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State v. Simon

August 11, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
ROBERT R. SIMON, DEFENDANT-APPELLANT AND CROSS-RESPONDENT



The opinion of the court was delivered by: Coleman, J.

Argued September 29, 1998

On appeal from the Superior Court, Law Division, Gloucester County.

On October 8, 1996, defendant, Robert Simon, pled guilty to burglary, theft, unlawful possession of a firearm, possession of a weapon for an unlawful purpose, felony murder, and purposeful and knowing murder by his own conduct of Sergeant Ippolito Gonzalez, a Franklin Township police officer. A jury sentenced defendant to death. This is defendant's direct appeal from his conviction for capital murder and sentence of death. See R. 2:2-1(a)(3). We affirm all of the convictions as well as the sentence of death.

I.

On May 6, 1995, defendant and Charles Staples were members of the Warlocks motorcycle gang. On that day, they burglarized the Environmental Heating building in Franklin Township, located only a few buildings away from the Franklin Township Police Headquarters. As Officer Kenneth Siderio was driving to the police station to work the 11:00 p.m. shift that night, he observed a vehicle parked in front of the Environmental Heating building. Officer Siderio noticed a man dressed in black, later identified as defendant, emerge from the loading dock area and lean into the passenger side window of the parked vehicle as if he was talking to someone. When Officer Siderio passed the parked vehicle, he observed another man, later identified as Staples, sitting in the front seat. Suspecting that a burglary was in progress, Officer Siderio informed Officer Kenneth Crescitelli of his suspicions when he arrived at the police station. Officer Crescitelli left to investigate.

Meanwhile, Sergeant Gonzalez, who was on patrol at the time, pulled up behind the vehicle and turned on his patrol car's flashing lights. Apparently because his patrol vehicle was not equipped with a mobile data terminal, Sergeant Gonzalez called into headquarters at 10:29 p.m. to report the stop and to request a look-up of the vehicle's plate number. He was informed that the car was registered to Charles Staples. When Officer Crescitelli pulled out of the police headquarters' parking lot, he observed Sergeant Gonzalez standing on the driver's side of the vehicle with some papers in his hand talking to the driver. Deciding that nothing looked unusual, he returned to the police station. However, about four minutes after Officer Crescitelli returned to the police station, Sergeant Gonzalez requested backup.

Both Officer William Clay, who had also observed Sergeant Gonzalez at the window of the parked vehicle, and Officer Crescitelli responded to Sergeant Gonzalez's request. Before they could reach the scene, however, each of them heard a gunshot. Other witnesses heard a total of two gunshots about ten seconds apart. Officer Clay, being the first to arrive at the scene, observed Staples drive his vehicle from the scene. When Officer Crescitelli drove up, Officer Clay instructed him to pursue Staples and radioed for other units to join the pursuit. Soon thereafter, Staples lost control of his vehicle and slammed into a guardrail. Defendant exited the vehicle from the passenger side, pointed his gun toward Officer Crescitelli, and ran. Officer Crescitelli yelled at defendant to stop; when defendant failed to heed the warning, Officer Crescitelli fired three shots at him. One of the shots struck defendant in the leg. Defendant flipped over the guardrail and yelled, "I give up. I'm shot." Both defendant and Staples were arrested at that point.

Automobile insurance and registration cards were found in the vehicle with a bullet hole through them. Defendant's Social Security Card and Staples' driver's license were found underneath Sergeant Gonzalez's leg with a bullet hole through them. An expert testified that the hole in the insurance card was made by a gun fired from a distance of 20 to 40 inches. The police found coins, several watches and rings, a Japanese $5 bill, and several rifles in the vehicle, all of which belonged to occupants of the Environmental Heating building.

Sergeant Gonzalez was shot twice. The medical examiner opined that the first shot passed through the right side of his neck, knocking him down, but was not fatal. The second and fatal shot entered his skull behind his right ear; the bullet lodged in his brain. A firearms expert testified that the gun found near the guardrail where defendant was apprehended was the murder weapon.

On August 3, 1995, a Gloucester County Grand Jury indicted defendant and co-defendant Charles Staples on the following charges:

"purposeful and knowing murder, each by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) and (2) (counts one and two); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count three); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count four); third-degree theft, contrary to N.J.S.A. 2C:20-3 (count five); third-degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:58-4 and 39-5b (count six); and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count seven). Defendant was also charged with an additional count of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count nine). Count eight was only against co-defendant Staples; it charged him with second-degree eluding a law enforcement officer, contrary to N.J.S.A. 2C:29-2. Because the State did not know whether defendant or Staples was the trigger-person who killed Sergeant Gonzalez, it decided to charge both of them with purposeful and knowing murder by his own conduct and require the jury to determine which one actually was the killer."

