STATE OF NEW JERSEY v. DUQUEE SIMMONS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2544-07T42544-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUQUEE SIMMONS,

Defendant-Appellant.

_________________________________________________

 

Submitted February 25, 2009 - Decided

Before Judges Payne and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

06-10-3168.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jay L. Wilensky,

Assistant Deputy Public Defender, of

counsel and on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Brandon D.

Minde, Essex County Assistant Prosecutor,

on the brief).

PER CURIAM

Defendant, Duquee Simmons, indicted for murder, was convicted of the lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-5c, and second-degree possession of a shotgun for an unlawful purpose, N.J.S.A. 2C:39-4a. A motion for a new trial was denied. Defendant was sentenced to twenty-two years of imprisonment on the aggravated manslaughter conviction, subject to the eighty-five percent parole ineligibility period mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent four-year prison term for unlawful possession of the shotgun. The conviction for possession of a shotgun for an unlawful purpose was merged into the aggravated manslaughter conviction. Aggravating factors 3 (risk of future offense), 6 (extent of prior criminal record) and 9 (need for deterrence) supported the sentence. N.J.S.A. 2C:44-1a(3), (6) and (9).

On appeal, defendant raises the following arguments:

POINT I

THE CONVICTION WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE, NECESSITATING REVERSAL.

POINT II

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

We affirm.

The record discloses that on the afternoon of January 17, 2006, Eddie Chavis and Harvey Garvin were selling marijuana on 13th Street in Newark. While there, Chavis witnessed defendant shoot Garvin in the leg with a shotgun at close range. At the time of the shooting Chavis had known defendant for approximately seven or eight years. Upon being shot, Garvin said to Chavis: "Shit I don't believe he just I don't believe this mother fucker just shot me." As Garvin limped away, he said additionally: "I don't believe Duquee just shot me."

Shahada Smith, a resident of a nearby apartment who knew defendant, Garvin and Chavis, heard the shot but did not witness the shooting. However, she testified at trial that, while Garvin was making his way to the porch of Smith's building, she heard Garvin say "call the ambulance, Duquee just shot me." Smith called 911 and was instructed by the operator to attempt to staunch the flow of blood, which she sought to do by applying pressure with the use of towels. However, Garvin soon lapsed into unconsciousness and later died of blood loss from a severed femoral artery.

In support of his argument on appeal that the verdict was against the weight of the evidence, necessitating a new trial, defendant argues that:

The evidence inculpating the defendant in this case consisted, in its entirety, of the testimony of two witnesses, only one of whom claimed to have witnessed the actual shooting, and who both testified as to the victim's purported identification of the defendant as the shooter immediately after he was shot. And, the defendant submits, as he did before the trial court, that each of these witnesses was so inherently unbelievable that to rest a conviction upon their testimony constitutes an "obvious jury error."

In support of his position, defendant notes that Chavis had a criminal record, that he had been selling drugs with Garvin until Garvin was shot and, contrary to the police's instruction that he remain in the vicinity of Smith's porch for questioning, Chavis fled the scene. Defendant also noted that on February 1, 2006, the police came to Chavis's house, and Chavis gave a statement to them. In that statement, Chavis mentioned that a red Jeep had pulled up next to Garvin. However, he stated that he did not know who was in the jeep, and he did not mention that he had witnessed the shooting, stating only that he heard the shot. Chavis did not speak to the police or prosecutors further until he was jailed for failure to pay child support, in or around June 8, 2007. At that time, Chavis admitted to having seen the shooting and he identified defendant as the shooter. However, he declined to give a statement and he declined to sign the back of a photograph of defendant that was shown to him by the prosecutor. It was only after Chavis fulfilled his support obligations and was released from jail that he admitted to the prosecutor, on June 11, 2007, that he had seen Duquee initially point his shotgun at the upper part of Garvin's body, lower it to his thigh area, and then shoot. Additionally, at that time, he identified a photograph of Duquee as the shooter.

With respect to Smith, defendant notes that in her first statement on January 17, 2006, the day of the crime, she did not mention Chavis, whom she had known for three to four years as a relative of her son's father; she did not disclose the circumstances surrounding Garvin's shooting; and she did not reveal the fact that Garvin claimed to have been shot by Duquee. She did so only in a second statement given two months later on March 16, 2006. At that time, she mentioned Garvin's statement incriminating Duquee, and she identified photographs of both Duquee and Chavis. However, on cross-examination she admitted that she had contacted the police only after learning that they were looking for her. Further, at trial, Smith was reluctant to state whether Chavis was selling drugs with Garvin, stating that she really did not know whether Chavis was doing so.

