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June 24, 1992

PATRICK ARVONIO, Superintendent, East Jersey State Prison, ROBERT J. DEL TUFO, Attorney General of the State of New Jersey, OFFICE OF THE PASSAIC COUNTY PROSECUTOR and PATERSON POLICE DEPARTMENT, Respondents.

The opinion of the court was delivered by: DICKINSON R. DEBEVOISE

 DEBEVOISE, District Judge.

 This is an action by petitioner, Lawrence Simmons pursuant to 28 U.S.C. § 2254 to obtain a writ of habeas corpus.


 Petitioner was charged in a Passaic County Indictment, along with codefendants David Wilson *fn1" and Donald Phillips, *fn2" for the May 27, 1977 murder of Dr. David Doktor (N.J.S.A. 2A:113-1); murder while armed (N.J.S.A. 2A:151-5); and conspiracy to commit robbery (N.J.S.A. 2A:98-1). *fn3" Petitioner and codefendant Phillips were charged in a separate indictment with the robbery (N.J.S.A. 2A:141-1) of a second individual a short time later on May 27, 1977. Petitioner was tried separately and convicted on all charges after an 11 day jury trial in October and November 1977.

 On December 21, 1977 petitioner was sentenced to life in prison on the murder conviction; a consecutive term of nine to ten years on the murder while armed conviction; a concurrent two to three year term on the conspiracy to rob conviction; and a consecutive sentence of 12 to 15 years on the conviction for the robbery of a second individual.

 Shortly after petitioner was sentenced he began the long and often frustrating process of obtaining direct appellate review of his conviction. The details attendant to Petitioner's odyssey are thoroughly discussed in my earlier opinion, wherein I granted Petitioner a conditional writ of habeas corpus. See Simmons v. Beyer, 689 F.Supp. 432 (D.N.J. 1988) Thus, I will not rehash those details in this opinion. Pursuant to the conditional writ, the state was directed to either grant the Petitioner an effective appeal to the appellate courts or grant the petitioner a new trial.

 On August 9, 1988 the Passaic County Prosecutor's Office filed, on behalf of Petitioner, an application for leave to appeal nunc pro tunc and for a remand to the trial court to reconstruct the record. *fn4" The motion was granted; reconstruction of the record was completed and the certified record was filed with the Appellate Division on October 4, 1988. On November 14, 1988 I denied Petitioner's motion challenging the sufficiency of the reconstructed record. See Simmons v. Beyer, Civ. No. 86-4274 (D.N.J. 14 November 1988). *fn5"

 On January 8, 1989 petitioner moved for a limited remand to the trial court in order to seek a new trial on the ground of newly discovered evidence based upon affidavits of David Wilson who recanted his testimony from the 1977 trial. A supplemental certification was submitted on January 25, 1989. On February 9, 1989 the Appellate Division granted that motion and ordered that such remand proceedings be completed within 60 days. On March 9, 1989, a motion for a new trial was filed on petitioner's behalf with the trial court. Evidentiary hearings were held before Judge Marchese on April 3 and 4, 1989. In an April 6, 1989 oral decision, the judge denied petitioner's motion for a new trial. An order to that effect was entered on April 10, 1989. Thereafter, petitioner filed an amended notice of appeal to include the denial of that motion in his appeal.

 Roughly thirteen years after the conclusion of his trial, Petitioner was finally accorded appellate review of his conviction. His conviction was affirmed by the Appellate Division on or about July 13, 1990. See State v. Lawrence L. Simmons, A-6277-87T1 (App.Div.1990). Petitioner then filed a petition for certification which was denied by the New Jersey Supreme Court on or about October 22, 1990. see Order; annexed as Exhibit Da 498 to Petitioner's Appendix.

 Subsequent to the exhaustion of his state remedies, Petitioner moved to reopen his petition for habeas corpus before the federal district court. Petitioner's motion was granted on November 14, 1990.


 The following sequence of events, developed at trial, is meticulously set forth in the opinion of the New Jersey Appellate Division. See State v. Simmons, op. at 18-32.

 Early in the morning on May 27, 1977 (approximately 1:30 a.m.), Dr. David Doktor, an elderly physician, received an emergency call requesting his attendance at Barnert Memorial Hospital. The call was placed to his home on 14th Avenue in Paterson. Upon leaving his home, Dr. Doktor was brutally beaten and robbed. He died from the blows sustained in the attack. On that same morning, George Marshall was also beaten and mugged by two individuals.

