STATE OF NEW JERSEY v. LAMAR MILBOURNE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3313-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAMAR MILBOURNE,

Defendant-Appellant.

__________________________________

December 13, 2012

Submitted September 24, 2012 - Decided

Before Judges Sabatino and Maven.

On appeal from the Superior Court of New

Jersey, Law Division, Cumberland County,

Indictment No. 03-12-0156.

Joseph E. Krakora, Public Defender, attorney

for appellant (William Welaj, of counsel and

on the brief).

Jennifer Webb-McRae, Cumberland County

Prosecutor, attorney for respondent (David

M. Galemba, Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant Lamar Milbourne appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

In 2004, a jury found defendant guilty of committing a series of horrific crimes against two teenagers who were parked in a car in an isolated area in Cumberland County. In our decision on direct appeal affirming the jury's verdict, State v. Milbourne, No. A-3068-04 (App. Div. Dec. 14, 2007), we recounted the brutal facts shown by the evidence at defendant's trial, which we now briefly summarize.

Defendant and his three co-defendants, Milledge, Nichols and Hinson, embarked on the night of September 19, 2002, to "rob some Mexicans." At approximately 9:15 p.m., they encountered two teenagers, C.P. and K.M., parked near a boat ramp at Elmer Lake in Bridgeton. Claiming to be police officers,defendant and the other young men pulled the teenagers from the car. Defendant brought K.M. to the rear of the vehicle where he "pressed [her] up against [the] side of the car," patted her down, and ordered her to spread her legs. When K.M. resisted, defendant punched her repeatedly in her ribs. Defendant took K.M.'s keys and wallet, which contained eighty-five dollars. Next, defendant lifted K.M.'s shirt, removed her bra, unbuttoned her pants, and inserted his finger into her vagina. One of the other men then approached her, pulled her shirt over her head so that she could not see, after which she felt fingers inserted into her vagina at least ten times. Defendant removed K.M.'s shirt and placed his fingers inside her rectum. When she screamed for help, defendant slammed her head into the trunk. She cried, "God, help me," and heard one of the men say, "God couldn't help [you]." The others yelled, "Shut up," and, "We'll kill you.

Next, all four defendants began participating in the sexual assault, punching and threatening to kill K.M. if she did not comply with their demands. They dragged her into a wooded area and continued the sexual assault over a half-hour period. They repeatedly punched C.P., while forcing him to watch the assault on K.M. C.P. was struck with a baseball bat, kicked and stomped. The men shouted words of encouragement to one another during these vicious attacks.

Once the defendants left, the victims managed to drive themselves to a hospital where they were treated for serious injuries. The savage attack was reported to the police. Suspects were quickly developed because C.P. recognized some of the young men from school.

When co-defendant Hinson was arrested later that night, he inculpated defendant. Shortly thereafter, police arrested defendant at his home. In the police vehicle, on the way to headquarters, defendant received his Miranda1 rights. He also signed a Miranda rights card at the police station before questioning. Defendant was initially reluctant to discuss the incident. However, after being informed that Hinson implicated him, defendant admitted to police that he and the other men "were looking to screw up a prom in the projects and then they decided to go out and rob a Mexican." He then disclosed that when the men first arrived at the park, they unsuccessfully attempted to rob another individual. He explained that after driving slightly further, they came upon C.P. and K.M.

At that point, defendant agreed to provide a taped statement and was advised of his Miranda rights again. In his statement defendant gave his version of the incident.2 Defendant maintained that he did not have intercourse with K.M.

After trial, the jury found defendant guilty of first degree aggravated sexual assault of K.M., N.J.S.A. 2C:14-2(a); first degree kidnapping, N.J.S.A. 2C:13-1(b); third degree aggravated assault as a lesser-included offense, N.J.S.A. 2C:12-1(b); third degree criminal restraint, N.J.S.A. 2C:13-2(a); possession of a weapon, a baseball bat, for an unlawful purpose, N.J.S.A. 2C:39-4(d); second degree robbery N.J.S.A. 2C:15-1(a)(1); second degree conspiracy to commit robbery, N.J.S.A. 2C:15-1(a)(1); and disorderly persons simple assault, N.J.S.A. 2C:12-1(a), as a lesser-included offense of third degree aggravated assault. Defendant was acquitted of several other charges.

Following appropriate mergers, the trial court imposed an aggregate sentence of forty years with 85% parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed the conviction on direct appeal, Milbourne, supra, No. A-3068-04, but remanded for resentencing on Counts Ten through Fourteen, and Count Sixteen, in compliance with State v. Natale, 184 N.J. 458 (2005). The Supreme Court denied defendant's petition for certification. State v. Milbourne, 194 N.J. 443 (2008). On remand, the trial court reimposed the same sentence.

Defendant then filed a pro se PCR petition on August 20, 2008. An attorney, appointed to represent him, filed a brief and additional items supporting defendant's petition. The trial court heard oral argument on May 14, 2010, and denied defendant's petition without conducting an evidentiary hearing.

On appeal, defendant argues:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL RERESENTATION AT THE TRIAL LEVEL.

A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearing and Petitions for Post-Conviction Relief.

