On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 84-05-0320.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
Defendant Vernon L. Simmons appeals from an order entered by the Law Division on January 6, 2010, which denied his fourth petition for post conviction relief (PCR). We affirm.
Defendant was charged under Burlington County Indictment No. 84-05-0320, with first-degree murder in violation of N.J.S.A. 2C:11-3(a)(1) (purposely causing death or serious bodily injury resulting in death) (count one); first-degree murder in violation of N.J.S.A. 2C:11-3(a)(2) (knowingly causing death or serious bodily injury resulting in death) (count two); second-degree possession of a weapon (a firearm) for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (count three); and third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (count four).
Defendant was tried before a jury. At the trial, the State presented evidence which established that, on March 13, 1984, a man approached a parked car and smashed the window in order to get at the occupant, Herman Bracey (Bracey). Bracey exited the car and the man, who was positively identified as defendant, shot him at least four times. Bracey was taken to a hospital and placed on a respirator. Nine days later, he was determined to be brain dead and the respirator was removed. The cause of his death was a gunshot wound to his head.
The jury found defendant guilty on counts one, two and four. On February 22, 1985, the court sentenced defendant to concurrent terms of life imprisonment, with a thirty-year period of parole ineligibility, on counts one and two; and a concurrent five-year term on count four. A judgment of conviction was entered that day.
Defendant appealed and argued that the trial court erred by denying his motion for a judgment of acquittal because the removal of the victim's respirator was allegedly a superseding cause of death. Defendant also argued that the court's jury charge on intervening causation was flawed. Defendant additionally argued that the conviction on count two should be merged with the conviction on count one.
We rejected these arguments and affirmed defendant's convictions, noting that "[t]here was clearly sufficient credible evidence in the record for a finding beyond a reasonable doubt that the victim was dead prior to the cessation of life-sustaining efforts." However, we merged the murder convictions and vacated the sentence imposed on count two. State v. Simmons, No. 3370-84 (App. Div. Jan. 23, 1987) (slip op. at 4). The Supreme Court denied defendant's petition for certification. State v. Simmons, 107 N.J. 628 (1987).
Thereafter, defendant filed his first PCR petition, in which he alleged that he had been denied the effective assistance of counsel because his trial attorney failed to raise the issue of intervening causation and failed to recall certain witnesses. The PCR court denied the petition on March 13, 1988, and defendant appealed.
We affirmed the denial of PCR, stating that defendant's appeal was simply "a reargument of issues concerning the cessation of medical treatment of the victim," which were matters we had thoroughly considered in defendant's direct appeal. State v. Simmons, No. A-3914-87 (App. Div. Apr. 10, 1989) (slip op. at 2). The Supreme Court denied defendant's petition for certification. State v. Simmons, 117 N.J. 158 (1989).
Several years later, defendant filed a second PCR petition. He claimed that the trial court erred by: admitting certain evidence; denying his motion for a mistrial, and denying a motion to suppress. The PCR court denied the petition. Defendant appealed, and we affirmed, noting that the issues raised by defendant in his PCR petition were barred by Rule 3:22-4 and otherwise without merit. State v. Simmons, No. A-4107-89 (App. Div. Nov. 4, 1992) (slip op. at 2-3). The Supreme Court denied defendant's petition for certification. State v. Simmons, 137 N.J. 313 (1994).
Thereafter, defendant filed a third petition for PCR, in which he alleged that the trial court erred by allowing certain arguments, and the issue of the removal of the respirator should have been presented to the court. He further claimed that the court ...