 During the early morning hours of May 27, 1977 (about 1:00 a.m.), David Wilson *fn6" returned to the home of Donald Phillips at 738 East 23rd Street, Paterson, where Wilson had been living for quite some time. Wilson testified that the petitioner and codefendant Phillips entered the apartment together. He further testified that they "were smoking refer and drinking beer." The beer was contained in quart bottles. Wilson had known Phillips at this time for approximately four months, but had not met the petitioner prior to that night.

 The three men discussed stealing a car. Petitioner allegedly stated that "he wanted to do a stickup with the car." Phillips then asked Wilson, who was allegedly adept at stealing cars, if he had any keys to General Motors cars. Allegedly, petitioner produced a General Motors automobile key and, tossing it to Wilson, asked if it could be used to steal a car. Wilson replied that it might. Petitioner then told the others that he knew of a car they could steal on 14th Avenue near 26th Street in Paterson.

 Wilson accompanied Phillips downstairs to the first floor hall closet where Phillips obtained a yard-long length of auto exhaust pipe with grooves in it. When Wilson asked Phillips what the pipe was for, Phillips said it was to break the window of the car if the key didn't work. Wilson, who would be acting as the "lookout," would then "hot-wire" the car.

 On the night of the murder petitioner was wearing black pants, a short sleeved light blue polo shirt and a plaid shirt-type jacket. He also had on a sleeveless yellow undershirt with brown trim, a pair of black socks and suede shoes. Phillips also had on black pants, and wore a long sleeved black shirt, white athletic socks with black and yellow stripes and a pair of white Pro-Ked sneakers with blue and red trim. Wilson was dressed in a blue and white striped sweater, a blue belt, peach pants, a brown stocking cap and tan checked hat with a small front brim. He also wore a brown bodysuit and black, heeled shoes.

 At 5'2" Wilson was the shortest of the three, but appeared about 5'5" in his high heeled shoes. Phillips was six feet tall. Petitioner was about 5'6" tall and wore his hair in braids on the night he was arrested.

 At about 1:30 a.m., the three individuals allegedly left the house, and walked down East 23rd street to 14th Avenue where they headed easterly towards 26th street and the car petitioner suggested they could steal. As they walked down 14th Avenue, Phillips carried the pipe and a quart bottle of beer. While Phillips stopped and waited for petitioner, who had lagged behind, Wilson continued walking, and upon reaching 26th street turned and saw the petitioner, now about a block behind, place the beer bottle in the middle of 14th Avenue about 10 to 15 feet from the sidewalk.

 Wilson crossed the 26th Street intersection and, while intending to wait for the other two individuals to catch up with him, was frightened by the headlights of a car driven by Mrs. Garcia. Wilson hid in the bushes about 100 feet from the corner and watched Mrs. Garcia park on 14th Avenue near the corner of 27th Street and exit her vehicle. After parking her car, Mrs. Garcia started toward her house and then went back to the car where she had left her house key. After retrieving her key, she went into her house. Emerging from the shrubs, Wilson stood and watched Phillips and the petitioner cross 26th Street. Wilson then started walking up 14th Avenue. Eventually, Phillips and the petitioner caught up with Wilson at the intersection of 27th Street. As the two men approached him, walking side-by-side, Wilson saw that Phillips was still carrying the pipe.

 Mrs. Garcia lived in the house on the corner of 26th Street and 14th Avenue. As she stood on her front porch, which faced 26th Street, and opened her front door, she saw a black man near the corner walking on 26th Street in front of her house as if he were "looking for something." She got a glimpse of the side of this man's face and observed that he had puffy cheeks and well, like braids or something on the head." She went inside and later peered out of her kitchen window, which overlooked 14th Avenue, and saw two black men dressed in dark clothing walking on her side of 14th Avenue towards 27th Street. She testified "they were walking, had something in their hand, like a stick or something, between both men." After she lost sight of the individuals, Garcia went outside to the edge of her porch, fearful that someone was looking into her car, looked up 14th Avenue, saw movement in the distance and then went inside.

 As the petitioner, Phillips and Wilson gathered at the intersection, about to make a right turn onto 27th Street, petitioner allegedly pointed to an old car, parked on 14th Avenue near the intersection and said, "there goes a car we can steal." The three men walked down 14th Avenue towards the car which was parked in front of a new vehicle. Wilson stopped near a driveway, about 20 feet from the newer car, as petitioner and Phillips stood behind the intended vehicle.