Guilty Pleas

On Monday, October 7, 1996, before the commencement of the guilt-phase trial, defendant announced to the trial court his intention to plead guilty to all of the charges against him, including the murder. Prior to giving his guilty plea, defendant stated:

"About a week ago I think it was I came into the court and said I wanted to fire these guys, my attorneys, for reasons that they were incompetent and deceitful and I would not feel safe going into court with them and then the next day you told me, I think it was the next day, you told me, well, you have to take them, that's it, you're going to use these guys, even after there was a conflict of interest. "Now, to avoid all this conflict of interest and everything, I'm going to enter a plea of guilty right now and maybe it will help out my co-defendant. I don't see a reason for both of us going down the tubes."

The trial court explained to defendant that if he pled guilty, he would be giving up the presumption of innocence, the right to a trial by jury, the right to testify on his own behalf before a jury, the right to present any defenses, the right to confront and call witnesses, and the right to file any additional motions that may assist him in his defense. Defendant stated that he understood that he would be giving up each of those rights, and that he still wanted to plead guilty.

In response to defendant's preliminary statement, defense counsel informed the trial court that they were taken by surprise by defendant's desire to enter a guilty plea because each time they had discussed a potential guilty plea with him, defendant had said he intended to plead not guilty. Defense counsel believed that defendant was pressured into pleading guilty. To support that claim, defense counsel showed the trial court a newspaper article that stated that members of the Warlocks motorcycle gang were urging defendant to change his plea to guilty. Additionally, one of the members of the Warlocks gang, who was present in the courtroom the week before defendant pled guilty, was seen punching his fist into his palm. On that same day, defendant was handed a note containing the phone number of the president of the local Warlocks chapter. When defense counsel asked defendant if he had been threatened, defendant responded that he could not tell them, but that he did not have a choice and it was not his decision. Defendant also advised counsel that he would be able to try to save his own life at the penalty trial once Staples' guilt-phase trial had been concluded.

As a follow-up to defense counsel's assertion of potential threats, the trial court conducted an in-camera meeting with defendant and his counsel and asked defendant if he had been threatened. Defendant responded that no one had threatened him, and that he was entering a guilty plea of his own free will. Later, he told the trial court that part of the reason for his choice to plead guilty was that he did not want to go to trial with his attorneys. Yet when the trial Judge asked if new lawyers would make a difference, defendant responded no and reasserted that he wanted to plead guilty in order to help Staples. When asked whether he saw the man punching his fist into his palm, defendant explained: "I think I may have caught a glimpse of it, yeah. He was like come on, man, do the right thing, like that. Yeah, all right. It wasn't like, you know, hey, man, you better get it right or something." The trial court also asked defendant if he would cooperate with his attorneys at the penalty phase of the trial and whether he wanted to die. Defendant responded that he was not going to commit suicide, but that he did not care if he died.

Based on defendant's statements, the court decided to proceed with the guilty plea proceedings. After defendant was administered the oath, he informed the trial court that he understood the "plea agreement" he had signed and that he was feeling well and not intoxicated. The trial court repeated many of the prior questions that had been asked of defendant during the in-camera meeting regarding why defendant was pleading guilty and whether he understood the consequences of pleading guilty. Defendant repeated his responses from the in-camera meeting.

In an attempt to obtain the factual basis for the proposed guilty pleas, the trial court asked defendant about the events on the night of the murder. Defendant testified that he exited Staples' vehicle to talk to Sergeant Gonzalez. He explained: "When I got out of the car Officer Gonzalez was going for his gun and I just wanted him away from me, your Honor. I went for mine and I shot him." Defendant estimated that he was six feet from Sergeant Gonzalez when he fired the gun. The trial court then questioned defendant concerning his purpose in shooting Sergeant Gonzalez and whether he intended to kill him. Defendant explained: "I intended to cause to get him away from me. . . . I intended to get him away from me, your Honor. I guess if that took killing him, you know." He also testified that, although he did not aim the gun at the victim, shooting Gonzalez in the upper body or head is what it took to get Gonzalez away from him. He said that he intended to shoot Gonzalez, and that he intended the bullet to hit Gonzalez, rather than warn or scare him. He explained that his purpose in shooting Sergeant Gonzalez was to cause him serious bodily harm or to kill him, if that is what it took to get him away from him.

Defendant admitted that after Gonzalez had been shot, he and Staples attempted to flee the scene. They stopped only when their car crashed. After the crash, defendant exited the vehicle, pointed his gun toward Officer Crescitelli, and tried to run before the officer shot him in his leg, causing him to fall down and surrender. Defendant said he obtained the gun from underneath Staples' mattress while Staples was in the bathroom.

To contradict defendant's assertion that Sergeant Gonzalez drew his gun first, the prosecutor informed the court that the physical evidence at the scene and eyewitness accounts, indicated that the officer's gun remained in its holster, and that he had not removed either of the two snaps essential to removing the gun from its holster. The prosecutor also stated that based on ballistic evidence, the shooter was two to three feet away from Sergeant Gonzalez when the fatal shot was fired.

