STATE OF NEW JERSEY v. DEWAYNE SIMONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5015-02T45015-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

DEWAYNE SIMONS,

Defendant-Appellant.

________________________________

 

Argued October 17, 2005 - Decided

Before Judges Cuff and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Indictment

No. 95-03-0646.

Patrick T. Cronin argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney;

Mr. Cronin, of counsel, and on the brief.)

Lora B. Glick, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General of New Jersey, attorney; Ms. Glick, of counsel, and on the brief).

PER CURIAM

Defendant, Dewayne Simons, appeals from the order denying his petition for post-conviction relief (PCR). We affirm.

Tried to a jury, defendant was convicted of knowing or purposeful murder, N.J.S.A. 2C:11-3a(1)(2) (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d (count four); fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(1) (count five); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count six). At sentencing, Judge Neustadter merged count two with count one and imposed a life term with a thirty-year period of parole ineligibility. On count three, defendant received a concurrent five-year term. On counts four and five, defendant received concurrent eighteen month terms. On count six, defendant was sentenced to an eighteen month term consecutive to the term for the murder conviction. Appropriate fees and penalties were also imposed.

The facts giving rise to defendant's convictions were recounted in our earlier opinion:

On November 19, 1994 at 6:30 p.m., Tenay Thorpe and Leanne Washington, both age fifteen, returned from the Shore Mall to Pleasantville. That same night, defendant and a friend, Sam Reed, decided to go to Cedar Food Market so defendant could buy cigarettes. Before leaving his house, defendant put a sock in the waist of his pants. Three weeks prior to this, defendant had shown Sam that the sock contained a .38 caliber revolver. After buying cigarettes and acquiring a bicycle, defendant and Sam Reed proceeded down Collins Avenue.

As Tenay and Leann got off the bus in Pleasantville and began walking home, they saw defendant and Sam Reed. Defendant, identifying himself as Dwight, called them over. After Leann started walking toward defendant, Tenay reminded her that a month earlier defendant and his brothers stopped them on the street, grabbed them around the neck and pushed them up against a school gate. Leann then began walking away with Tenay. At that point, defendant told them he had a gun. Tenay responded, "ain't nobody scared of you and your gun." Defendant then rode his bike toward the girls saying, "you don't think this gun is real, do you? . . . I have two bullets for you . . . I'm going to load the gun." Leann told defendant she was not afraid of his gun. Defendant loaded the empty gun with two bullets, pointed it at Tenay's stomach from a distance of less than a foot and then raised it next to her ear. To Leann who was standing behind Tenay, defendant stated, "I'm going to shoot you." Defendant pulled the trigger and a bullet entered Leann's forehead from a distance of approximately three feet. He told Sam he did not mean to do it and the two boys rode away. The boys proceeded down a dirt road to a marshy area where defendant hid the gun.

. . . .

After police and paramedics arrived, Leann was pronounced dead at the scene.

[State v. Simons, No. A-0390-96T4 (App. Div. Feb. 8, 1999) slip op. at 2-3).]

Between conviction and sentencing, on July 3, 1996, Judge Neustadter held a hearing on a report by one juror that another juror, seated next to him, might have been sleeping during trial. The reporting juror was questioned in open court, with defendant and counsel present, and responded that he did not discuss this issue with any of the other jurors, that he was not really sure whether his fellow juror was sleeping or not, that the juror in question was a heavy-set person who also breathed heavily, and that the juror in question participated fully in the jury deliberations. The judge concluded, based on these responses, the lack of similar observations by court personnel and other trial participants, and his own perceptions during trial, that it was neither necessary nor appropriate to call in any of the other jurors, even the juror who was thought to have been sleeping. The judge reasoned:

Getting to the merits of this particular hearing, when that was brought to the Court's attention, I convened Counsel as soon as reasonably possible to discuss what, if anything, should be done by the Court in response to this information about this phone call. It seem[ed] to me then and it seems to me now appropriate to have brought Mr. Labor in here to question him under oath, in camera and explore exactly what it was that he may have known about a sleeping juror, which could, in some way, have affected the rights of the Defendant to a fair trial.

I'm not sure that there was a sufficient showing by that phone call in and of itself to do what I did, but I felt that in view of the fact that this was a murder case, and even if it was not a murder case, then it would have been appropriate to pursue it and not just ignore it, that phone call. So I did pursue it and here we are and I interrogated the juror and I am now satisfied that he may have had reason to believe that the juror was sleepy or may have dozed off. It's questionable even in the juror's mind. He said [his fellow juror's] eyes were heavy. He seemed to be breathing hard.

