STATE OF NEW JERSEY v. WARREN MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6015-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WARREN MILLER,

Defendant-Appellant.

________________________________________________________________

November 7, 2011

 

Submitted October 4, 2011 - Decided

 

Before Judges Carchman and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 99-03-0419, 99-02-0234 and 99-12-2282.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

 

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

PER CURIAM

Following a jury trial, defendant Warren Miller was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense of the previously charged offense of first-degree murder, N.J.S.A. 2C:11-3a(1)(2), as well as third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Following appropriate mergers, the trial judge sentenced defendant on April 14, 2000, to an aggregate term of life imprisonment with a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, period of parole ineligibility of sixty-three years, nine months. Defendant appealed; we affirmed but remanded for reconsideration of the period of parole ineligibility. Thereafter, defendant's period of parole ineligibility was reduced to twenty-five years, six months. The Supreme Court denied certification. State v. Miller, 174 N.J. 42 (2002).

On his direct appeal, defendant raised the following issues:

POINT I

 

THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT FAILED TO SEQUESTER THE JURY AFTER NEWSPAPER ARTICLES EMERGED IN THE ATLANTIC CITY PRESS, PARTICULARLY CONCERNING THE DEFENDANT'S PRIOR HOMICIDE CHARGE.

 

POINT II

 

THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT PERMITTED THE STATE TO INTRODUCE INADMISSIBLE HEARSAY OF ITS OWN WITNESS' ALLEGED PRIOR INCONSISTENT STATEMENT.

 

POINT III

 

THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT ALLOWED INTO EVIDENCE AUTOPSY PHOTOGRAPHS WHICH HAD NO PROBATIVE VALUE, AND WAS MERELY MEANT TO INFLAME THE PASSIONS OF THE JURORS.

 

POINT IV

 

DEFENDANT'S CONVICTION FOR TERRORISTIC THREATS SHOULD BE VACATED BECAUSE THE PLEA TO THAT CHARGE LACKED A SUFFICIENT FACTUAL BASIS.

 

POINT V

 

THE DEFENDANT'S PLEA OF GUILTY TO THE TERRORISTIC THREATS AND POSSESSION OF COCAINE INDICTMENTS SHOULD BE VACATED BECAUSE THE DETERMINATION ON WHETHER THE PLEA WAS ENTERED VOLUNTARILY AND KNOWINGLY WAS INSUFFICIENT.

 

POINT VI

 

THE DEFENDANT'S SENTENCE WAS EXCESSIVE IN THAT THE COURT FAILED TO ARTICULATE THE AGGRAVATING AND MITIGATING FACTORS.

 

On September 11, 2002, defendant filed his first petition for post-conviction relief (first PCR). In his first PCR, defendant raised these issues:

POINT ONE

 

PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF BOTH THE UNITED STATES CONSTITUTION AND THE NEW JERSEY STATE CONSTITUTION.

 

 

 

POINT TWO

 

PETITION WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IN VIOLATION OF UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF NEW JERSEY.

 

Defendant's first PCR was denied, and defendant appealed. In the appeal from the first PCR, defendant claimed:

POINT ONE

 

THE LOWER COURT SHOULD HAVE HELD A FULL EVIDENTIARY HEARING ON THE DEFENDANT'S CLAIM OF THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL BECAUSE THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE APPELLATE COUNSEL FAILED TO COMMUNICATE WITH THE DEFENDANT, WHICH RESULTED IN A DEFICIENT APPEAL AND THE LACK OF A PRO SE APPEAL BRIEF.

 

POINT TWO

 

THE DEFENDANT'S POST CONVICTION ATTORNEY DENIED THE DEFENDANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FASHION EFFECTIVE ARGUMENTS, FAILING TO AMEND THE DEFENDANT'S AFFIDAVIT AND BY DISPLAYING LITTLE FAMILIARITY WITH THE DEFENDANT'S POST CONVICTION CLAIMS. (Not Raised Below.)

 

We rejected defendant's arguments and affirmed the dismissal of the first PCR. Defendant's petition for certification was also rejected by the Supreme Court. State v. Miller, 188 N.J. 219 (2006).

In 2008, defendant filed a second petition for post-conviction relief (second PCR). In the second PCR, both defendant and his counsel raised a number of issues. Defendant argued pro se:

GROUND I -PETITIONER TRIAL COUNSELS FAILURE TO OBJECT TO STATES WITNESSES THERESA NEWTON, KEITH BURKE, AND RENE ELAM APPEARING AT TRIAL IN PRISON GARB AND SHACKLES, TESTIFYING BEFORE THE JURY WHILE DRESSED IN PRISON GARB AND SHACKLES DEPRIVED PETITIONER OF HIS RIGHT TO A FAIR TRIAL, AS WELL AS THE U.S.C.A. CONST. AND SIX AMEN. N.J.S.A. CONST. ART. 1, PAR. 10 (SIC).