The trial court accepted defendant's guilty plea on October 8, 1996. On the same day, the State dismissed the capital murder charge against Staples. On February 7, 1997, a jury convicted Staples of felony murder.

Six days after the jury returned the felony-murder conviction of Staples, defendant made a motion to withdraw his guilty pleas on February 13, 1997. A hearing on the motion was conducted on February 27, 1997. Although defendant alleged that his guilty pleas should be vacated because he was coerced into pleading guilty, defendant refused to identify any individuals who had threatened him, except to mention that he had spoken to a person who had threatened him over the phone. Defendant also stated that he was required to plead guilty to "take most of the weight" for Staples and to protect himself and his family. Ultimately, the trial court denied defendant's motion to withdraw his guilty pleas, concluding that defendant's testimony at the plea hearing was more credible, and that he testified falsely during the motion hearing.

Penalty Trial

Jury selection for the penalty phase trial was conducted between March 3 and March 24, 1997. The State relied on four aggravating factors: (1) that defendant murdered Sergeant Gonzalez, a public servant, while Gonzalez was in the performance of his official duties, N.J.S.A. 2C:11-3c(4)(h); (2) that Sergeant Gonzalez was murdered while defendant was engaged in flight after committing burglary, N.J.S.A. 2C:11-3c(4)(g); (3) that the murder of Sergeant Gonzalez was committed for the purpose of escaping detection, apprehension, trial, punishment or confinement for another offense or offenses committed by defendant, namely burglary and theft, N.J.S.A. 2C:11-3c(4)(f); and (4) that defendant previously had been convicted of another murder, N.J.S.A. 2C:11-3c(4)(a). The State presented evidence regarding the events of May 6, 1995. The State also established that in 1982, defendant was convicted of second-degree murder for killing a nineteen year-old woman in Pennsylvania for which he was sentenced to ten to twenty years in prison.

The defense, under the "catch-all" mitigating factor, N.J.S.A. 2C:3c(5)(h), proffered 126 mitigating circumstances related to defendant's life. The enormous amount of mitigating evidence included evidence of defendant's tragic childhood, which was replete with physical and verbal abuse from his parents, drug abuse, and petty theft-type offenses such as breaking and entering and writing bad checks. Between the ages of seventeen and twenty-three, defendant lived as an outlaw motorcycle gang member, committing multiple thefts and regularly using drugs. Shortly after his twenty-fourth birthday, defendant was sentenced to five to ten years in prison for offenses ranging from aggravated assault to burglary. While serving those sentences, defendant was convicted in 1982 for the Pennsylvania murder that was used as an aggravating factor in this case. In 1984, defendant killed an inmate and was placed in isolation for six and one-half years. He was acquitted of the 1984 inmate killing because it was committed in self-defense. The defense also presented expert testimony that defendant suffered from an antisocial personality disorder, and that by the time he reached adulthood he had no moral compass.

On April 2, 1997, the jury unanimously found all four aggravating factors proffered by the State. The jury also found thirty-seven of the mitigating factors unanimously and forty-eight of the mitigating factors non-unanimously. Despite the large number of mitigating factors found in defendant's favor, the jury unanimously found that the four aggravating factors together outweighed the mitigating factors beyond a reasonable doubt. Defendant was accordingly sentenced to death.

II.

Grand Jury Indictment

Defendant contends that the capital murder indictment was invalid and should have been dismissed for two reasons: (1) there was no prima facie showing that defendant killed Sergeant Gonzalez by his own conduct; and (2) the prosecutor violated defendant's due process rights by suggesting, in response to a grand juror's question, that a capital murder charge may be based on accomplice liability.

The trial court denied defendant's motion to dismiss the indictment, ruling that the grand jury was not required to consider the "own conduct" requirement. The trial court also found that the prosecutor's response to the grand juror's question was not misleading, and that there was evidence before the grand jury that reasonably could have lead to an ultimate finding that either defendant or co-defendant killed the victim by his own conduct, even though the evidence pointed "more strongly to one than the other."

Sufficiency of "Own Conduct" Evidence

Defendant argues that it was improper for the State to charge both him and Staples with capital murder when it was clear that only one of them killed Sergeant Gonzalez. Because the State was not clear on which one of them was the killer, defendant contends that there was insufficient evidence to prove that he committed Sergeant Gonzalez's murder by his own conduct. Defendant also points out that guideline two of the Prosecutor's Guideline for Designation of Homicide Cases for Capital Prosecutions, which was adopted by the New Jersey County Prosecutors Association and the Attorney General in 1989, provides that a prosecutor "must be satisfied that there is proof beyond a reasonable doubt that the defendant, by his own conduct, actively and directly participated in causing the death of the victim."

Rule 3:7-3b requires that an indictment for murder specify whether the act is murder as defined by N.J.S.A. 2C:11-3a(1), (2) or (3), and whether or not it is alleged that the defendant committed the murder by his or her own conduct, paid another to commit the murder, or is the leader of a drug-trafficking network who secured the murder in furtherance of a conspiracy.