I can say, for the record, from my observations, I recall that that particular juror was a heavy set gentleman and that may have contributed to his heavy breathing and may have even contributed to his heavy eyes at one point in the technical expert's testimony. I can't even conclude, from what Mr. Labor said, that this particular juror was asleep or wasn't asleep. He only observed it on that one occasion when his eyes were heavy and [he] seem[ed] to be breathing hard and was unable to say that he observed it on other occasions during the trial. He never brought it to the Court's attention; that is, Mr. Labor never did. No other juror did. No Court officer did. The attorneys did not and my practice, during a trial, is to keep a watch on the jury periodically. I don't watch them, each one continuously because I'm taking notes and looking at the witness, as well, looking at Counsel. I do as much as I can to keep an eye on the jury and I must say that I did not observe any juror, including juror number . . . eight sleeping or any juror sleeping and I don't believe that there's anything further to be done by the Court.

I don't think it's appropriate or necessary to bring in juror number eight. I don't think it's appropriate or necessary based on Mr. Labor's testimony, to bring in all the other jurors and question them.

I think the Court has very carefully investigated what might have been a possible problem. I don't think there was a problem. The witness testified that the jurors were all in the discussions during deliberations; that this particular witness -- this juror number eight participated in those discussions. There was never any conversation between Mr. Labor or any other juror before, during or after the trial regarding any other jurors falling asleep.

I think that the Court has more than adequately satisfied the record and the interest of justice in making the inquiry that was made and having heard what the juror, Mr. Labor, had to say that no further jury inquiries would [be] appropriate under the circumstances.

Finding no deprivation of defendant's right to trial by jury, the court denied defendant's post-verdict motion for judgment of acquittal or, alternatively, a new trial based on the reporting juror's allegation.

We affirmed defendant's judgment of conviction in an unpublished per curiam opinion. State v. Simons, No. A-0390-96T4 (App. Div. Feb. 8, 1999). Thereafter, the Supreme Court denied defendant's petition for certification. State v. Simons, 162 N.J. 130 (1999).

On November 24, 1999, defendant filed a timely pro se PCR petition, which was subsequently withdrawn. Two years later on November 12, 2001, and beyond the five-year time bar of Rule 3:22-12, defendant again filed a pro se PCR petition, claiming that the alleged sleeping juror deprived him of his Sixth Amendment right to a fair trial by jury. In counsel's brief in support of the PCR petition, additional issues were raised, namely, (1) defendant's trial counsel was ineffective for failing to hire the appropriate experts, failing to investigate all witnesses, failing to object to a newspaper article allegedly given to the jury during their deliberations, and failing to take appropriate action when advised of the so-called sleeping juror; (2) the cumulative effect of trial counsel's errors deprived defendant of a fair trial; (3) appellate counsel was ineffective for failing to raise these issues on appeal; and (4) the five-year time bar, pursuant to Rule 3:22-12, should be relaxed in the interests of justice.

Following argument, Judge Neustadter, in a written opinion of March 13, 2003, relaxed the five-year time bar, but denied the PCR petition on the merits without an evidentiary hearing. The judge ruled that defendant failed to make a prima facie showing of ineffective assistance of counsel warranting an evidentiary hearing because his claims were based on speculation rather than competent evidence. The judge also found that, as to all claims, defendant failed to satisfy either prong of the Strickland standard, and that even if trial counsel's performance were deficient, defendant has not demonstrated that the outcome of trial would have been different. Specifically, as to whether counsel was ineffective in handling the "sleeping juror" issue, Judge Neustadter held:

Moreover, even had counsel requested that the judge interview each juror or declare a mistrial as suggested by State v. Burks, 208 N.J. Super. 595 (App. Div. 1978) and State v. Reevey, 159 N.J. Super. 130 (App. Div. 1978), there is no indication that the outcome of the trial would have been any different per Strickland. Therefore, defense counsel's assertion that "had counsel researched and properly presented the issue, it is entirely possible that the court would have seen the request as more than perfunctory and more seriously explored the situation[,]" is unsubstantiated and does not warrant further consideration.

Finding no merit to this and all other claims of defendant, Judge Neustadter concluded, therefore, that it was not ineffective for appellate counsel not to have raised them. And finally, the judge ruled that many of defendant's claims were, in fact, either previously addressed and, therefore, procedurally barred under Rule 3:22-5, or could have been raised, but were not and thereby precluded from our review under Rule 3:22-4.

