On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Warren County, Indictment No. 99-02-0085-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 21, 2009
Before Judges Stern and Newman.
Defendant appeals from the denial of his second petition for post conviction relief (PCR).
After an argument with his girlfriend Aia Walters and a girlfriend of hers, Demetrius Wideman, resulting in an assault of the latter, Wideman's father, George Davis, accompanied her back to the scene. As stated in the opinion on the defendant's direct appeal,*fn1 defendant told Wideman to "go get whoever you want," and Wideman responded she would be right back. When she returned with Davis, defendant pulled out a knife and stabbed Davis, causing his death. He also kicked Davis several times in the face while lying on the ground.
Defendant confessed but repudiated the statement at trial, indicating that he acted in self defense and claimed that the bigger man "was going to kick my ass."*fn2
The trial court ordered a new trial, based on the charge of non-capital murder resulting from serious bodily injury resulting in death, as a result of the Supreme Court opinion in State v Cruz, 163 N.J. 403 (2000). We granted leave to appeal and reversed. After sentencing, we affirmed the convictions and the Supreme Court denied certification. We found sufficient evidence to sustain the murder conviction and that the police failure to advise him that the victim had died, when asked by defendant how he was doing, did not require suppression of his statement notwithstanding the claim defendant would not have given the statement if he knew the matter involved murder.
The defendant's first PCR was denied, and we affirmed the order. Defendant now appeals from the denial of his second petition.
The State asserts procedural and substantive reasons to affirm the rejection of the petition but does not affirmatively assert a time bar. In light of our disposition we by-pass the procedural question.
Defendant attacks the charges on passion-provocation as well as murder based on serious bodily injury resulting in death. He also asserts appellate counsel was ineffective for not raising these issues on direct appeal and claims that we erred in holding State v. Cruz, supra, was not retroactive when we granted leave to appeal and reversed the grant of a new trial. However, defendant recognizes we have addressed the issue concerning the SBI murder charge in reversing the new trial. He really asserts only that counsel was ineffective for not petitioning the Supreme Court after the interlocutory reversal or should have raised the issue again on the direct appeal to preserve it for consideration in the Supreme Court. In any event, it is the law of the case in this court.
As for the claim regarding the passion provocation charge, the State claims it was asserted as a basis for the new trial and rejected by us on the interlocutory appeal.*fn3 Passion-provocation manslaughter was charged even though defendant possessed a weapon and waited for someone to return to the scene. In any event it was charged, and whether or not the issue was, or should have been, raised on the interlocutory or direct appeal or first PCR, there was no fundamental injustice in the charge that was given.*fn4 Suffice it to say that the jury was expressly instructed that the State had the burden of disproving passion-provocation as part of its burden of proving murder. See State v. Coyle, 119 N.J. 194, 222 (1990); State v. Grunow, 102 N.J. 133, 145 (1986).
The order denying defendant's second petition for post-conviction relief is affirmed substantially for the reasons expressed by Judge John H. Pursel in his opinion ...