A grand jury may return an indictment if there is a prima facie showing that the accused has committed a crime. State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 27 (1984). For the crime of purposeful or knowing murder, the prosecutor was not required to state in the indictment whether the murder was committed by defendant's own conduct. The "own conduct" requirement is not an element of purposeful or knowing murder; it is "merely a triggering device for the death penalty phase of the trial." State v. Gerald, 113 N.J. 40, 99 (1988) (quoting State v. Moore, 207 N.J. Super. 561, 576 (Law Div. 1985)).

The "own conduct" requirement is analogous to the filing of a notice of aggravating factors that a prosecutor must file before subjecting a defendant to a capital trial. We have stated:

"Like the indictment, the notice of aggravating factors is the turn-key to a capital prosecution. Implicit in both is the notion that the allegations derive from some verifiable source. The need to ensure that such a source exists compels some preliminary review to satisfy the interest of the public and the defendant that such charges not proceed to trial without a factual mooring." [State v. McCrary, 97 N.J. 132, 143 (1984).]

Under McCrary, the prosecutor must show that there was sufficient evidence to allege the aggravating factors. Id. at 140-41. That means that when a prosecutor indicts a person for capital murder, he or she must, among other requirements, (1) make a prima facie showing to the grand jury that the person committed the murder, and (2) present some evidence that one of the triggering devices applies to the facts of the case.

Defendant's reference to the Prosecutor's Guideline for Designation of Homicide Cases for Capital Prosecution does not weigh into our decision. The standard stating that a prosecutor "must be satisfied that there is proof beyond a reasonable doubt that the defendant, by his own conduct, actively and directly participated in causing the death of the victim" is only a guideline establishing uniformity for prosecutors to follow when determining whether to seek the death penalty. It holds no legal significance.

Our examination of the record convinces us that there was a sufficient amount of evidence before the grand jury against both defendants which, if believed, reasonably could lead to a finding that either defendant or Staples murdered Sergeant Gonzalez by his own conduct. Because Simon is the defendant in this appeal, we will focus only on the evidence against him. The grand jury was presented with evidence that Simon was the passenger and that the shot was fired from the passenger side of the vehicle. In addition, Simon exited the passenger side of the vehicle with the murder weapon in his hand after the crash. That evidence satisfies the State's burden of making a prima facie showing that defendant murdered Sergeant Gonzalez by his own conduct. Hence, the indictment was proper.

We also reject defendant's contention that the State could not charge him and Staples with capital murder because it was clear that only one of them murdered Sergeant Gonzalez. In State v. Clausell, 121 N.J. 298 (1990), two defendants were indicted for capital murder. The Court noted that the petit jury found both Clausell and his co-defendant guilty of purposeful and knowing murder, and found that Clausell, but not his co-defendant, had committed the homicidal act by his own conduct. Id. at 312. This Court neither questioned nor criticized the fact that two defendants, in a single-shooter murder, were charged with capital murder for killing the same victim, and that the petit jury was left to decide, if it could, who was the actual shooter. Similarly, in State v. Brown, Brown and a co-defendant were both indicted for capital murder, although a jury did not have to decide who actually killed the victim by his own conduct because Brown's co-defendant pled guilty. 138 N.J. 481 (1994), overruled on other grounds by State v. Cooper, 151 N.J. 326 (1997).

In addition, the Legislature specifically discussed situations in which there were more than one participant in a murder when drafting the death penalty statute. The Legislature noted that an accomplice to a murder would not be subjected to the death penalty, but that when the line between principal and accomplice was blurred, it is "up to the jury" to "decide who pulled the trigger." Public Hearing Before Senate Judiciary Committee on Senate Bill No. 112 (Death Penalty) at 18 (Feb. 26, 1982). We conclude that as long as there is sufficient evidence for the State to make a prima facie showing that each defendant committed the murder by his or her own conduct, the State is permitted to charge more than one defendant with capital murder, even where it is clear that only one person actually killed the victim by his own conduct.

Prosecutor's Instructions to the Grand Jury

Defendant also contends that the prosecutor misled the grand jury into thinking that a person may be liable for capital murder despite not being the shooter. The issue is posed in the context of the following colloquy between a grand juror and the prosecutor:

JUROR: "With the first two charges, they're both being charged with murder." MR. LYNCH: "Yes, sir." JUROR: "I want to make sure that I got it right. That there's felony murder; okay. The way that it's worded is they worked together and they caused somebody's death. But, murder, is it required -- the fact that they were there and didn't pull the trigger, does that constitute murder under the law?" MR. LYNCH: "There is accomplice liability under the law which I will review with you. By the wording of these two charges, accomplice liability is not being alleged, direct participation is being alleged against the two individuals. Accomplice liability could be considered by the panel. It could be made a separate charge against both or either defendant that he acted as an accomplice, but the allegation that's set forth in the charges that you're being asked to consider that I've reviewed with you is direct participation and causation rather than accomplice liability. Is that responsive to your question, sir? Does that help you?" JUROR: "I think so; yeah."

