STATE OF NEW JERSEY v. SHAWN COIT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5616-06T45616-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN COIT, a/k/a

RABBATU OMOTUNDE ALI

Defendant-Appellant.

____________________________________________

 

Submitted April 14, 2008 - Decided

Before Judges A. A. Rodr guez and C. L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-07-03249.

Shawn Coit, appellent, pro se.

Anne Milgram, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Shawn Coit was convicted of murder, N.J.S.A. 2C:11-3(a)(1) and (2); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count two); and third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count three). The charges arise from the homicide of Rodney Shaw. Judge Marilyn Loftus sentenced defendant to thirty years without parole on the murder conviction and concurrent terms of eighteen months and four years on the other convictions. On direct appeal, defendant argued that he was denied a fair trial based on ineffective assistance of counsel, evidence errors, errors in the jury charge and errors in the jury selection process decision. We affirmed the convictions, but held that the two weapons offenses should have been merged and the separate sentence on the "lesser weapon offense" vacated. State v. Coit, No. A-5722-90 (App. Div. May 19, 1993), certif. denied, 134 N.J. 483 (1993).

Defendant filed pro se his first petition for post-conviction relief (PCR) pro se in August 1994. Designated counsel filed a brief alleging errors in the jury charge and ineffective assistance of trial counsel. In a supplemental pro se brief, defendant alleged similar errors. Judge Marilyn Loftus denied the petition. We affirmed, finding that defendant's PCR contentions were procedurally barred and that defendant had failed to establish a prima facie case of ineffective assistance of counsel. We affirmed. No. A-4737-94 (App. Div. Oct. 3, 1996), certif. denied, 148 N.J. 463 (1997).

Defendant filed a writ of habeas corpus petition with the United States District Court for New Jersey raising: ineffective assistance of counsel arguments; challenging the admission of autopsy photographs and hearsay testimony; errors in the jury selection process; and errors in the jury charge. The petition was denied by Judge Alfred M. Wolin. Coit v. Morton, No. 97-CV-4485 (D.N.J. September 8, 1998), aff'd 211 F.3d 1261 (3d Cir. 2000), cert. denied, 531 U.S. 860, 121 S. Ct. 146, 148 L. Ed. 2d 96 (2000).

Defendant filed his second petition for PCR in August 2003, using the name Rabbatu Omotunde Ali. He raised issues again about errors in the jury selection process, errors in the jury charge, and ineffective assistance of counsel. The second petition was denied on December 7, 2004 by Judge Michael J. Nelson. Defendant appealed. We granted the State's motion for summary disposition and dismissed the appeal because "defendant's appeal was out of time and there is no basis to relax Rule 3:22-12." A-2076-04 (App. Div. Sept. 8, 2005), certif. denied, 186 N.J. 242 (2006).

Defendant filed the instant petition, his third, again alleging that the court erred in charging the jury that "the charge of murder can be inferred from the fact of homicide itself, and from the fact of use of a weapon." Although defendant conceded that this issue was raised in his first petition, he contended that his petition is not barred because the issue was raised before this court's decision in State v. Chavies, 345 N.J. Super. 254 (App. Div. 2001), "which affirmed petitioner's position." Defendant's third PCR petition was summarily denied by Judge Ned M. Rosenberg on May 31, 2007.

On appeal, defendant contends:

THE PASSION PROVOCATION INSTRUCTION SHOULD HAVE NEVER BEEN GIVEN IN A TRIAL WHERE THERE WAS NO EVIDENCE OR TESTIMONY THAT DEFENDANT ACTED UNDER ADEQUATE PROVOCATION.

THE TRIAL COURT INSTRUCTED THE JURY THAT A HOMICIDAL ACT WITH A KNIFE PERMITS AN INFERENCE AS TO THE PURPOSE AND KNOWLEDGE ELEMENTS OF THE OFFENSE OF MURDER.

THE ISSUES PRESENTED ARE NOT PROCEDURALLY BARRED AND IN THAT REGARD, THE STATE'S POSITION SHOULD BE CONSIDERED WAIVED AS THEY FAILED OR REFUSED TO FILE AN OPPOSITION TO DEFENDANT'S PETITION.

We reject these arguments because they are procedurally barred.

Pursuant to R. 3:22-12(a), a "[PCR] petition to correct an illegal sentence may be filed at any time," but "[n]o other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." Defendant was sentenced in 1991. His third petition, filed more than sixteen years later, patently contravenes the five-year time limitation of R. 3:22-12(a) and, defendant has failed to demonstrate excusable neglect or exceptional circumstances warranting a relaxation of the time bar.

In addition, a PCR petition may not be based on a ground for relief that could reasonably have been raised "in any prior proceeding," unless the bar "would result in fundamental injustice" or an unconstitutional result. R. 3:22-4. If the merits of a claim were adjudicated in a prior PCR proceeding or in the appeal of a prior PCR proceeding, the adjudication bars reassertion of the same ground in subsequent petitions. R. 3:22-5.

Defendant argues that he is now entitled to relief because we held in State v. Chavies, supra, that "an instruction that the purpose or knowledge elements of the offense of murder can be inferred from fact of the homicide" and because "the passion provocation instruction should never have been given."

However, on this record, it is clear, and defendant admits, that these issues had been raised before. In fact, in his brief, defendant notes that he "raised this exact issue [regarding the jury charge on murder] on his first PCR and on appeal from that denial, as well as on petition for habeas relief and the proceedings which followed that denial." He also admits that he challenged the passion/provocation charge in his second PCR petition. Thus, prior to this application, defendant has challenged various aspects of the jury charge, including the two challenges at issue in this appeal, on at least three or four occasions. As such, defendant is barred from reasserting these same issues under R. 3:22-5.

 
If we were to address the merits, defendant's reliance on State v. Chavies is misplaced. In that case, the court reversed the defendant's murder conviction because the jury had been given "an incorrect statement of our law," "that 'a homicide in itself' would allow the jury to conclude that defendant murdered [the victim]." Id. at 267. Here, the jury was properly instructed using the model charge on murder and there was no mention of the language found in the Chavies case. Further, although defendant argues exceptional circumstances because that case was decided after his trial and appeal, defendant offered no explanation for why the issue was not raised in his second PCR petition filed in 2003, or why barring same "would result in fundamental injustice" or an unconstitutional result. Thus, defendant is also barred from raising these issues pursuant to R. 3:22-4.

Affirmed.

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A-5616-06T4

July 18, 2008