On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 86-03-0524.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Wefing and R. B. Coleman.
Defendant William Lawton appeals from an October 19, 2005 order by the Superior Court of New Jersey, Law Division, Bergen County, denying his petition for post-conviction relief (PCR). We have considered defendant's contentions in light of applicable standards, and we affirm.
The salient facts are not in dispute and were succinctly recited in an earlier opinion of this court.
Defendant was beaten in a bar in 1986.
He went home, got a handgun, went back to the bar, and shot and killed a person he thought was one of his assailants. Only ten minutes elapsed between the end of the beating and the shooting. The critical issue in the case was whether defendant acted in the heat of passion with reasonable provocation. If he did so act, the offense would be manslaughter, not murder. [State v. Lawton, 298 N.J. Super. 27, 31 (App. Div.), certif. denied, 151 N.J. 72 (1997).]
On April 21, 1986, the State charged defendant, William Lawton, in Bergen County Indictment No. 86-03-0524, with knowing and/or purposeful murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:11-3a(2) (count one), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two). Defendant was found guilty on both counts and sentenced to life imprisonment with thirty years of parole ineligibility for the murder and a concurrent term of seven years for the gun possession charge. On direct appeal, the judgment of conviction was affirmed and the Supreme Court denied defendant's petition for certification. State v. Lawton, 122 N.J. 152 (1990). Thereafter, as a result of defendant's appeal from the denial of his petition for PCR, this court remanded the case for a hearing, following which defendant's motion for PCR was again denied. Defendant's appeal from that decision was addressed in a published opinion issued on February 25, 1997, in which we reversed defendant's murder conviction due to an inadequate jury charge on passion/provocation manslaughter in Lawton, supra, 298 N.J. Super. at 41.
Defendant was retried before Judge Elijah L. Miller and a jury on March 24 to April 1, 1998. That jury also found defendant guilty of murder, and on May 15, 1998, Judge Miller again sentenced defendant to life in prison with a thirty-year parole ineligibility. In an unpublished opinion issued on February 15, 2000, we affirmed defendant's conviction, but remanded for a modification of the sentence from life to the minimum required, thirty-year base term with a period of parole ineligibility of thirty years. State v. Lawton, No. A-6556-97T4, (App. Div. February 15, 2000) (slip. op. at 4), certif. denied, 165 N.J. 530 (2000). Defendant's petition for certification was denied on September 8, 2000.
Subsequently, defendant filed another petition for PCR in which he claimed that he had received ineffective assistance of trial and appellate counsel. Judge Patrick J. Roma heard oral arguments on that petition on October 11, 2005 and issued an order denying relief on October 19, 2005. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I: TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE CAUSING AN UNJUST RESULT, DUE TO THE FAILURE TO CHALLENGE THE JURY INSTRUCTIONS, WHICH IN TURN FAILED TO REQUIRE THE STATE TO AFFIRMATIVELY PROVE THE ABSENCE OF THE ELEMENTS OF REASONABLE PROVOCATION IN LIGHT OF THE FACT THAT THERE WAS NO EVIDENCE DISPROVING REASONABLE PROVOCATION.
POINT II: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL THROUGH ERRORS INCLUDING TRIAL COUNSEL'S OPENING AND CLOSING STATEMENTS DIRECTLY CONTRAVENING DEFENDANT'S ASSERTION THAT THE DECEDENT WAS ONE OF ...