying defendant's application, the PCR court found that Barksdale lied at the PCR evidentiary hearing, describing him as "hesitant, purposely vague [and] double-talking." The court found Barksdale's testimony was "more than inherently suspect; it was false, unsupported and totally divergent from his previous statements . . ."

Defendant raises the following issues on appeal:

POINT ONE

PROOF THAT COREY BARKSDALE HAD EXCULPATED MR. MIKELL ENTITLED HIM TO A NEW TRIAL. ACCORDINGLY, THE PCR COURT'S DECISION DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE MUST BE REVERSED.

POINT TWO

TRIAL AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT TO OR RAISE THE ISSUES OF (1) THE COURT'S CHARGE ON ACCOMPLICE LIABILITY, WHICH WAS NOT SUFFICIENTLY TAILORED TO THE FACTS OF THE CASE AND (2) PROSECUTORIAL MISCONDUCT DURING SUMMATION. AS SUCH, THE PCR COURT'S DECISION DENYING DEFENDANT'S PETITION MUST BE REVERSED.

(1) Jury Charges on Accomplice Liability

(2) Prosecutorial Misconduct

POINT THREE

THE CLAIMS IN MR. MIKELL'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE V. WEBSTER, 187 N.J. 254 (2006).

We affirm substantially for the reasons stated by the PCR court in its thoughtful and comprehensive opinion. R. 2:11-3(e)(1)(D). We add the following brief comments.

In assessing the credibility of a witness, we defer to the findings of the trial court. Our review of a trial court's fact-finding function is limited. State v. Locurto, 157 N.J.463, 471 (1999). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Id.at 474. If the trial court's findings of fact are supported by "'sufficient credible evidence present in the record'" those findings will be binding, even if we might have reached a different conclusion. Id.at 471 (quoting State v. Johnson, 42 N.J.146, 162 (1964)).

The PCR court discounted Barksdale's testimony for many reasons including his demeanor, the timing of his new revelation and his prior contradictory statements. We defer to this credibility finding. Defendant presented no new credible evidence justifying a new trial. The court recognized that defendant's application should have been brought pursuant to Rule3:20-2 as a "motion for a new trial based on the ground of newly-discovered evidence." The court, however, allowed the application to be brought as part of defendant's PCR petition. The PCR court properly denied this application as the defendant could not meet his burden because the evidence was fabricated and thus did not satisfy the standard for obtaining a new trial set forth in State v. Carter, 85 N.J.300, 314 (1981).

The PCR court also carefully analyzed defendant's concerns with the jury charge to determine whether the charge was defective and counsel ineffective for neither objecting to the charge nor raising the issue on appeal. "Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004); see also State v. Rhett, 127 N.J. 3, 5-7 (1992) (noting the due process and fair trial rights that are safeguarded by proper jury charges); State v. Fair, 45 N.J. 77, 93 (1965). It is well recognized that the trial court must properly instruct the jury by relating abstract legal principles to the contested facts in evidence. State v. Savage, 172 N.J. 374, 389 (2002).

We agree with the PCR court's analysis that the trial court's charge clearly instructed the jury that defendant was only charged as an accomplice and properly molded the charge to fit the facts of the case.

Defendant also raised the issue of prosecutorial misconduct for the first time in his PCR application. In his summation, the prosecutor discussed defendant's claim that his own brother was the true lookout for the crime as "a sign how desperately guilty this man is." We agree with the PCR court that in the context of the facts of this case and arguments of both counsel, this statement did not deprive defendant of a fair trial.

A prosecutor's "primary duty . . . is not to obtain convictions, but to see that justice is done." State v. Frost, 158 N.J. 76, 83 (1999) (citation and internal quotation marks omitted). In summation, prosecutors may "make vigorous and forceful closing arguments to juries" based on the evidence and all reasonable inferences. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Also, they may vigorously rebut specific arguments made by defense counsel. State v. Mahoney, 188 N.J. 359, 376 (2006). If defense counsel does not raise a timely objection to remarks in summation, this "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. . . . [and] deprives the court of an opportunity to take curative action. Frost, supra, 158 N.J. at 84 (citation omitted). However, failure to object will not bar reversal if the offending remarks are so egregious that they deprived defendant of a fair trial. State v. Neal, 361 N.J. Super. 522, 535 (App. Div. 2003). Here, the prosecutor's comments were within the bounds of fair comment.

Finally, defendant argues, as he did in his supplemental pro se PCR application, that he was deprived of a fair trial because the trial court did not give a cross-racial identification charge pursuant to State v. Cromedy, 158 N.J. 112, 132 (1999). The Court held that such instruction should be given when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Id. at 132. In Cromedy, the Supreme Court held that a trial court's failure to give a requested instruction regarding cross-racial identification may constitute reversible error. 158 N.J. at 115. As the PCR court pointed out, Cromedy was decided three years after defendant's trial, and there is no reported authority applying Cromedy retroactively.

Here, the State introduced significant other evidence beyond the identification of two Hispanic eye-witnesses, including defendant's own statement to the police that he participated in the crime. SeeState v. Harris, 357 N.J. Super. 532, 538 (App. Div. 2003) (holding that if there is evidence of guilt that corroborates the identification, a cross-racial identification is unnecessary); see also State v. Romero, 191 N.J. 59, 71-72 (2007) (a Hispanic Caucasian defendant was not entitled to a cross-racial identification charge where identification was the pivotal issue and the non-Hispanic Caucasian victim identified the defendant); State v. Valentine, 345 N.J. Super.490, 497 (App. Div. 2001) (a cross-racial identification charge is not always required for the identification of non-Hispanic defendants by Hispanic witnesses, because the Hispanic culture is composed of different races), certif. denied, 171 N.J.338 (2002); cf.State v. Walton, 368 N.J. Super.298, 305-06 (App. Div. 2004) (such instruction may be warranted as between Hispanics and African-Americans depending on the circumstances). Defendant claimed in his PCR petition that he and the witnesses are of different races and different ethnicities. Assuming that to be the case, and even if we were to apply Cromedy retroactively, defendant is not entitled to a new trial given the corroborating evidence presented by the State.

Affirmed.

1 We do not know the reasons for the almost eight-year delay between the filing of the PCR application and the court's decision.