On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication March 15, 1996.
Before Judges Michels, Baime, and Villanueva. The opinion of the court was delivered by Baime, J.A.D.
The opinion of the court was delivered by: Baime
The opinion of the court was delivered by BAIME, J.A.D.
Defendant appeals the denial of her petition for post-conviction relief. At issue is whether State v. Coyle, 119 N.J. 194, 574 A.2d 951 (1990), which prohibits sequential jury charges in murder cases where there is evidence of passion/provocation, should be applied retroactively to convictions that had become final prior to the date the Supreme Court's decision was rendered. We hold that defendant and others similarly situated who had exhausted all avenues of direct review before Coyle was decided may not obtain post-conviction relief on the ground that sequential jury instructions were given at the trial.
Following a lengthy jury trial, defendant was convicted of murder (N.J.S.A. 2C:11-3a) and was sentenced to a term of thirty years without parole eligibility. We affirmed defendant's conviction and sentence in an unpublished opinion. The Supreme Court denied certification on September 6, 1989. State v. Cupe, 117 N.J. 635, 569 A.2d 1336 (1989). Two years later, defendant filed her first petition for post-conviction relief. The Law Division summarily dismissed the petition on the prosecutor's motion. We reversed on the ground that defendant was denied the effective assistance of counsel in the post-conviction proceedings.
On remand, defendant contended for the first time that she was denied due process because the trial court had given sequential instructions that had the potential to foreclose jury consideration of whether passion/provocation reduced the otherwise purposeful killing from murder to manslaughter. The trial transcript disclosed that after the initial charge on purposeful murder, the court had instructed the jury that it need not consider the lesser-included offense of manslaughter unless it determined that the State had failed to prove beyond a reasonable doubt the offense of murder. Although later in its instructions the trial court had told the jury emphatically to return a verdict of manslaughter if it found beyond a reasonable doubt that the killing was purposeful but harbored a reasonable doubt as to whether defendant acted in the heat of passion under reasonable provocation, defense counsel argued that the charge suffered from the same infirmity as that present in Coyle.
The trial court in the post-conviction proceeding agreed that the instruction given at trial violated Coyle's prohibition against sequential charges. The court noted, however, that Coyle was decided long after the trial and that the instructions given essentially mirrored the model jury charges in effect at the time. Because it had relied upon settled law in formulating the jury instructions, the trial court determined that it would be unfair to permit defendant to rely on the Coyle decision to obtain post-conviction relief.
As we noted, defendant exhausted all avenues of direct review on September 6, 1989. The Supreme Court's decision in Coyle was rendered on June 11, 1990. The question of Coyle's retroactive application is thus squarely presented.
Before addressing that issue, we quickly reject the State's three-pronged argument that defendant's petition was procedurally barred because the claim of Coyle error (1) was raised, litigated and decided in the direct appeal, or (2) could have been raised in prior proceedings, but was not, and (3) in any event, was untimely.
Initially, we are satisfied that the claim of error advanced in defendant's petition for post-conviction relief was neither raised nor decided in prior proceedings. In the direct appeal, we dealt with defendant's contention that the trial court's charge was deficient because it failed to convey to the jury the State's burden of disproving passion/provocation beyond a reasonable doubt. We concluded that the trial court's instructions comported with our Supreme Court's holding in State v. Grunow, 102 N.J. 133, 506 A.2d 708 (1986). See also State v. Powell, 84 N.J. 305, 419 A.2d 406 (1980). We are convinced that the issue raised and decided in defendant's direct appeal and that advanced in her petition for post-conviction relief are not "identical" or "substantially equivalent." State v. Bontempo, 170 N.J. Super. 220, 234, 406 A.2d 203 (Law Div. 1979); see also Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). While we deplore the practice of couching essentially the same argument in different constitutional verbiage in order to evade the prohibition against relitigating issues already decided, see R. 3:22-5; State v. Trantino, 60 N.J. 176, 180, 287 A.2d 177 (1972); State v. Smith 43 N.J. 67, 74, 202 A.2d 669 (1964), cert. denied, 379 U.S. 1005, 85 S. Ct. 945, 13 L. Ed. 2d 226 (1965), we find no abuse of the post-conviction relief procedure in this case.
We are also unpersuaded by the State's contention that defendant's claim is barred by R. 3:22-4. Under that rule, any ground for relief not raised in a prior proceeding may not be advanced by way of a petition for post-conviction relief. Ibid. The general rule is that an issue which could have been raised upon direct appeal, but was not, will not be cognizable in a post-conviction relief proceeding. State v. Cerbo, 78 N.J. 595, 605, 397 A.2d 671 (1979); State v. Levine, 253 N.J. Super. 149, 155, 601 A.2d 249 (App. Div. 1992). However, the rule is subject to several exceptions. If, for example, the alleged error arguably deprived defendant of his fundamental right to a fair trial or possibly infringed a constitutional requirement, the bar does not apply. See State v. Reynolds, 43 N.J. 597, 602, 206 A.2d 750 (1965). Against this backdrop, it is at least arguable that defendant's petition advanced a claim of constitutional dimension. While "cloaking [a] claim in constitutional language will not guarantee relief[,]" a genuinely alleged serious defect in the jury charges will circumvent ...