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State v. Simmons


May 13, 2009


On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 96-10-0575.

Per curiam.


Argued February 3, 2009

Before Judges Yannotti and LeWinn.

Defendant Frederick Simmons appeals from the June 15, 2007 order of the trial court denying his petition for post- conviction relief (PCR). For the reasons that follow, we affirm.

Tried to a jury in 1997, defendant was found guilty of murder, N.J.S.A. 2C:11-3(a)(1) and (2); felony murder, N.J.S.A. 2C:11-3(a)(3); conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and 2C:5-2; two counts of armed robbery, N.J.S.A. 2C:15-1; attempted murder, N.J.S.A. 2C:11-3 and 2C:5-1; aggravated assault, N.J.S.A. 2C:12-1(b)(2); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and hindering apprehension, N.J.S.A. 2C:29-3(b)(1). The State sought the imposition of capital punishment; however, the jury was unable to reach a unanimous decision on that punishment. Defendant received an aggregate sentence of life plus thirty-nine years, with a thirty-eight-year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed in State v. Simmons, No. A-5099-97 (App. Div. May 22, 2000). Thereafter, the Supreme Court denied defendant's petition for certification. State v. Simmons, 165 N.J. 605 (2000).

The trial evidence is set forth at length in our prior opinion. State v. Simmons, supra, slip op. at 5 to 13. Briefly summarized, that evidence revealed that defendant, along with co-defendant John Wesley Poteat, went to the Firehouse Tavern in Wildwood on May 10, 1996, at approximately 2:00 a.m., with the intention of committing a robbery. Once inside the bar, Poteat engaged in a struggle with Michael James, the part-owner and bartender. Defendant recognized the lone patron in the bar, Robert Connors. In his statement to the police, later that morning, defendant acknowledged that he pulled Connors into the bathroom while James and Poteat were fighting. He then "threw [Connors] face down into the sink because [defendant] was afraid of being identified." Id. at 8.

Then [Connors] made eye contact with Simmons "which was a no-no to [him]," so Simmons, who was six feet tall and weighed 290 pounds, slammed [Connors] to the ground and kicked him on the back of the neck.

Simmons claimed that he did not "really want to hurt him," but rather just to "shut him up." He straddled the victim, holding him down, and took a straight knife with a six-inch serrated edge from his back belt and "took it straight to him." "[He] went to the neck" and "just did the job." Simmons kicked [Connors] in the head, wiped the knife with a paper towel, exited the bathroom and tried to leave, but ran into James and Poteat outside the door. Simmons kicked James to get him out of the way, but because of the noise of the fighting [defendant] went back into the tavern and through the Pine Avenue door, ran an "obstacle course," and eventually threw away the knife. [Id. at 8 to 9.]

When the police responded to the tavern, they "found Connors lying dead, face down on the bathroom floor in a puddle of blood and hot water from pipes where the sink had been broken off the wall. Two of the three cash registers in the bar were open and emptied, only change remained." Id. at 6 to 7.

Defendant filed a PCR petition on October 24, 2001, claiming: (1) admission of his confession into evidence was erroneous; (2) evidence relating to his confession should have been excluded at trial; (3) the language charging murder in count one of his indictment was defective; (4) there was error in the jury charge; and (5) appellate counsel rendered ineffective assistance. Counsel was assigned and, on March 1, 2006, filed a supplemental PCR petition, adding a claim of ineffective assistance of counsel at sentencing.

The trial court held a hearing on defendant's PCR petition on June 8, 2007, during which defendant argued that he was deprived of the effective assistance of trial counsel because of an issue relating to the conflicting testimony of two defense experts. Defendant had interposed a defense of intoxication, or diminished capacity, premised upon evidence that he was so intoxicated on the night in question that he could not have formed the requisite mental states of (1) purposeful or knowing conduct to sustain a murder conviction under N.J.S.A. 2C:11-3(a)(1) and (2); or (2) purposeful conduct to sustain the robbery conviction under N.J.S.A. 2C:15-1, which, in turn, had formed the basis for the felony murder conviction under N.J.S.A. 2C:11-3(a)(3).

In support of this defense, defendant first presented the testimony of Dr. Kenneth J. Weiss, a forensic psychiatrist, who stated that defendant had told him that, in the hours immediately prior to the incident, defendant had consumed cocaine and two to three forty-ounce bottles of malt liquor. In his report, however, Dr. Weiss had opined that "the evidence [wa]s not conclusive that [defendant] was intoxicated or that he would meet the prostration of faculties test in which voluntary intoxication itself negates elements of culpability." The prosecutor confronted Dr. Weiss with this portion of his report on cross-examination.

