On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-07-03249.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and C. L. Miniman.
Following a jury trial, defendant Shawn Coit was convicted of murder, N.J.S.A. 2C:11-3(a)(1) and (2); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count two); and third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count three). The charges arise from the homicide of Rodney Shaw. Judge Marilyn Loftus sentenced defendant to thirty years without parole on the murder conviction and concurrent terms of eighteen months and four years on the other convictions. On direct appeal, defendant argued that he was denied a fair trial based on ineffective assistance of counsel, evidence errors, errors in the jury charge and errors in the jury selection process decision. We affirmed the convictions, but held that the two weapons offenses should have been merged and the separate sentence on the "lesser weapon offense" vacated. State v. Coit, No. A-5722-90 (App. Div. May 19, 1993), certif. denied, 134 N.J. 483 (1993).
Defendant filed pro se his first petition for post-conviction relief (PCR) pro se in August 1994. Designated counsel filed a brief alleging errors in the jury charge and ineffective assistance of trial counsel. In a supplemental pro se brief, defendant alleged similar errors. Judge Marilyn Loftus denied the petition. We affirmed, finding that defendant's PCR contentions were procedurally barred and that defendant had failed to establish a prima facie case of ineffective assistance of counsel. We affirmed. No. A-4737-94 (App. Div. Oct. 3, 1996), certif. denied, 148 N.J. 463 (1997).
Defendant filed a writ of habeas corpus petition with the United States District Court for New Jersey raising: ineffective assistance of counsel arguments; challenging the admission of autopsy photographs and hearsay testimony; errors in the jury selection process; and errors in the jury charge. The petition was denied by Judge Alfred M. Wolin. Coit v. Morton, No. 97-CV-4485 (D.N.J. September 8, 1998), aff'd 211 F.3d 1261 (3d Cir. 2000), cert. denied, 531 U.S. 860, 121 S.Ct. 146, 148 L.Ed. 2d 96 (2000).
Defendant filed his second petition for PCR in August 2003, using the name Rabbatu Omotunde Ali. He raised issues again about errors in the jury selection process, errors in the jury charge, and ineffective assistance of counsel. The second petition was denied on December 7, 2004 by Judge Michael J. Nelson. Defendant appealed. We granted the State's motion for summary disposition and dismissed the appeal because "defendant's appeal was out of time and there is no basis to relax Rule 3:22-12." A-2076-04 (App. Div. Sept. 8, 2005), certif. denied, 186 N.J. 242 (2006).
Defendant filed the instant petition, his third, again alleging that the court erred in charging the jury that "the charge of murder can be inferred from the fact of homicide itself, and from the fact of use of a weapon." Although defendant conceded that this issue was raised in his first petition, he contended that his petition is not barred because the issue was raised before this court's decision in State v. Chavies, 345 N.J. Super. 254 (App. Div. 2001), "which affirmed petitioner's position." Defendant's third PCR petition was summarily denied by Judge Ned M. Rosenberg on May 31, 2007.
On appeal, defendant contends:
THE PASSION PROVOCATION INSTRUCTION SHOULD HAVE NEVER BEEN GIVEN IN A TRIAL WHERE THERE WAS NO EVIDENCE OR TESTIMONY THAT DEFENDANT ACTED UNDER ADEQUATE PROVOCATION.
THE TRIAL COURT INSTRUCTED THE JURY THAT A HOMICIDAL ACT WITH A KNIFE PERMITS AN INFERENCE AS TO THE PURPOSE AND KNOWLEDGE ELEMENTS OF THE OFFENSE OF MURDER.
THE ISSUES PRESENTED ARE NOT PROCEDURALLY BARRED AND IN THAT REGARD, THE STATE'S POSITION SHOULD BE CONSIDERED WAIVED AS THEY FAILED OR REFUSED TO ...