Defendant contends that the prosecutor's answer was misleading because it did not inform the grand jury that accomplice liability does not apply to capital murder. Defendant argues that if the grand jury had understood that only the shooter could be convicted of capital murder, they might not have been willing to indict both him and Staples, but rather would have required more evidence regarding who was the shooter.

The foregoing colloquy does not reveal that the prosecutor's responses improperly infringed upon the grand jury's decision-making function. The prosecutor's response made it clear that an indictment was sought charging both Simon and Staples with direct participation in Sergeant Gonzalez's murder. The prosecutor explained that accomplice liability was not alleged in the two murder counts, but that accomplice liability could be considered by the panel in other connections. The grand juror who asked the question said the answer was clear. Therefore, we reject defendant's speculation that the grand jury was misled.

III.

Voluntariness of Guilty Plea to Capital Murder

Defendant contends that his right to due process of law was violated when the trial Judge accepted his guilty plea. He claims that his guilty plea was not made voluntarily and that he was motivated by threats against his family and himself. He argues that despite his insistence that his plea was voluntary at the plea hearing, the totality of the information before the court at the time of the plea required a finding of coercion. Defendant points to the following evidence that should have persuaded the court to find that he had been coerced:

"1. Simon announced his decision to plead guilty immediately after the intervention of the Warlocks' officers; "2. Simon believed he might well defeat the capital aspect of the case and could offer no good reason for purposefully risking his life by pleading to capital murder; "3. Simon received no legal benefit in exchange for the plea; and "4. Counsel believed Simon was entering the plea under duress and urged the court not to accept the plea."

The importance of the constitutional rights being waived when a defendant enters a guilty plea necessitates that the knowing and voluntary nature of the plea be demonstrated in the record so that it may be reviewed on appeal. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969). "In New Jersey, it is well-settled that a plea must be entered into voluntarily and intelligently. Indeed, we have codified that requirement in Rule 3:9-2." State v. Crawley, 149 N.J. 310, 318 (1997) (internal citations omitted). See also State v. Barboza, 115 N.J. 415, 421 n.1 (1989) (stating "[a] guilty plea violates due process and is, thus, constitutionally defective if it is not voluntary and knowing"). Rule 3:9-2 provides, in part:

"The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such a plea without first addressing the defendant personally and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as the result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea." [Emphasis added.]

When a guilty plea is challenged as the product of coercion, the relevant question is not whether defendant was "sensitive to external consideration--many defendants are--but instead whether the decision to plead was voluntary, i.e., a product of free will." United States v. Pellerito, 878 F.2d 1535, 1541 (1st Cir. 1989), cert. denied, 502 U.S. 862, 112 S. Ct. 184, 116 L. Ed. 2d 145 (1991). The withdrawal of a guilty plea is not an "absolute right"; it is a matter within the broad discretion of the trial court. United States v. Spence, 836 F.2d 236, 238 (6th Cir. 1987); United States v. Ramos, 810 F.2d 308, 311 (1st Cir. 1987). Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a "formidable barrier" which defendant must overcome before he will be allowed to withdraw his plea. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977). That is so because "[s]olemn declarations in open court carry a strong presumption of verity." Ibid.; State v. DiFrisco, 137 N.J. 434, 452 (1994) (DiFrisco II), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). When the trial court determines that a guilty plea has been voluntarily entered, "the measure of what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the [trial] court." State v. Smullen, 118 N.J. 408, 417 (1990); see also R. 3:21-1. "A guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). Thus, the trial court's denial of defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous. Smullen, supra, 118 N.J. at 416.

We find no such abuse of discretion in this case. The trial court considered all of the evidence presented to support defendant's motion to withdraw his guilty plea. After reviewing the evidence and hearing the arguments, the court stated that the essential issue it had to decide was whether defendant lied to the court during the two-day plea process, or whether he had lied at the withdrawal hearing. The court concluded that based on observations of defendant's demeanor over "many hours" during the plea process, defendant's motion testimony on a "vague, nonspecific asserted threat" made to members of his family was "totally incredible and unpersuasive." The trial court flatly rejected defendant's testimony, and concluded that "he lied on the witness stand this morning." The trial court concluded that defendant's withdrawal application was nothing more than an "attempted manipulation" of the criminal Justice system.

The trial court's finding that defendant was lying on the witness stand during the hearing on his withdrawal motion was supported by the statements defendant made during his plea hearing. At that hearing, both in camera and in open court, defendant stated under oath numerous times, in numerous ways, that he had not been coerced or threatened at any time, in any manner, by anyone. Defendant told the court that he wanted to plead guilty in order to help Staples. That was a plausible explanation since there was strong evidence that defendant was the trigger person. When asked about each of the statements made by defendant, and scenarios involving defendant in which a court could find coercion, defendant effectively explained each situation to the satisfaction of the trial court.