Defendant then presented Dr. Leon Rosenberg, a forensic psychiatrist, who testified that defendant had told him that he had used twenty to twenty-four bags of cocaine and had consumed eighty ounces of malt liquor and two beers on the evening in question. Dr. Rosenberg concluded that "because of the cocaine in his system," defendant's faculties were prostrated and he was not capable of performing a knowing or purposeful act on the occasion in question. On cross-examination, Dr. Rosenberg acknowledged that his conclusion contradicted that of Dr. Weiss.

The prosecutor commented extensively in summation on the discrepancy between the two defense experts' opinions.

At the PCR hearing, defendant argued that trial counsel rendered ineffective assistance by giving Dr. Weiss' report to the State and by calling Dr. Weiss as a witness.

Defendant raised a second claim of ineffective assistance of counsel at the PCR hearing, namely trial counsel's failure to request a charge, pursuant to State v. Cooper, 151 N.J. 326 (1997), in which the Court held that a jury must be given some sentencing information during the guilt phase of a capital case. The jury must be informed . . . that a conviction for purposeful-or-knowing murder makes the defendant eligible to receive a sentence of death. It is conceivable that that instruction could cause a jury to speculate about the sentence for non-capital-homicide charges submitted for deliberations. To address that concern, the guilt-phase jury in cases tried after the date of this decision should be informed by the trial court that the non-capital-homicide charges are extremely serious offenses and that although they do not expose the defendant to the death penalty, they carry severe prison sentences. The jury should not be informed what those numerical terms are. The jury should also be instructed not to concern itself with the comparative severity of the sentences for various offenses submitted to it for its deliberations, and that its responsibility is solely to determine whether the prosecution has met its burden of proving beyond a reasonable doubt the defendant's guilt on the charged offenses.

[Id. at 378-79 (internal citation omitted).]

State v. Cooper was decided while defendant's trial was in progress. The trial judge had charged the jury, in pertinent part:

If you are unable to unanimously agree on the one hand as to whether defendant purposely or knowingly caused death or serious bodily injury resulting in death, with reckless indifference as to whether his conduct would cause death, or on the other hand, as to whether he purposely or knowingly caused serious bodily injury resulting in death, that is a permissible final verdict resulting in a sentence for murder of at least 30 years in prison without parole, provided that all jurors agree that defendant at least purposely or knowingly caused serious bodily injury resulting in death.

If you have a reasonable doubt as to whether the killing was by his own conduct, or if you are unable to reach a unanimous decision beyond a reasonable doubt as to whether defendant committed the murder by his own conduct, as distinguished from being responsible for it as an accomplice, that is a permissible final verdict on this issue that would result in the imposition of a mandatory sentence for murder of at least 30 years in prison without parole.

If you unanimously find beyond a reasonable doubt that defendant committed the murder by his own conduct, the case would proceed to the penalty phase for a decision by you on whether the punishment for murder would be imprisonment for at least 30 years without parole, or death.

PCR counsel argued that it was "inappropriate to tell the jurors the number of years. The reason being . . . what effect it can have on the jurors." Counsel argued:

There's a weighing process. And for the [c]court to say 30 years[,] it may tend to militate or to balance off . . . on[e] . . . [an]other's perspective [on] the death component and it may have had an impact therefore on deliberations because it was said during the trial, it wasn't said during the death phase.

After hearing arguments, the PCR judge denied relief on both claims. Regarding the conflicting experts' testimony, the judge stated:

The State's case against Mr. Simmons was overwhelming, not only his own confession, but a host of other proofs including physical evidence. Certainly it's the defendant's burden to establish a prima facie claim in order to be granted an evidentiary hearing. I don't view that as the appropriate outcome in this situation. . . . I do not believe the defendant has demonstrated that there was a reasonable probability that but for this deficiency the outcome of the proceeding would be different. The only defense theory that could have been proffered in my view is the one that was presented to the jury, that being of diminished capacity, of intoxication. Defense counsel did what it could, given the case that they had. They obtained experts. The experts testified. They presented the experts even though their testimony didn't jibe in order to give the jury the opportunity to listen to the theories, to make a decision as to whether or not they believed the experts' testimony warranted a conviction for a lesser offense . . . . [T]here is not a reasonable probability that but for those experts' testimony that the outcome of the proceeding would be different. The proofs were so overwhelming here, not just the detailed confession but the other circumstances of the event as developed during the trial. . . . There doesn't seem to be any specific instance or omission on the part of appellate counsel that has been specified that warrants that conclusion either. I don't believe the decision to present two experts with different opinions based on slightly different facts was so devastating to the defendant that but for the presentation of their testimony he would not have been convicted. On the contrary, counsel did the best that they could with the case they had. It's not always easy to defend capital murder cases where the proofs are as overwhelming. . . . They did the best that they could given what they had to work with.

Regarding the Cooper issue, the trial judge noted that "even if it was an error" defendant did not meet the "[']but for['] test . . . given the overwhelming proofs presented by the State at trial." The judge added that she did not "see where the error, if it was an error, constitutes such ineffective assistance of counsel that there ought to be an evidentiary hearing on this question . . . ." On June 15, 2007, the PCR judge entered an order reflecting her decision rendered from the bench.

On appeal, defendant presents the following arguments for our consideration:


A. Trial Counsel Was Constitutionally Deficient By Having Dr. Weiss Testify, Who Eviscerated The Intoxication/Diminished Capacity Defense

B. Trial Counsel Was Constitutionally Deficient By Not Requesting The Cooper Charge In The Jury Instructions And Appellate Counsel Was Constitutionally Deficient By Not Raising This Issue On Direct Appeal

C. The Cumulative Errors Mandate That Defendant's Convictions Be Reversed Or That He Be Afforded An Evidentiary Hearing

Having considered these contentions in light of the record and the applicable law, we find them to be without merit. We affirm substantially for the reasons stated on the record by Judge Carmen Alvarez in her decision from the bench on June 8, 2007. R. 2:11-3(e)(2). We add only the following brief comments.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant must first show that his attorney's performance was deficient. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

The State concedes, and we concur, that defense counsel "should not have informed the State that he and [d]efendant spoke with [Dr.] Weiss, should not have provided [Dr.] Weiss' report to the State, and should not have called [Dr.] Weiss as a witness."

The State argues, however, that trial counsel's decision to present Dr. Weiss as a witness "did not materially contribute" to defendant's conviction, because defendant would not have prevailed on his voluntary intoxication defense on the basis of Dr. Rosenberg's testimony alone. We concur with this, as well.

The record reflects that Dr. Rosenberg's opinion was almost entirely based upon information provided to him by defendant. Review of Dr. Rosenberg's testimony and report reveals that he took his summary of the events on the night in question directly from defendant's version of those events.

Moreover, as the PCR judge noted in denying relief, the State's case against defendant was "overwhelming," including not only his own confession, but "a host of other proofs including physical evidence." It is worth noting that the PCR judge had presided over the defendant's trial ten years earlier and had a clear recollection of the evidence presented at that trial.

Under the circumstances, we concur with the PCR judge's conclusion that, while defendant may have established a deficiency in trial counsel's performance, he nonetheless failed to meet the second prong of the Strickland test, namely that this particular aspect of trial counsel's performance was "so deficient as to create a reasonable probability that the[] deficienc[y] materially contributed to defendant's conviction . . . ." Fritz, supra, 105 N.J. at 58 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693).

Similarly, regarding the Cooper issue, the PCR judge correctly concluded that, "if there was error in light of the proofs presented by the State[,]" nonetheless defendant had once again to meet the "but for" test of the second prong. Defendant's contention on appeal that the "inclusion of [his] exposure without the death penalty in play satisfied the second prong by inevitably and wrongfully abetting a compromise verdict," is sheer speculation. Given the trial record, we find no basis on which to conclude that the jury's verdicts were based on anything other than their considered assessment of the evidence which, as noted, was "overwhelming[ly]" indicative of defendant's guilt of the offenses charged. For this reason, we concur with the trial judge that defendant failed to make a prima facie case of ineffective assistance of trial and/or appellate counsel on this issue.

Defendant argues that the trial court erred by failing to conduct an evidentiary hearing on his petition; however, defendant had the burden to establish a prima facie claim in support of his PCR petition in order to be entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the . . . test set forth in Strickland v. Washington . . . ." Id. at 463. Defendant has failed to meet that burden here.



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