On appeal now, defendant, through counsel, raises the following issues for our consideration:

I) THE TRIAL COURT ERRED IN RULING THAT DEFENDANT'S APPLICATION WAS PROCEDURALLY BARRED AS TO THE SLEEPING JUROR ISSUE.

II) THE TRIAL COURT ERRED IN RULING THAT APPELLATE COUNSEL'S PERFORMANCE WAS NOT INEFFECTIVE ON THE SLEEPING JUROR ISSUE.

III) PCR COUNSEL'S PERFORMANCE WAS INEFFECTIVE ON THE SLEEPING JUROR ISSUE.

In a supplemental brief, defendant pro se raises these additional issues:

I) A. Ineffectiveness of Trial Counsel

Trial counsel failed to interview any witnesses

Trial counsel failed to properly examine or cross-examine state's witnesses

Trial counsel failed to get statements or send an investigator to get statements from witnesses

B. Counsel's willingness to accept the government[']s version of facts

C. Counsel failed to request a psychiatric examination

D. Failed to advise defendant of his right to testify during trial

E. Improper Jury Instructions

Preliminary instructions were

not based on the nature of the case

Counsel failed to . . . proffer a written charge on voluntary manslaughter charge

Counsel failed to object to the jury instruction on intent

Counsel failed to request a missing witness jury instruction

Counsel failed to move for a continuance

II) Ineffective assistances of P.C.R. Attorney

III) Defendant's trial, by not having an impartial jury, violated his U.S. Const. Right under the Equal Protection Clause of the Fourteenth Amend[.], and the N.J. Const. Under Art I, par 5, 9, and 10.

IV) The court allowed other crime evidence that should not have been admitted

We reject defendant's argument that he was denied the effective assistance of appellate and PCR counsel. It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced him, see

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80

L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 52 (1987), namely, "that there is a reasonable probability that but for" appellate counsel's or PCR counsel's errors, defendant would have prevailed on appeal or PCR. Strickland, supra, 466 U.S. 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Russo, 333 N.J. Super. 119, 139 (App. Div. 2000). We are persuaded that the alleged deficiency here clearly fails to meet either prong of this test.

The alleged deficiency was appellate and PCR counsel's failure to raise and properly "develop" the sleeping juror issue respectively. However, this issue is inextricably intertwined with defendant's underlying Sixth Amendment claim of a denial of a right to trial by jury, which also happens to be predicated, as is his Sixth Amendment ineffective assistance of counsel claim, on the "sleeping juror" allegation. Yet, this allegation was fully investigated and litigated at the trial level and found to have been without merit, a decision in which we fully concur. Lacking any substantive merit, we are satisfied that appellate counsel's failure to raise the issue on direct appeal, and PCR counsel's alleged failure to fully "develop" the issue before the PCR court by, among other things, not ordering a transcript of the juror voir dire hearing, was neither deficient nor prejudicial. Simply put, appellate counsel is under no obligation to raise a meritless issue, State v. Rue, 175 N.J. 1, 15 (2002); and no showing has been made that PCR counsel did not render defendant reasonable assistance. Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (explaining that proof requires sufficient facts that "demonstrate counsel's alleged substandard performance"). Similarly lacking is any demonstration that the outcome would have been any different had the "sleeping juror" issue been raised on direct appeal, or had PCR counsel ordered a transcript of the July 3, 1996 voir dire hearing.

We have considered the balance of defendant's issues in light of the record, the applicable law, as well as the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We simply note, in addition, that several of the claims, such as those alleging improper jury instructions and improper "other crimes" evidence were previously adjudicated on direct appeal and may not now be considered in a PCR proceeding. R. 3:22-3; R. 3:22-5. As for those claims not raised below, but could have been, they are also procedurally barred. R. 3:22-4. Still others were not even raised in the PCR petition and are being raised for the first time on appeal. They are precluded from review now as well. R. 2:10-2. For instance, defendant argues for the first time on this appeal that his constitutional right to a trial by an impartial jury was infringed upon by the prosecutor's improper exclusion of an African-American juror during voir dire. Quite apart from the Rule 3:22-4 bar, any objection to the jury selection process, to be timely, must be brought either "during or at the end of the jury selection [process and] before the petit jury is sworn." State v. Gilmore, 103 N.J. 508, 535 (1986).

 
Affirmed.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984).

(continued)

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A-5015-02T4

October 31, 2005