As an appellate court, we are required to give great "'deference to those findings of the trial [court] [that] are substantially influenced by [its] opportunity to hear and see the witnesses and to have the `feel' of the case, which a reviewing court cannot enjoy.'" State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Indeed, one of the reasons the trial court denied defendant's motion was based on its comparative observations of defendant's demeanor during the plea hearing and the plea withdrawal hearing. The trial court gave defendant ample opportunity in camera and in open court to reveal that he was pleading guilty involuntarily. However, defendant did everything within his power to successfully convince the trial court that he was pleading guilty of his own free will. Significantly, defendant provided no convincing evidence at the plea withdrawal hearing that he or his family had in fact been threatened.

Thus, we conclude that the trial Judge's findings of facts were not clearly erroneous. As a result, defendant's plea was made voluntarily and the trial court properly denied the motion to vacate the plea.

IV.

Simon's Plea Establishing Capital Murder

Defendant contends that even if this Court were to find that his plea was voluntary, his plea failed to establish that he was the gunman or that he committed the murder purposefully or knowingly. Specifically, defendant argues that his statements during the plea hearing only admitted to recklessness, which is the mens rea for aggravated manslaughter, not purposeful or knowing murder. In addition, defendant asserts that his statements implicating himself as the gunman were not supported by the evidence from the scene. Therefore, he urges the Court to vacate his conviction and death sentence.

When taking the plea, the trial court asked defendant to explain the factual basis for his plea of guilty to capital murder. Defendant responded that when he got out of the car, Sergeant Gonzalez was going for his gun and defendant wanted Sergeant Gonzalez away from him, so defendant pulled his gun and shot the victim. He stated that he shot Sergeant Gonzalez to get Sergeant Gonzalez away from him, because he did not want to go back to prison. When asked if he intended to kill the officer, defendant responded "I intended to get him away from me, your Honor. I guess if that took killing him, you know." Defendant said he shot Sergeant Gonzalez two times while standing within six feet of him, and he thought the victim was struck in the head or neck and in the chest. Defendant was asked "are you guilty of killing Officer Gonzalez knowing that what you were doing was practically certain to result in his death or serious bodily injury?" Defendant responded: "I knew I was going to cause [a lot] of injury to him, yes, sir. Like I said, I didn't care about his death. I didn't think of that. So, yeah, okay, guilty, yes, sir."

The trial court was satisfied that defendant's guilty plea, when considered in conjunction with other information made available to the court pursuant to Rule 3:9-2, established capital murder. In accepting the plea, the trial court stated that defendant did, without justification, "knowingly and purposely fire two shots into the body [of Sergeant Gonzalez] at close range . . . and that he did so . . . by his own conduct." The trial court further stated that defendant "pulled the trigger and fired the shot and that he did so under circumstances in which it was practically certain and that he knew that it was practically certain that doing that would result in serious bodily injury, if not death, and that the circumstances under which he did this, at close range, two shots, not one, to the upper body . . . area, manifested a reckless indifference as to whether or not death would result."

Mens Rea

Defendant contends that his factual statements to the trial court regarding his mental state at the time of the shooting only satisfied a recklessness state of mind and not purposeful or knowing murder. The State argues that because the New Jersey Constitution was amended in 1992, three years before the present murder, to permit capital punishment of a defendant who purposely or knowingly caused serious bodily injury resulting in death as opposed to an intent to cause death, the law did not at the time of the present murder require defendant to admit in his guilty plea that he intended to kill Sergeant Gonzalez. See Cooper, supra, 151 N.J. at 361; State v. Harris, 141 N.J. 525, 548 (1995). The State maintains that when defendant fired the second shot at the officer's head, which resulted in the bullet entering his brain, common sense would mandate the Conclusion that defendant's conduct was almost certain to cause death or serious bodily injury resulting in death.

N.J.S.A. 2C:2-2b defines the three mental states involved here. "A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result." N.J.S.A. 2C:2-2b(2). "A person acts purposefully with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2b(1). N.J.S.A. 2C:2-2b(3) states that "[a] person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation."

Because the Legislature has made serious bodily injury murder subject to the death penalty at least since May 5, 1993, L. 1993, c. 111, following a 1992 constitutional amendment, the State does not have to prove that a defendant purposefully or knowingly killed a victim to establish a capital murder as long as the State proves that the defendant purposefully or knowingly caused serious bodily injury resulting in death. Cooper, supra, 151 N.J. at 361, 376-77.

The 1992 constitutional amendment made SBI murder death eligible when the actor "purposely or knowingly caus[es] serious bodily injury resulting in death." N.J. Const. art I, ¶ 12. That amendment, however, did not define "serious bodily injury." The 1993 amendments to the Death Penalty Act implementing the 1992 constitutional amendment did not alter the Code's existing definition of serious bodily injury: "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b. When the Code's definitions of "serious bodily injury" are considered in conjunction with the 1992 constitutional amendment, it becomes apparent that only purposely or knowingly causing serious bodily injury "which creates a substantial risk of death" can satisfy the SBI capital murder requirement. Objectively speaking, an injury that creates a substantial risk of death means one from which death is practically certain to ensue. Thus, in order to convict a defendant of SBI capital murder, a prosecutor must prove that a defendant purposely or knowingly caused an injury from which death is practically certain to ensue.

