On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 91-04-0998.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Espinosa.
Defendant Eric V. Lomax appeals from an order of the Law Division denying his second petition for post-conviction relief (PCR). We affirm.
A jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count one), and third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two). On March 19, 1993, after merging count two into count one, the judge sentenced defendant to a term of life imprisonment, with a thirty-year period of parole ineligibility.
The convictions stem from the murder of defendant's live-in girlfriend, Marine Corporal Wendy Vaughns, at her Cherry Hill apartment complex in the early morning hours of October 16, 1990. We reproduce the pertinent facts as set forth in our decision on the direct appeal.
On October 16, 1990, Wendy [Vaughns], a Marine Corp[s] corporal, was found dead in her Cherry Hill apartment, the victim of twenty-six stab wounds in the area of her heart and neck. Her throat had been slashed and there was a knife handle embedded in her chest. Defendant, a Navy petty officer, and the victim had been living together in the apartment. Defendant was a married man. On the evening of October 15, 1990, defendant, his wife, and the victim spent several hours together in the apartment arguing about their relationship. After the wife left, the victim and defendant continued to argue. Defendant testified he left the apartment after the victim had twice attacked him with a knife and that she was alive the last time he saw her.
The evidence of defendant's guilt was overwhelming. Numerous witnesses testified during the trial that they heard banging and screaming in the early morning hours of October 16, 1990. One witness identified defendant by his voice as being present in the apartment at or about the time the screams were heard. A neighbor testified that he saw a black male leaving the apartment at about the same time and drive away in the victim's white Honda. The record reflects defendant was involved in an accident while driving the victim's vehicle on the [Pennsylvania] Turnpike later that morning and was hospitalized.
DNA testing was performed and the record discloses the blood on the knife and various items of clothing matched known blood samples from both the victim and defendant.
[State v. Lomax, A-5277-92T4 (App. Div. Apr. 4, 1995) (slip op. at 2-3).] Defendant's theory of the case was that someone else committed the murder.
We affirmed the judgment of conviction. Ibid. The Supreme Court denied defendant's petition for certification. State v. Lomax, 142 N.J. 456 (1995).
Defendant filed a timely PCR petition on March 8, 1996, alleging, among other things, that the language of the indictment failed to charge purposeful murder separately from knowing murder; the jury was not properly charged on passion- provocation manslaughter; the verdict sheet was improperly drafted, creating the necessity for "sequential deliberation"; he was denied a speedy trial; and he was denied the effective assistance of counsel. Defendant also claimed newly-discovered evidence. The PCR judge conducted an evidentiary hearing on April 25, 1997, at which defendant's trial counsel testified concerning his investigative efforts, his rationale for filing or not filing various motions and his recollection of the reasons for various continuances granted in the months prior to trial. At the conclusion of the hearing, the court denied defendant's PCR application, finding, among other things, that the passion-provocation manslaughter charge, to which no objection was voiced, was properly molded to the evidence in this case; that the verdict sheet afforded the jury all possible verdict options; and that counsel's performance was neither deficient nor prejudicial.
On appeal from that denial, we remanded for a hearing for the limited purpose of supplementing the record with the testimony of the attorney then representing Charles E. Reddish, Jr. for capital murder, who had earlier refused to allow his client to testify on defendant's behalf in any criminal matter. At the remand hearing on August 14, 1998, Reddish's former counsel testified that his position had not changed, and although he no longer represented Reddish, it was his understanding that Reddish's present counsel also shared the view that Reddish should not testify or be interviewed on defendant's behalf. Having found nothing presented in the remand proceeding to have altered his decision in any way, the judge once again denied defendant's ...