STATE OF NEW JERSEY v. BRANDON STILL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2940-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRANDON STILL,

Defendant-Appellant.

_______________________________

December 21, 2012

Submitted April 16, 2012 - Decided

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-03-0562.

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z. H. Abbasi, Designated Counsel, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Found guilty by a jury in 2003 of felony murder and other offenses, defendant Brandon Still appeals the trial court's August 30, 2010 order dismissing his petition seeking post-conviction relief ("PCR"). We affirm.

The State's proofs at trial established that defendant participated in the fatal shooting of Charles Martin on March 7, 2001 in Pleasantville. Martin had an argument that night with defendant's friend, Brian Cross, in a young woman's residence. Later that evening, defendant and Cross, both armed with guns, returned to the residence and encountered Martin and his friend Anthony Taliaferro. Cross exchanged words with Taliaferro, who was holding a marijuana-filled cigar. A fight ensued, and Martin was shot three times. Defendant and Cross fled the premises. Martin died from the gunshot wounds. Defendant, who had been identified as one of the perpetrators, surrendered to the police three months later.

A superseding indictment charged defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count six).

The State presented eighteen witnesses at trial. They included several of the other persons who had been in the residence when Martin was shot.

Defendant testified on his own behalf. He acknowledged being present in the room where Martin was shot, but denied that either he or Cross had been armed. According to defendant, the argument between Cross and Taliaferro had become so intense that it caused Martin to pull out a handgun. Defendant claimed that he tried to prevent Martin from shooting by wrapping his arms around him. During that alleged struggle, the gun fired, and Martin fell. Defendant then fled, not hearing any more shots. He did not know how Martin ended up with three bullets in him. Defendant also presented nine additional witnesses.

Following deliberations, the jury convicted defendant of second-degree reckless manslaughter, as a lesser-included offense of murder on count one; first-degree felony murder (count two); first-degree robbery (count three); second-degree possession of a weapon for an unlawful purpose (count four); and third-degree unlawful possession of a weapon (count five). Defendant was acquitted of conspiracy to commit robbery (count six).

At sentencing in May 2003, the trial judge merged the convictions for reckless manslaughter (count one), possession of a firearm for an unlawful purpose (count four), and robbery (count three), into the conviction for felony murder (count two). The judge imposed a forty-five-year prison term, with a thirty-year period of parole ineligibility, on the felony murder count. The judge also sentenced defendant to five years on count five (unlawful possession of a handgun), to run concurrent with count two.

On direct appeal, we affirmed defendant's convictions. State v. Still, No. A-5456-02 (App. Div. Apr. 3, 2006). Certification was thereafter denied. State v. Still 189 N.J. 648 (2007).

Defendant then filed a PCR petition with the trial court, and was assigned counsel. Defendant claimed that the first-degree robbery charge had not been properly charged by indictment. He further alleged that he had been deprived of the effective assistance of counsel, and that the sentencing mergers were improper.

Oral argument on the petition ensued before the Hon. Charles Middlesworth, Jr., J.S.C.1 The judge deemed an evidentiary hearing unnecessary.

On August 30, 2010, Judge Middlesworth issued a letter opinion and corresponding order, denying defendant's PCR petition. In his extensive opinion, Judge Middlesworth concluded that defendant's arguments were all without merit.

In the present appeal, defendant's counsel raises the following points:

POINT I

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF

POINT II

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT ESTABLISHED THAT IT WAS IMPROPER FOR THE TRIAL COURT TO PROCEED WITH THE FIRST DEGREE ROBBERY OFFENSE EVEN THOUGH THE GRAND JURY NEVER TRUE-BILLED THE CHARGE

POINT III

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT SUCCESSFULLY DEMONSTRATED THAT HIS CONVICTION FOR RECKLESS MANSLAUGHTER SHOULD NOT HAVE MERGED WITH HIS FELONY MURDER CONVICTION

POINT IV

DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HER INITIAL VERIFIED PETITION AND IN ANY PRO-SE SUPPLEMENTAL BRIEF

Additionally, defendant himself submits the following points in a pro se supplemental brief:

POINT I

DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY, WAS OBTAINED IN VIOLATION OF THE CONSTITUTION OF THE STATE OF NEW JERSEY, ARTICLE I, PARAGRAPH 8 AND IN VIOLATION OF DEFENDANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW. AS A RESULT, THE CONVICTION SHOULD BE REVERSED.

POINT II

IN VIOLATION OF DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW, DEFENDANT WAS DENIED A FAIR TRIAL PURSUANT TO THE SUPREME COURT'S REASONABLE DOUBT DOCTRINE. [PARTIALLY RAISED BELOW]

POINT III

DEFENDANT WAS DENIED THE RIGHT TO FAIR TRIAL AND THE RIGHT TO DUE PROCESS OF LAW WHERE DEFENDANT WAS CONVICTED FOR FIRST DEGREE ROBBERY UNDER TWO SEPARATE THEORIES. AS A RESULT, DEFENDANT'S CONVICTIONS FOR FIRST DEGREE ROBBERY SHOULD BE REVERSED. [PARTIALLY RAISED BELOW]

Having fully considered these arguments, we affirm the dismissal of defendant's PCR petition, substantially for the sound reasons expressed in Judge Middlesworth's letter opinion. We add only a few comments.

Defendant's claim that he was never properly charged with first-degree robbery is plainly mistaken. The superseding indictment issued on March 20, 2002, which is documented in the record, clearly includes the robbery count. There is nothing improper with the issuance of a superseding indictment that adds to or amplifies the charges that had been in an original indictment. See, e.g., State v. Cagno, 211 N.J. 488, 502-03 (2012) (referring to the State's reliance upon a superseding indictment); State v. J.A.C., 210 N.J. 281, 292 (2012) (noting that the State had obtained a superseding indictment); State v. Ochmanski, 216 N.J. Super. 240, 245-48 (Law Div. 1987) (holding that an originally omitted crime can be charged in a superseding indictment, despite the intervening running of the statute of limitations, if the charge is based on the same conduct from which the original offenses were charged).

Furthermore, defendant's claim that he never was given proper notice of the robbery count is disingenuous, as evidenced by a letter that defendant himself wrote three months before trial referring to the robbery charge. Consequently, defendant's argument that he was prejudiced by an improper charge lacks merit.

Defendant's various assertions that he was deprived of the effective assistance of counsel, in violation of the Sixth Amendment of the United States Constitution, likewise are unavailing. In reviewing such claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). "[C]omplaints merely of matters of trial strategy will not serve to ground a constitutional claim of inadequacy[.]" State v. Fritz, 105 N.J. 42, 54 (1987) (internal quotation marks omitted). "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).

"'[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.'" Castagna, supra, 187 N.J. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).

Judge Middlesworth correctly applied these principles to the claims of ineffectiveness asserted here. We need not repeat his analysis, except to say that our own review of the record does not reveal any indication whatsoever that defendant's former counsel failed to render adequate assistance or made significant decisions without the exercise of "reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Judge Middlesworth also correctly recognized that the sentencing mergers were appropriate and, in fact, were not prejudicial to defendant. The mergers also eliminate defendant's concern that he was found guilty of two homicide offenses with only one homicide victim. Cf. State v. Davis, 68 N.J. 69, 77 (1975) (noting "the prohibition against multiple punishment for a single wrongdoing").

The balance of defendant's arguments, including those presented in his supplemental brief, lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 The judge who had presided over the trial had since retired.