 

GROUND II -THE PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW TO REQUEST THE COURT TO INSTRUCT THE JURY THAT THEY COULD NOT DRAW NO INFERENCES OF GUILT OF PETITIONER DUE TO THE TESTIMONY OF THERESA NEWTON, KEITH BURKE, AND RENEE ELAM AT TRIAL WHILE IN PRISON GARB AND SHACKLES WAS PLAIN ERROR: AND DEPRIVED THE PETITIONER OF HIS RIGHT TO DUE PROCESS OF LAW A RIGHT TO A FAIR TRIAL AS WELL AS THE U.S.C.A. CONST. ART. 1, PAR. 10 (SIC).

 

GROUND III -THE PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW SINCE TRIAL COUNSEL FAILED TO ASK FOR A JURY INSTRUCTION THAT THE PETITIONER SHOULD NOT SUFFER ANY PREJUDICE BASED UPON THE STATES WITNESSES FAILURE TO TESTIFY IN ACCORD WITH THEIR PRIOR STATEMENTS GIVEN TO LAW ENFORCEMENT AUTHORITIES (SIC).

 

GROUND IV -THE PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLANT COUNSEL AND PCR COUNSEL FOR THEIR FAILURE TO RAISE THE MERITORIOUS ISSUES OF THE STATES WITNESSES TESTIFYING IN PRISON GARB AND WEARING SHACKLES THEREFOR DENYING PETITIONER OR RELIEF ON DIRECT APPEAL AND PCR (SIC).

 

GROUND V -THE CUMULATIVE EFFECT OF THE GROUNDS BEING RAISED HEREIN AND ALSO THE ISSUES RAISED PREVIOUSLY IN PETITIONERS DIRECT APPEAL WARRANT VACATION OF HIS CONVICTION AND SENTENCE, AND GRANT OF A NEW TRIAL (SIC).

 

In counsel's brief, defendant argued:

 

POINT I -THE PURPOSE OF A PETITION FOR POST CONVICTION RELIEF.

 

POINT II -COUNSEL WAS INEFFECTIVE - STANDARDS OF INEFFECTIVE ASSISTANCE AND PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING.

 

POINT III -PETITIONER HAD A RIGHT TO HAVE THE WITNESSES WHO TESTIFIED IN HIS MATTER TESTIFY WITHOUT SHACKLES AND JAIL CLOTHING.

 

POINT IV -PRIOR COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE AND ANY PRIOR PROCEEDING.

(A) TRIAL COUNSEL

(B) APPELLATE COUNSEL

(C) PRIOR PCR COUNSEL

 

POINT V -ALL POINTS RAISED BY PETITIONER IN ANY AND ALL PRIOR SUBMISSIONS TO THE COURT ARE HERETOFORE INCORPORATED BY REFERENCE INTO THIS SUPPLEMENTAL BRIEF.

 

POINT VI -THE FIVE YEAR TIME BAR SHOULD BE RELAXED DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND/OR THE INTERESTS OF JUSTICE.

 

In a supplemental letter brief, defendant argued:

 

POINT I -NO JURY CHARGE WAS GIVEN REGARDING THE WITNESS' APPEARANCE AT TRIAL. TRIAL COUNSEL'S FAILURE TO REQUEST SUCH A CHARGE, APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE AND PRIOR PCR COUNSEL'S FAILURE TO PREVIOUSLY RAISE THIS ISSUE ALL CONSTITUTE THE INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT II -DEFENDANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT BECAUSE HIS SENTENCE VIOLATES THE DICTATES OF STATE V. NATALE1 AND BLAKELY V. WASHINGTON.2 U.S. CONST., AMEND VI, XIV; N.J. CONST. (1947) ART I, PARS. 8, 9, 10, 11.

 

In an additional letter brief, defendant argued:

 

POINT I -PETITIONER'S SENTENCE IS INVALID PURSUANT TO APPRENDI V. NEW JERSEY3 AND BLAKELY V. WASHINGTON.

 

POINT II -PETITIONER'S SENTENCE IS EXCESSIVE; HAD ALL PRIOR COUNSEL EFFECTIVELY PRESENTED ALL SENTENCING ISSUES, THE SENTENCE WOULD NOT HAVE EXCEEDED WHAT WAS FORMALLY (SIC) KNOWN AS THE PRESUMPTIVE SENTENCE.

 

In February 2009, Hon. Albert J. Garofolo, P.J.Cr., denied defendant's second PCR. Defendant appeals, and we affirm.

