On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-12-3763.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Rodríguez, Reisner and Chambers.
Defendant Frederick Hedgespeth appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
In September 1996, defendant was convicted of the murder of Shawn McKay, N.J.S.A. 2C:11-3(a)(1) or (2); felony murder, N.J.S.A. 2C:11-3(a)(3); first degree robbery, N.J.S.A. 2C:15-1; two counts of fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b). Judge Donald S. Goldman imposed the following sentence: life with a thirty-year parole disqualifier; a consecutive eighteen-year term with a six-year parole disqualifier; two consecutive eighteen-month terms without parole; and a consecutive ten-year term with a five-year parole disqualifier. We affirmed on direct appeal. State v. Hedgespeth, No. A-1670-96T4 (App. Div. Nov. 12, 1998), certif. denied, 158 N.J. 71 (1999).
The facts are set forth fully in our opinion on direct appeal. This is a summary. In the early evening of October 24, 1995, fifteen-year-old Antonio Rosario was sitting on the porch of a house in Orange along with David Gary, Cherice Gary, and defendant. Defendant asked Antonio to give him some potato chips. Antonio refused. Defendant pulled out a gun and held it to Antonio's head, demanding the chips. Antonio gave him the chips and left to go to the park. David told defendant to "stop playing" and to leave. As defendant was about to leave, Shawn came walking up the street. Defendant asked Shawn for twenty dollars, but Shawn refused. Defendant pulled a gun out and pointed it at Shawn. Defendant put the gun away.
David told defendant to give Shawn the money back. Defendant pulled out the gun again and demanded that Shawn give him the keys to his car. Shawn complied, but refused to walk to the grocery store to get the car. Defendant became angry and before David and Shawn could flee, defendant fired his gun and shot a bullet into Shawn's chest. David called the police. Defendant ran away, telling David to stay away from Shawn. David testified at trial that he interpreted this to mean that defendant wanted Shawn to die. Ultimately, Shawn did die because the bullet severed his aorta and lungs.
At the scene of the crime, Detective Brian David found a spent bullet casing. After obtaining a description of the shooter, the detective and other officers went to arrest defendant. As the detectives approached the building, defendant stepped out, saw them, then ran back inside and shut the door. A family member allowed the detectives to come inside and arrest defendant. The detectives asked the relative where the gun was located. She said in a box behind the door. The detectives retrieved it and it matched the bullet casing found at the scene.
After being arrested, defendant was taken to the police station where he signed a Miranda*fn1 warning form. He admitted to shooting Shawn because there was a "hit" on him and he thought Shawn was going to kill him. He said, "I shot the motherf * * * * r. That's it." He only shot Shawn once because "you don't need to shoot a n * * * r anymore if you know how to shoot." He admitted that he intended to kill Shawn. He wanted the keys to the car so he could destroy it. He also told his mother over the telephone that he shot Shawn.
During jury voir dire, defense counsel asked for a question relating to an intoxication defense. Judge Goldman cautioned defense counsel that, "there is a potential adverse effect, if I refer to it in my instructions to the jury and it turns out I do not make any charge on it, because you failed to present any evidence of it . . . . [t]hat may rebound against you." A question on intoxication was ultimately presented to potential jurors during voir dire. Additionally, during his opening statement, defense counsel told the jury, "We are going to show you that . . . my client had been drinking, had been drinking heavily all day long, [and] he was drunk."
At trial, David, Antonio, and Cherice all testified that they saw defendant shoot Shawn. David and Cherice also testified that defendant was drinking "Sisco" (an alcoholic beverage) prior to the shooting, but that he was not drunk and "knew what he was doing." According to David and Cherice, defendant was not slurring words, nor stumbling while walking. Defendant was able to converse with everyone. Antonio also testified that defendant spoke clearly when he asked for the potato chips and did not stumble or fall.
Defendant's mother, Debra Denson, testified that she saw her son late that night and that he had been drinking Sisco. She smelled alcohol on his breath. He was stumbling around the room and not speaking properly. In her opinion, defendant was intoxicated.
Defendant testified that before going to the scene, he drank two forty-ounce bottles of beer and smoked five marijuana blunts. Then he consumed half of a bottle of Sisco after he arrived there. Although he was "tipsy," he "knew what was going on." In trying to explain what happened that evening, defendant testified that David told him to "pretend" that he was going to rob Shawn. It was to be a joke. Shawn then gave defendant twenty dollars ...