STATE OF NEW JERSEY v. MICHAEL RICKS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6366-05T56366-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL RICKS,

Defendant-Appellant.

___________________________________________________

 

Submitted April 18, 2007 - Decided April 30, 2007

Before Judges Stern and Lyons.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 96-04-1271.

Michael Ricks, appellant pro se.

Stuart Rabner, Attorney General, attorney

for respondent (Mary E. McAnally, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Defendant appeals from the denial of his second petition for post-conviction relief, embodied in an order of July 13, 2006, denying the application "to [d]isqualify [the trial judge] and for a [n]ew [t]rial."

Defendant and three co-defendants were convicted of felony murder and other offenses, and defendant received sentences aggregating thirty years with thirty years before parole eligibility. Sentence was imposed on January 23, 1997. On his direct appeal, defendant raised the following issues:

POINT I THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS

GRAVELY PREJUDICED WHEN INV. MASUCCI TESTIFIED

THAT IN HIS OPINION, VICTOR PARKER HAD

PROVIDED TRUTHFUL INFORMATION ABOUT THE CRIME,

AND WHEN THE PROSECUTOR CLAIMED IN HER SUMMATION

THAT PARKER'S STORY HAD BEEN CORROBORATED BY

THEIR INVESTIGATION. (Partially Raised Below)

POINT II THE DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES

AGAINST HIM WAS VIOLATED WHEN THE TRIAL COURT

PRECLUDED COUNSEL FROM ASKING ABOUT THE CIRCUM-

STANCES OF VICTOR PARKER'S ARREST BECAUSE

THAT TESTIMONY COULD HAVE PROVIDED CRUCIAL

INFORMATION ABOUT PARKER'S MOTIVE TO FALSELY

INCRIMINATE DEFENDANT.

POINT III THE DEFENDANT'S FIFTH AMENDMENT RIGHTS WERE

VIOLATED BY THE PROSECUTOR'S SUGGESTION IN

SUMMATION THAT BY FAILING TO TESTIFY OR

"OFFER A DEFENSE," HE WAS ATTEMPTING TO "HIDE

FROM THE COLLECTIVE EVIDENCE AGAINST HIM."

(Not Raised Below)

In a pro se supplementary brief, defendant further argued:

POINT I THE EGREGIOUS CONDUCT OF THE PROSECUTOR

DEPRIVED DEFENDANT DUE PROCESS OF THE LAW

AND A FAIR TRIAL BY INTENTIONALLY WITH-

HOLDING STATEMENTS OF VICTOR PARKER MADE

PURSUANT TO THE TERMS OR CONDITIONS OF THE

COOPERATION AGREEMENT IN VIOLATION OF R.

3:13-3(c)(7), NEW JERSEY COURT RULES (Not

Raised Below)

POINT II THE PROSECUTOR RE-DOUBLED HER EFFORTS TO

DEPRIVE DEFENDANT OF A FAIR TRIAL BY ALSO

WITHHOLDING STATEMENTS MADE BY CODEFENDANT

KEITH HENDERSON THAT WERE OBTAINED DURING

PLEA DISCUSSIONS PRIOR TO TRIAL. (Not Raised

Below)

POINT III THE PROSECUTOR EFFECTIVELY INTERFERED WITH,

AND DEPRIVED, DEFENDANT THE RIGHT TO, THE

ASSISTANCE OF COUNSEL. (Not Raised Below)

We rejected the contentions and affirmed the convictions. Certification was denied.

On May 23, 2003, the Law Division denied defendant's first petition for post-conviction relief, and we affirmed the denial. Certification was again denied. The present application, which is not included in defendant's appendix, was filed on July 20, 2005.

Co-defendant Victor Parker testified against defendant who insisted that he was not involved in the crimes. Parker was the only witness to identify defendant as a perpetrator. Defendant now contends that the judge improperly charged the jury that he could be convicted for felony murder "on the theory of accomplice liability and it was plain error for the trial court to instruct the jury in that manner," that defendant "cannot be both guilty of felony murder and reckless manslaughter and first degree conspiracy to commit robbery and second degree robbery on the same set of facts arising from one criminal episode," that the "plea bargain" that Parker accepted was illegal, that defendant was deprived of a fair opportunity to cross examine Parker, and that the trial judge should have disqualified himself from considering the petition because he "had not only sat on the trial of the issues" but "had decided [defendant's guilt] in a prior proceeding."

In denying the application, the trial judge indicated it was time barred by the ten-day period embodied in R. 3:20-2. It was also barred by the five year limitation embodied in R. 3:22-12 as well as the procedural limitations of R. 3:22-4 and -5. In fact, all of the issues now advanced except for the recusal application addressed in the lower court's July 13, 2006 letter opinion were in one way or the other previously raised.

We add only that, by virtue of the nature of felony murder, defendant could be found guilty of both felony murder and reckless manslaughter, but it is significant that defendant's conviction for conspiracy (count one), robbery (count two), reckless manslaughter (as a lesser included offense to murder on count four), and possession of a handgun for unlawful purpose (count ten) were merged into the other convictions. As we do not have the judgment before us, we cannot be sure as to what conviction was merged into which, but all convictions which defendant complains are duplicative were merged.

The issues concerning Parker's guilty plea were also developed and decided in our decision on the direct appeal, when defendant unsuccessfully argued that his right to confront the witnesses against him was "violated when the trial court precluded counsel from asking about the circumstances of Victor Parker's arrest because that testimony could have provided crucial information about Parker's motive to falsely incriminate defendant." Thus, in addition to the multiple applicable time bars, all of the present contentions have been previously raised except for the issue of disqualification, which the trial judge addressed in denying the present application.

The order of July 13, 2006 is affirmed substantially for the reasons embodied in Judge Donald J. Volkert, Jr.'s letter opinion of July 13, 2006, as supplemented herein.

 

The petition was labeled as a "Motion to Disqualify and a Motion for New Trial," but treated by the court and Public Defender as a second petition for post-conviction relief. Although the judge's letter opinion of July 13, 2006, is addressed to an attorney as well as the prosecutor, Da 7, and copies to the Regional Deputy Public Defender, Da 12, by separate letter also dated July 13, 2006, the trial judge denied the pro se application and stated that the matter had been inappropriately forwarded to the Public Defender who "properly declined to assign counsel." See R. 3:22-6(b).

Neither the indictment, judgment nor motion or petition for post-conviction relief are in the appendices before us, but the material information is taken from prior opinions, and the dates are not contested.

The judge inadvertently stated it was filed "approximately four years and eight months after a finding of guilty at trial." There is no dispute that it was filed more than eight years after the conviction.

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A-6366-05T5

April 30, 2007