 Meanwhile, during those early morning hours of May 27, 1977, Mrs. Purtell, a registered nurse who was affiliated with Barnert Hospital in Paterson, was on duty in the hospital's morgue. At 1:30 a.m., she telephoned Dr. David Doktor, to advise him of a medical emergency at the hospital. Dr. Doktor dressed and approximately 15 minutes later, left his residence on 14th Avenue.

 From his lookout position, Wilson saw the elderly physician descend the front stairs of his house about 20 feet away. Phillips and the petitioner were hiding behind a car a few feet or so away from the doctor. Upon noticing Dr. Doktor, Phillips allegedly tapped the petitioner and said, "let's get him."

 According to Wilson, as the doctor walked between the two parked cars, the petitioner "came up from behind and punched him in the face," knocking him to the ground. Phillips then grabbed the "old man" by the shoulders, dragged him into the roadway and started punching him in his face. According to Wilson, the petitioner "was hitting him in his body and then the lower part of his body. The man then went down to the ground. Then he tried to get up, as he was getting up he was moving himself in front of the car. Mr. Simmons [petitioner] then came over and punched him in the stomach." Phillips then removed a piece of plastic from his back pocket, wrapped it around his hands, and retrieved the pipe from its hidden location near the rear tire of the old car that the three were attempting to steal. Phillips repeatedly struck the doctor in the head with the pipe.

 Phillips and Wilson fled across the street. The petitioner, however, ran up a driveway located on the same side of 14th Avenue. As the two men ran across the street, Phillips was unwinding the plastic from his hands. While he was fleeing, the plastic snagged on a fence across the street from the murder scene where the police found it.

 The petitioner eventually caught up with Phillips and Wilson on the corner of 14th Avenue and 27th Street. Wilson first saw the petitioner as he rounded the corner of 28th street and noticed that he was not wearing the plaid jacket he had on when the three men had left Phillips' residence. The three men then raced down the opposite side of 14th Avenue towards 23rd Street and the School 13 playground. Phillips, who still held the pipe as they ran, threw the pipe away as they fled down 14th Avenue. It was later recovered by the police.

 Meanwhile, Mrs. Garcia, who had earlier driven to her 26th Street home, sat in her kitchen. A little later, after initially looking out her kitchen window and observing the two men walking up 14th Avenue, she again looked out her kitchen window, this time to see three men running down the opposite side of 14th Avenue towards 25th Street.

 At 2:00 a.m., another witness left work and started her 8 to 10 minute trip home to Elmwood Park. As she drove east on 14th Avenue she observed, about one-third of the way into the block between 25th and 26th Streets, an empty beer bottle in her lane of traffic. In order to avoid hitting the bottle, she had to swerve and drive into the opposite lane. About a block and one-half further away, her headlights picked up what appeared to be to be a bundle of rags, garbage, or "something laying in the road." As she drove closer, she saw that it was not rags, but a body lying on the south side of 14th Avenue.

 Upon reaching the corner of 14th Avenue and 23rd Street, the petitioner, Wilson and Phillips entered the School 13 playground. When the petitioner announced that the doctor's wallet contained no money, Phillips told him to "go hide the wallet." While Phillips and Wilson waited and watched, the petitioner ran to Phillips' house and returned "a few minutes later."

 The trio then spotted George Marshall coming through the playground. Phillips said, "let's get a quarter off him;" the petitioner replied, "let's go." They walked up 23rd street, past Marshall, and then turned around. The petitioner and Phillips followed Marshall across the street to the corner of 23rd Street and 14th Avenue, while Wilson stood on the school yard side of 23rd Street. Phillips approached Marshall and asked for a quarter. When Marshall replied that he did not have one, Phillips told him "you're a liar" and punched him in the eye. Marshall grabbed Phillips and threw him against a nearby fence. At this point, the petitioner came up behind Marshall and ripped his pocket off, taking Marshall's wallet. As his attackers walked away down 23rd Street, Marshall called out, referring to the wallet, "I don't know where you're going because there is nothing in it." The petitioner then brought the wallet back to Marshall and beat him up once again. Afterwards, Marshall discovered that two dollars and some change were taken from him. Marshall later described the petitioner as having a "sort of muscular build and looked like he was a little shorter than the other gentleman and he had like a white slipover tee shirt or some kind of shirt, slipover shirt on, short sleeved." In addition, Marshall stated that the petitioner had a "short hairdo, like it was braided."