B. The Defendant Failed to Receive Adequate Legal Representation From Trial Counsel as a Result of Counsel Entering into a Stipulation Regarding DNA Evidence Rather Than Introducing the DNA Test Results to Affirmatively Support a Third Party Guilt Defense.

C. The Defendant Failed to Receive Adequate Legal Representation From Trial Counsel Arising Out of the Miranda Hearing.

D. Since the Defendant Presented a Prima Facie Case of Ineffective Assistance of Counsel, He Was Entitled to an Evidentiary Hearing to Fully Address This Contention.

II. RULE 3:22-4 DID NOT OPERATE AS A PROCEDURAL BAR TO PRECLUDE THE DEFENDANT'S CONTENTIONS FROM BEING ADJUDICATED ON A SUBSTANTIVE BASIS.

In a PCR petition, the defendant bears the burden of proving that his attorney's assistance was a violation of his constitutional rights. State v. Loftin, 191 N.J. 172, 198 (2007). In this case, defendant's claims and arguments do not overcome the presumption that he received the assistance of counsel as mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); Loftin, supra, 191 N.J. at 199. Defendant's allegations did not satisfy both parts of the Strickland test: first, that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment and second, that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 52 (1987).

In denying defendant's PCR petition, Judge Richard J. Geiger carefully considered all of defendant's contentions. Basing his ruling on a comprehensive review of the record of pretrial proceedings and the trial,3 Judge Geiger concluded that defendant had not established a prima facie case of ineffective assistance of counsel to warrant an evidentiary hearing. We agree with that conclusion.

We review the PCR court's determination to decide the matter without holding an evidentiary hearing under the abuse of discretion standard of review. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). An evidentiary hearing may be required where matters beyond the trial record must be examined. See State v. Preciose, 129 N.J. 451, 462 (1992). Here, an evidentiary hearing would not have been beneficial because the record of pretrial proceedings and the trial contradicted defendant's allegations of ineffective assistance of counsel.

As to the merits of defendant's claims, Judge Geiger thoroughly discussed the relevant facts and applicable law. Having reviewed the record on appeal, we are in agreement with his rulings in every respect. We affirm denial of defendant's PCR petition for the reasons stated in the comprehensive and well-reasoned oral decision of Judge Geiger placed on the record on July 30, 2010.

We add only the following brief remarks. Defendant claimed on direct appeal and again in the PCR petition, that the presence of DNA from an unknown source was "powerful evidence supporting the defendant's contention that the victims misidentified defendant." As such, defendant maintains that trial counsel's failure to introduce such evidence represented ineffectiveness assistance of counsel. Although we declined to address this issue on direct appeal, we now conclude that this claim has no merit.

Before trial commenced, the State moved, pursuant to the Rape Shield Law, N.J.S.A. 2C:14-7, for exclusion of the DNA of an unknown person found on K.M. Defense counsel did not object. At trial, the parties stipulated that defendant's DNA was not found on K.M.

As we have previously recognized a criminal defendant possesses the rights to confront witnesses against him and present a defense. U.S. Const. amends. VI and XIV; N.J. Const. art. I, 10. The right to present a defense encompasses the right to argue that someone else committed the crime. State v. Koedatich (Koedatich II), 112 N.J. 225, 297 (1988), cert. denied, 488 U.S 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Evidence that a third party committed the crime charged should generally be admitted where the probative value of the evidence, namely, the evidence's ability to provide a link between the third party and the victim or crime, outweighs countervailing considerations such as confusion of the jury or undue consumption of time. Id. at 297-99; State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960); N.J.R.E. 104(a). Where "the proof offered has a rational tendency to engender a reasonable doubt with respect to the essential feature of the State's case," it should not be withheld from the jury. Sturdivant, supra, 31 N.J. at 179. Admissibility is dependent on a connection between the third party and the crime capable of raising a reasonable doubt with respect to an essential feature of the State's case. Ibid. The connection between the third party and the crime cannot be left to "mere conjecture." Ibid.

Contrary to defendant's argument, the judge never excluded the DNA evidence. An N.J.R.E. 104 hearing was never held. Defendant, through counsel, expressly waived any objection to the State's position that the unknown DNA evidence should not be admitted. Indeed, trial counsel's waiver was made in connection with a stipulation that was agreed upon by the parties.
Counsel's "'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable'" when assessing the reasonableness of counsel's performance. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Moreover, "strategic choices made after a limited investigation are assessed for reasonableness, with great deference given to counsel's professional judgments." Ibid. In our earlier decision, we preliminarily expressed grave doubts, that any additional evidence that an unknown person's DNA was found somewhere on K.M. would have helped him in his defense that the victims misidentified him. Defendant has not presented any additional persuasive argument to overcome our initial skepticism. Milbourne, supra, slip op. at 16 & n. 2.

As to the balance of the arguments made by defendant, including his claim of ineffectiveness relating to the Miranda issues, we have carefully considered them in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

A

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Defendant's taped statement was substantially consistent with the facts described by the merits appeal panel in its appeal. Milbourne, supra, slip op. at 3-10.

3 A different judge presided over the trial.