This Court addressed the difference between purposeful and knowing murder and aggravated manslaughter in State v. Rose, 112 N.J. 454, 479-85 (1988). The facts of Rose were strikingly similar to this case except that there was no guilty plea. The defendant in Rose shot a police officer out of "panic" because he "did not want to get caught." Id. at 480-81. The trial court denied defendant's request for a jury instruction on aggravated manslaughter. Id. at 479. This Court affirmed the defendant's conviction for knowing or purposeful murder because there was no rational basis for the jury to conclude that the defendant was not aware of the consequences of his actions. Id. at 485. The Court stated, "[d]efendant's statement that he `panicked, did not want to get caught,' does not constitute a rational basis for a jury to conclude that defendant was merely reckless [as opposed to acting purposely or knowingly] and thus unaware that firing the shotgun into [the victim's] abdomen was `practically certain' to cause his death." Ibid.

Similarly, in this case defendant informed the trial court that he was practically certain that shooting Sergeant Gonzalez would cause his death. Defendant's argument that his intention was to get the officer away from him because he did not wish to return to prison does not constitute a rational basis for a Judge or jury to conclude that defendant acted recklessly, as opposed to acting purposely or knowingly, and thus, unaware that firing two shots within six feet at Sergeant Gonzalez's upper body region was "practically certain" to cause death or serious bodily injury that results in death.

In addition to defendant's own words, common sense informs us that when someone shoots at another person in the upper body region, such as the neck and head, the shooter's purpose is either to cause serious bodily injury that results in death or to actually cause death, especially where no other plausible explanation is given. Although defendant claims he did not specifically aim his gun at Sergeant Gonzalez's upper body region, he admits that he intended the bullet to hit the victim and that his purpose in shooting Sergeant Gonzalez was to cause serious bodily injury if not to kill him. Moreover, the circumstances under which defendant shot the victim -- at close range, two shots, not one, to the upper body region -- manifested an indifference to whether the victim was killed instantly or eventually died from the infliction of serious bodily injury. Therefore, defendant's plea established that he had the requisite mens rea for purposeful or knowing murder pursuant to N.J.S.A. 2C:11-3a(1) and (2), and the trial court did not err in finding that defendant acknowledged a mental state required for capital murder.

The State's assertion based on the trial court's statement that defendant's conduct was, at the very least, a reckless disregard for whether Sergeant Gonzalez's death would result from the shots fired into his body, is simply another way of saying that when defendant purposely shot the victim he was practically certain that death would ensue. The source of that language used by the trial court comes from the Model Jury Charge in Capital Cases referred to as the "Gerald 'Trigger' Issue Charge." That charge in part provides:

"To find defendant guilty of murder all jurors must unanimously agree that defendant purposely or knowingly caused death or that he purposely or knowingly caused serious bodily injury resulting in death with reckless indifference as to whether his conduct would cause death, or that he purposely or knowingly caused serious bodily injury resulting in death, but all jurors do not have to agree unanimously as to which form of murder is present so long as all believe it was one form of murder or the other. However, for a defendant to be subject to capital punishment, all jurors must agree that the defendant either purposely or knowingly caused death or serious bodily injury resulting in death while demonstrating reckless indifference as to whether his conduct would cause death." [Emphasis added.]

That language undoubtedly was inserted into the charge in an attempt to inform the jury that under the Code's definition of serious bodily injury, not every purposeful or knowing stabbing or shooting or conduct of an actor that results in death will satisfy the SBI capital murder requirements as opposed to intentional murder under N.J.S.A. 2C:11-3a(1) and (2). In other words, since the post-Gerald constitutional amendment, does a SBI capital murder require proof that the actor acted with purpose or knowledge that death would result from his or her conduct? The simple answer is no. The above charge was formulated based on this Court's statement that after the post-Gerald constitutional amendment, the jury charge "should clarify that the mental state required for a capital conviction based on SBI murder should be consonant with the federal constitutional mandate in Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987), that the actor be recklessly indifferent to whether the result of the conduct would be death." Harris, supra, 141 N.J. at 548.

Tison and Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), the cases that persuaded the Court in Harris to use the phrase "recklessly indifferent to whether the result of the conduct would be death," both dealt with statutes permitting a sentence of death for felony murder based on accomplice liability. Those strict liability crimes occurred without the capitally convicted defendants sharing the required intent to kill or the intent to inflict serious bodily injury upon the victims. However, the rationale for the reckless indifference standard articulated in Tison and Enmund is unnecessary to ensure death worthiness in SBI capital murders given the structure of our Code. A death-eligible offense in New Jersey under the Code has built into it other sufficient protections.