 At the approximate time of the robbery, another Paterson resident, Mrs. Bagby, who lived on 23rd Street was awake in bed waiting for her daughter to come home. She testified that she was disturbed by "someone that was hollering, trying to get some help." She said what she heard sounded like a man yelling and it sounded like he was being mugged or attacked or something." She then went outside onto her front porch to see if her daughter who she knew had just arrived in a car across the street, was all right. Still hearing the man yelling, she returned inside to telephone the police and report a mugging.

 Meanwhile, her daughter was seated in a parked car on the right hand side of 23rd Street near 14th Avenue where she observed two black youths assault a white man while a third black youth watched. She stated, "I saw a Caucasian man coming down the street and three black youths passing him and then turning around, and two of the black youths grabbing him and held him and the other began to strike him and they were pulling at his pocket, at his back pocket." She began to flash the car lights on and off and honk the horn hoping that she would scare the attackers away. She described the young black men as ranging from 5'5" to 5'9' in height. She stated that one of the individuals had on a white short sleeved pullover shirt and corn rows in his hair. The second man wore dark clothing. She described the third person, the nonparticipant, as about 5'5" tall and wearing a wide or white striped sweater.

 After Mrs. Bagby called the police she again went outside, down her front stairs and halfway into the street, calling out that she had notified the police. She repeatedly yelled out to determine if the victim was all right. A tall black man then came around the corner and told her that "the mf'er is alright." She described this individual as seeming "to be tall, about my complexion. His hair was sort or close-cropped, I don't know if it was braided or it was cut close, by that I meant it wasn't brushed in an afro." She watched for approximately two or three minutes as the three black men walked past the lighted intersection on 14th Avenue and 23rd Street and continued down 23rd Street toward School 13 and 15th Avenue.

 Police patrol cars were quickly dispatched to the area. As a result of the incident, Wilson was apprehended near 15th Avenue and 22nd Street. Phillips, who was perspiring heavily and smelled of alcohol, was apprehended near Madison Avenue and Ellison Place. The petitioner was apprehended near the intersection of Ellison Place and Madison Avenue. Officer Micks noted that when he stopped the petitioner, he had a very rapid heartbeat and appeared to be nervous. The petitioner gave the officer his name and address and said that he was on his way home from visiting his sister, Wanda Addison. The petitioner said that he was uncertain of her address because she had recently moved.

 The petitioner was brought into police headquarters at approximately 3:00 a.m. on May 27, 1977. He was escorted into a room and told to read aloud the Miranda rights listed on a plaque on the wall. The petitioner did so and then stated that he understood those rights. About one hour later Detective Rafferty and Hennison asked the petitioner: (i) if he knew Wilson and Phillips and (ii) what he was doing in the area where he was apprehended. The petitioner responded that he did not know either Wilson or Phillips and further replied that he had been visiting his sister before he was apprehended. He also told Detective Rafferty that he did not wish to say anything more. Later, the detectives returned with Phillips and Wilson, who both identified the petitioner in his presence. Again petitioner insisted that he did not know either of them. At about 10:00 a.m., the petitioner was advised that Wilson had given police a written statement implicating the petitioner in the murder. The petitioner then stated, "I figured he would squeal, that rat bastard. I will kick his ass when I get him over at the jail." Later in the afternoon, as the petitioner, Phillips and Wilson were being transported for booking in an elevator, the petitioner told Wilson, according to Detective Rafferty's testimony, that he would "beat Wilson up when he gets him over the county jail." The petitioner testified and denied making any statements, except the one made in the elevator.

 Mrs. Garcia later gave a description of the three young men she observed to Detective Torres, stating "that they were all black, young, between 16, 17 years old or maybe 18 years old wearing dark clothing. Also one was wearing a dark colored handkerchief of some kind around his head." At the police station, Garcia was also shown some photographs and indicated that one of them looked like one of the perpetrators, but that she was not sure. The next day as she read The Paterson News, she saw the three men depicted in the photograph as looking like one of the men she saw the night before. She saved the newspaper and turned it over to members of the Prosecutor's Office later that summer, pointing out the petitioner's photograph as being "similar" to one of the men she saw the night of the murder. In addition, she was shown an eight photograph array and identified the petitioner's photograph.

 Mrs. Bagby also saw a copy of The Paterson News the following day, and recognized two of the men depicted in the newspaper photograph as similar to the attackers of Marshall. Bagby pointed out petitioner's photograph as being similar to or resembling the assailant who stated that "the mf'er is all right." Bagby also described Phillips' photograph as resembling the taller and slim one." While she was also shown the eight photograph array, she was not able to pick out any photographs of the assailants. Her daughter, also ...

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