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State of New Jersey v. Jimmy Mcdougal

July 8, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JIMMY MCDOUGAL,*FN1 DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-04-1554.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 12, 2011 - Before Judges Yannotti and Espinosa.

Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. For the reasons that follow, we affirm.

Defendant was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). He was sentenced to an aggregate term of life imprisonment with a thirty-year period of parole ineligibility on October 3, 1990.

We reversed defendant's conviction in an unpublished opinion, State v. McDougald, No. A-1421-90 (App. Div. Mar. 5, 1992). The facts relating to the underlying offense are set forth in our opinion and need not be repeated here. Defendant was convicted of the same charges in a second trial and the same sentence was imposed. We affirmed his convictions and sentence in an unpublished opinion, State v. McDougal, No. A-2627-92 (App. Div. Oct. 13, 1994). The Supreme Court denied his petition for certification, 142 N.J. 448 (1995).

Defendant filed a pro se PCR petition on or about September 27, 1996, in which he argued he was denied the effective assistance of counsel and that the State failed to provide defendant with information regarding a possible alibi.

An amended petition was submitted on behalf of defendant in February 1997. In this amended petition, defendant additionally claimed that counsel was ineffective for failing to develop certain evidence, failing to subpoena a certain witness, and failing to cross-examine certain witnesses effectively. Defendant also raised several issues regarding the admission and exclusion of evidence.

The PCR court denied defendant's petition by order dated July 20, 1998, accompanied by an extensive written opinion setting forth its reasons. Defendant appealed the denial, raising new claims of ineffective assistance of trial counsel, as well as claims of ineffective assistance of counsel and denial of his due process rights at the PCR hearing. We remanded the matter in an unpublished opinion, State v. McDougle, No. A-457-98 (App. Div. Mar. 21, 2000). The trial court held another evidentiary hearing at which defendant testified and denied defendant's PCR petition by order dated August 21, 2008. Defendant now appeals from that denial and presents the following issues for our consideration.

POINT I

THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

A. TRIAL, APPELLATE AND POST-CONVICTION RELIEF COUNSELS RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE WHEN THEY FAILED TO CHALLENGE THE TRIAL COURT'S ERRONEOUS OMISSION OF CRITICAL JURY INSTRUCTIONS

1. THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE A PRIOR INCONSISTENT STATEMENT CHARGE BECAUSE TRIAL COUNSEL RELIED ON MAURICE ANDREWS' PRIOR INCONSISTENT STATEMENT AS SUBSTANTIVE EVIDENCE

2. THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE AN IDENTIFICATION CHARGE BECAUSE IDENTIFICATION ...


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