These are the relevant facts. On April 21, 1998, Theresa Newton, a friend of defendant, was assaulted in her home. The assault occurred as a result of a drug-related dispute. After the assault, Alvin Jones visited Newton and offered to sell her some Percocets for her pain. Jones gave Newton two Percocets for $2 each, but Newton did not pay. Instead, she asked Jones to come back later for the money; Jones agreed and left.

Shortly thereafter, defendant arrived at Newton's home. When he saw that Newton had been assaulted, defendant became angry and upset. While defendant was there, Jones returned, but defendant told Jones "to come back later, it's not a good time, come back." Jones and defendant then argued at which time defendant stabbed Jones in the chest. Jones ran away and later died from his wounds. Keith Burke, the brother of Newton's boyfriend, was present at Newton's home throughout this entire incident.

After the fight, defendant asked Newton, the owner of the knife, to hide the knife for him, which she did. The next day, two men came to Newton's home, asked where the knife was, and told her to "get rid of it." Newton told them "you get rid of it, I'm not," but they left the knife there. Newton then took the knife to the house of her friend, Renee Elam, and hid the knife in Elam's bedroom closet; Elam was not home at the time. Newton went back to Elam's home a week later to retrieve the knife, but it was not there. Apparently, Elam had found the knife in the closet while she was cleaning and threw it in a dumpster.

Newton, Burke, and at least one other person, Kathy Keyes, each identified defendant's picture, displayed in a photographic array, as the person who stabbed Jones. While another witness, Carolyn Williams, could not identify defendant in the photo array, she witnessed the altercation and identified defendant as the person who stabbed Jones.

Newton, Burke and Elam testified as witnesses for the State. Each were incarcerated at the time, and each testified in jail garb. According to defendant, each were also wearing leg shackles. No objection was made to their testimony or the prison garb.

In his opening statement, the prosecutor represented that these witnesses were defendant's "friends":

I suggest to you that if anyone tries to tell you that these witnesses are bad people and you shouldn't believe them because they're bad people, well, these people were his friends, his associates. These are the people that he knew. These are the people that were with him so that they know that this happened. He selected them, the State didn't, he chose them. These were the people he was around when he committed this act.

Defense counsel did not object to this characterization. In his opening statement, defense counsel argued that "you'll see that other people had as much or more motive to do this act that the [p]rosecutor has [ascribed] to my client."

While defendant raises a number of discrete arguments in his second PCR, the nidus of his claim is to challenge the prison garb worn by the witnesses and the characterization of those witnesses by the State.

In denying the second PCR, Judge Garofolo first noted that while the time bar of Rule 3:22-12 would apply, he would consider the application on the merits. He concluded that the record did not support the contention that the witnesses were shackled, and even if they were shackled and in prison garb, the failure to object was a matter of trial strategy. He then rejected the sentencing issues noting that they had been addressed in the direct appeal.

On appeal, defendant now raises the following issues:

POINT I -THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL'S FAILURE TO OBJECT TO STATE'S WITNESSES KEITH BURKE, THERESA NEWTON, AND JEAN RENEE ELAM TESTIFYING IN COURT IN LEG SHACKLES AND WEARING PRISON GARB, AND THE TRIAL COURT'S FAILURE TO TAKE ANY AMELIORATIVE ACTION, VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL.

 

POINT II -THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR RESENTENCING BECAUSE THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED MANSLAUGHTER ON COUNT ONE WAS UNLAWFUL.

 

POINT III -THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

POINT IV -DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

 

(A)

APPELLATE COUNSEL AND FIRST PCR COUNSEL WERE INEFFECTIVE.

 

The State counters and argues that the second PCR is procedurally barred by Rule 3:22-12; the various decisions rendered by us and the Supreme Court as to witnesses testifying in prison garb are prospective and do not apply here; the sentence is not illegal; and there is no basis to complain about the conduct of prior appellate and PCR counsel.

We first address the issue of the time bar.

Unlike the more expansive provisions contained in Rule 3:22-4(a), applying to an initial PCR, Rule 3:22-4(b) is more restrictive. It provides that a second PCR must be dismissed unless:

(1) it is timely under R. 3:22-12(a)(2); and

 

(2) it alleges on its face either:

 

(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or

 

(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or

 

(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.

 

[(Emphasis added).]

 

Rule 3:22-12(a)(2) states:

Second or Subsequent Petition for Post-Conviction Relief. Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of:

 

(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or

 

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

 

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.

"These time limitations shall not be relaxed, except as provided herein." R. 3:22-12(c).

Here, defendant's second PCR is not timely under Rule 3:22-12(a)(2). Regarding factor (C), defendant's first PCR was denied January 26, 2005, three years before he filed this second PCR in 2008. Regarding factor (B), the factual predicate for the relief sought was evident at defendant's trial in March 2000 when the State's witnesses appeared in jail garb and shackles, or at the latest on the date of the judgment of conviction,4 April 14, 2000.