First, felony murderers are not eligible for the death penalty under the Code. N.J.S.A. 2C:11-3c. Second, the requirement that a defendant "committed the homicidal act by his own conduct" generally precludes accomplice and co-conspirator liability from triggering death eligibility. Ibid. The only exceptions are limited to those persons "who as an accomplice procured the commission of the [murder] by payment or promise of payment of anything of pecuniary value," N.J. Const. art. I, ¶ 12; N.J.S.A. 2C:11-3c; and leaders of a narcotics trafficking network who in furtherance of a conspiracy to traffic in narcotics command or by threat or promise solicited the commission of murder. N.J.S.A. 2C:11-3c. The limited accomplice and co-conspirator liability provisions have built-in-protections that render unnecessary the protections required by Tison and Edmund.

Although the reckless indifference phrase was used in the present case to refer to the circumstances under which defendant acted and did not refer to defendant's state of mind, in a SBI capital murder case in which aggravated manslaughter pursuant to N.J.S.A. 2C:11-4 is also charged to the jury, the use of the reckless indifference language to describe both the defendant's state of mind in the aggravated manslaughter charge and the circumstances under which he or she acted in the SBI capital murder charge conceivably could lead to some confusion. Because this case involved a guilty plea to capital murder, there was no confusion in the trial court's finding that defendant had the requisite mental state for capital murder. Nonetheless, the "Gerald 'Trigger' Issue [Jury] Charge" should be re-examined by the Trial Judges Committee on Capital Causes.

Factual Basis for Guilty Plea

Next, defendant argues that the factual basis for his guilty plea was inadequate. First, defendant contends that there was no factual basis to support his statement that he was the gunman because the State lacked sufficient evidence to identify the trigger person. Second, defendant argues that the court erred when it failed to make a factual finding that the evidence corroborated defendant's claim that he was the trigger person. We reject both claims.

Rule 3:9-2 provides, in pertinent part, that "[t]he court, in its discretion, . . . shall not accept [a] plea without first . . . determining by inquiry of the defendant and others . . . that there is a factual basis for the plea." See, e.g., State v. Eisenman, 153 N.J. 462, 471 (1998) (observing that defendant may provide factual basis for guilty plea during plea colloquy). When a defendant is charged with capital murder, however, "no factual basis shall be required from the defendant" as long as the court is satisfied that a factual basis for the plea has been established from the proofs presented. State v. Jackson, 118 N.J. 484, 488 (1990); see also State v. Davis, 116 N.J. 341, 372 (1989) (stating "a capital defendant should not be disadvantaged by a plea requirement that he or she furnish the factual basis for the plea"). The purpose of the Rule is to avoid forcing "defendant[s] exposed to the death penalty . . . to state anything that can support an aggravating factor." Jackson, supra, 118 N.J. at 489; see Davis, supra, 116 N.J. at 371.

In the present case, there was not only a factual basis to support defendant's guilty plea, but also the trial court expressly made a factual finding that the evidence supported defendant's claim that he was the gunman. During the plea hearing, defendant specifically stated that he exited the passenger side of the vehicle to talk to the officer, that Staples was driving, and that he had been out of the car "less than 10 [seconds]" -- "4, 5 seconds, 6 maybe . . . [s]omewhere in that [range]," before he shot the officer twice. He informed the court that Sergeant Gonzalez "was going for his gun and I just wanted him away from me . . . I went for mine and shot him." Defendant even admitted firing his gun within six feet or so of the victim.

Further, the evidence from the scenes of the murder and the arrest support defendant's statement that he was the passenger because he exited the vehicle from the passenger's side at the scene of the arrest. Defendant was in possession of the murder weapon when he ran from the vehicle. Forensic evidence supports defendant's statement that Sergeant Gonzalez was shot twice and that he was shot from a distance of six feet or less.

The trial court recognized all of the similarities between defendant's statements at the plea hearing and the extrinsic evidence. After listening to defendant's plea statements, reviewing a transcript of a taped statement recorded by Sergeant Clay just a few hours after the shooting, Clay's investigative report, and the autopsy report, the trial court observed:

"I'm satisfied that [Simon] has provided a sufficient factual basis to establish, along with the exhibits that have been submitted in evidence, that he is guilty. "I'm satisfied that with respect to the capital murder count that he did, without any justification, whatsoever, knowingly and purposefully fire 2 shots into the body at close range, within several feet, standing within 6 feet and with his arms -- his arm that was holding the gun partially extended, fired these 2 shots into the body of Sergeant Gonzalez and that he did so, therefore, by his own conduct."

We, therefore, agree with the trial court that there was a sufficient factual basis for defendant's guilty plea and that the corroborating evidence establishes that defendant's admission that he was the trigger person was trustworthy. See State v. Roach, 146 N.J. 208, 229, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (holding "evidence and inferences to be drawn from the evidence were sufficient for the jury to determine that the confession was trustworthy").

V.

"Prior Murder" ...


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