On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 96-10-0575.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...