Regarding factor (A), although the Court did not recognize the right to include State's witnesses from testifying in prison garb until 2009, as we discuss, this right is not entitled to retroactivity on collateral review.

In 2003, the Court held that "[g]oing forward . . . defense witnesses [may] no longer appear at trial in prison garb because that practice advances no essential state interest." State v. Artwell, 177 N.J. 526, 530 (2003). The Court further held that "[b]ecause the appearance of a defense witness in restraints presents a risk of unfair prejudice to a defendant, the trial court may subject a witness to physical restraint only when it has reason to believe it is necessary to maintain the security of the courtroom" after "hold[ing] a hearing, however informal, and stat[ing] on the record out of the jury's presence its reasons for shackling the witness . . . ." Id. at 537 (internal citations, quotation marks and editing marks omitted).

In 2009, the Court addressed the question of "whether the principles espoused in Artwell apply to prosecution, as well as defense, witnesses." State v. Kuchera, 198 N.J. 482, 486 (2009). The Court held that Artwell's reasoning with regard to the physical restraint of witnesses extended to witnesses for the State. Ibid. However, regarding the wearing of prison garb by State witnesses, the Kuchera Court did not extend Artwell's per se ban because "the reasons that animate our decision in Artwell -- that is, that the wearing of prison garb may tend to undermine the credibility of the witness -- may have no true relevance to prosecution witnesses . . . ." Ibid. Instead, the Court held that trial courts should presumptively require civilian clothing for all witnesses, but that this presumption may give way to other concerns in the trial court's discretion. Id. at 500-01.

Recently, in State v. Dock, 205 N.J. 237 (2011), the Court declined to afford Artwell full retroactivity, holding "Artwell's limited prohibition on the use of restraints on defense witnesses -- and, by extension, under Kuchera, supra, on any witnesses in a criminal trial -- is to have prospective effect." Id. at 258-59. In performing its retroactivity analysis, the Dock Court made the following findings. First, considering the "paucity of authority" regarding "whether a defendant's fair trial right is implicated when his or her witnesses are ordered to testify in restraints . . . . Artwell's ruling constitutes a new rule of law . . . ." Id. at 256-57 (internal citations omitted). Second, the "risk of unfair prejudice to a defendant . . . . is not controlling and the concerns it raises must give way when the trial court has reason to believe the restraints are necessary to maintain the security of the courtroom." Therefore, "Artwell's fair-trial reasoning would not always be advanced by its retroactive application." Id. at 257-58 (internal citations, quotation marks and editing marks omitted). Third, "giving Artwell's limited ban on restraints retroactive application will wreak havoc on the administration of justice, calling into question every trial in which a defense witness may have testified in restraints." Id. at 258.

Although the Court has not addressed whether Kuchera is fully retroactive, based on the Court's discussion of Artwell in Dock, we conclude that it is not. Prior to Kuchera, the law was unsettled regarding whether and under what circumstances a State's witness could appear in court shackled or in prison garb. For example, in 2006, we held that a State's witness can never testify in prison garb, citing Artwell as support; the Court in Kuchera explicitly overruled this decision. See State v. Russell, 384 N.J. Super. 586 (App. Div. 2006), overruled by Kuchera, supra, 198 N.J. 482. See also Kuchera, supra, 198 N.J. at 500.

Additionally, the risk of unfair prejudice to a defendant should a State's witness appear in shackles, prison garb or both is less than the risk should a defense witness appear in that same condition. The Kuchera Court already acknowledged as much with regard to prison garb by holding that a trial court can permit State's witnesses to appear in prison garb in its discretion. Kuchera, supra, 198 N.J. at 500-01. The Court similarly noted that the defense could even "seek to exploit" the incarceration of a State witness "as impugning the witness's credibility." Id. at 500. That risk must give way to the trial court's valid exercise of discretion in the same way the risk of a defense witness appearing in shackles had to "give way" to the trial court's need to maintain security in the courtroom. See Dock, supra, 205 N.J. at 257. Given this need for a balancing of interests, applying Kuchera retroactively would not advance its purpose because it would "[call] into question every trial in which a [State] witness may have testified in restraints." See id. at 258. We conclude that Kuchera should not be fully retroactive, and defendant here cannot satisfy factor (A) of Rule 3:22-12(a)(2).

Because defendant cannot meet any of these three factors, under Rule 3:22-4(b)(1), we conclude that his second PCR is untimely and should have been dismissed.

We have carefully reviewed defendant's additional arguments, and we conclude that they are without merit and do not require further comment or analysis. R. 2:11-3(e)(2).

A

ffirmed.

1 State v. Natale, 184 N.J. 458 (2005).

2 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

3 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

4 We have not been provided with a copy of the judgment of conviction; however, the sentencing date was April 14, 2000.