On appeal from the Superior Court of New Jersey, Law Division, Essex County, Ind. No. 91-08-3897.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sapp-Peterson.
Defendant Alan Mitchell appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
In December 1991, a jury convicted defendant of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). These convictions stem from the fatal shooting of the victim after defendant and the victim were involved in an altercation earlier in the evening of July 8, 1991. The victim apparently got the better of the fight, and defendant left the scene and went home to change his clothes.
Defendant retrieved a gun, which he had purchased days earlier, from bushes near his home and then returned to the area where he and the victim had fought. Defendant saw the victim sitting on a step, approached the victim from the rear, and shot him in the head. Then as he walked past the victim in front of him, he shot the victim again while asking the victim, "Why did you jump me? Why did you take advantage of me because I was drunk?" Defendant then pointed the gun at the head of another individual who had been involved in the earlier altercation and fired, but the gun misfired. After being told that the victim was thought to be dead, defendant cried out, "Oh God, I didn't mean to do it."
Defendant was sentenced on January 10, 1992, to an aggregate forty-year period of incarceration with a thirty-three and one-third year period of parole ineligibility. Defendant appealed, alleging (1) error in the jury charge because the trial judge refused to recharge intoxication as a defense when the jury asked for a clarification of the terms "purposely" and "knowingly," (2) failed to explain to jurors that if they were uncertain that defendant acted in the heat of passion, they should convict him of passion/provocation manslaughter rather than murder, (3) failed to merge one of the weapons offenses into murder and assault convictions, and (4) as a result, improperly imposed a consecutive sentence on the weapons offense. We affirmed but remanded solely on the imposition of consecutive sentences after we determined the trial judge failed to articulate reasons for imposing consecutive sentences. State v. Mitchell, No. A-3517-91T4 (App. Div. December 20, 1993) (unpublished opinion).
The Supreme Court denied defendant's petition for certification on February 22, 1994. Defendant filed a pro se petition for PCR on April 5, 2002, arguing that his trial counsel was ineffective because he did not secure an expert witness to assist defendant with the self-induced intoxication defense. The trial court initially entered an order denying the petition on July 8, 2002. This order was later vacated on August 27, 2004, because defendant was entitled to assignment of counsel in connection with the initial pro se petition.
Judge Codey denied the petition on procedural grounds, concluding that defendant's claim that his trial counsel failed to secure an expert witness to assist defendant with his self-induced intoxication defense "could have and should have been raised in [defendant's] initial appeal, and [was], thus, barred procedurally," pursuant to Rule 3:22-4. He also found that in petitioner's direct appeal, there was extensive discussion of the intoxication defense and therefore pursuant to Rule 3:22-5, "a prior adjudication upon the merits of any ground for relief is conclusive."
Additionally, Judge Codey noted that defendant was sentenced on January 10, 1992, and contrary to Rule 3:22-12, defendant failed to file his petition within five years of the date of the entry of judgment and offered no credible facts demonstrating that the delay beyond the five-year time requirements was due to excusable neglect. State v. Mitchell, 126 N.J. 565 (1992). Further, on the merits of defendant's petition, the judge concluded that there was considerable evidence before the jury about defendant's intoxicated state on the evening of the murder. Finally, the judge found that the interim report prepared by defendant's proposed PCR expert questioned the sustainability of an intoxication defense. The present appeal followed.
On appeal defendant raises the following points:
THE COURT ERRED IN DENYING THE PETITION FOR ...