Defendant also claims a contradiction between a statement by Chavis that he did not discuss the incident with Smith and a statement by Smith that she had spoken to Chavis in the days following the shooting. However, Smith did not specify the nature of their conversation.

These same arguments were made to the trial judge in connection with defendant's motion for a new trial. In rejecting defendant's position, the trial judge stated:

In the Court's view, these very discrepancies, these very issues that bear upon credibility . . . consumed almost . . . the entire trial and were duly considered by a jury and rejected. I don't find that it clearly and convincingly appears that there was a manifest denial of justice in the law when you distill all the information and you give due regard to the opportunity of the jury to pass upon the credibility of the witnesses.

You have, A, an eyewitness; and, B, you have a witness upstairs hearing the shotgun blast and then hearing a dying declaration, indicating that the defendant had shot the victim. You have a description by the eyewitness of a type of death that is entirely consistent with the type of wound that the decedent suffered, a massive shotgun blast from short range to the left thigh area. That's entirely consistent with the wound that was the subject of testimony at the time of the trial, and so you have stories that meet almost, or dovetail almost exactly with the physical evidence in the case.

Given that, this court cannot state clearly and convincingly that there was a manifest denial of justice under the law and, therefore, the motion for a new trial and/or a judgment of acquittal is denied.

I want to advert to the one case, State vs. Feaster at 156 New Jersey 1, 1998 wherein the Court notes: "It is exclusively within the province of the jury to find fact and evaluate witness credibility." That's at page 81, and that's what the jury did in this case, and the court sees no reason to upset that.

We agree with the trial judge that grounds for granting a new trial pursuant to Rule 3:20-1 were not demonstrated by defendant in this case. See Dolson v. Anastasia, 55 N.J. 1, 7 (1969). Both defendant's new trial motion and his arguments on appeal are premised solely upon claims that the State's two fact witnesses, Chavez and Smith, were not credible. However, the jury's credibility determinations are ones to which we must accord deference. Ibid. See also State v. Feaster, 156 N.J. 1, 81 (1998); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997); State v. Conway, 193 N.J. Super. 133, 151 (App. Div.), certif. denied, 97 N.J. 650 (1984).

Moreover, as the trial judge noted, the descriptions of the incident provided by the two witnesses at trial were essentially consistent. Defendant's attack on their credibility was principally based upon their initial reluctance to describe what had occurred to the police. But both Chavis and Smith gave reasonable explanations for their initial inaccurate statements. Both testified that they knew defendant well and thus they had a motive for initially protecting him by omitting mention of his involvement in the crime, while eventually identifying him as the person who shot Garvin, whom Chavis and Smith also knew well. Further, Chavis's determination not to remain for police questioning on the day of the incident must be viewed in light of the fact that, at the time, he was carrying on his person his recently replenished stash of marijuana. Defendant also overemphasizes testimony by Chavis and Smith regarding their contacts after the shooting, since neither admitted to discussing the crime with the other and both denied any effort by Chavis to restrain Smith from giving his name to the police.

Because the trial judge was faced with determining whether to set aside the jury's verdict, his task was limited to "canvass[ing] the record, not to balanc[ing] the persuasiveness of the evidence on one side as against the other," in order "to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict." Id. at 6 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). That record contained (1) testimony by an eyewitness to the shooting; (2) two dying declarations identifying defendant as the shooter; and (3) an autopsy report indicating that decedent's death occurred in a manner consistent with that described by the eyewitness. In these circumstances it is clear that the jury's verdict was not "a manifest denial of justice under the law." R. 3:20-1. Consequently, defendant's conviction is affirmed.

 
Defendant also challenges his sentence of twenty-two years of imprisonment, subject to the eighty-five percent parole disqualifier of NERA as excessive. We disagree, noting that defendant's sentence was eight years below the top of the sentencing range of 30 years. N.J.S.A. 2C:11-4c. As such, it was properly based upon defendant's prior criminal history and the circumstances of the crime, including the fact that the victim was shot at close range. We are therefore satisfied that the sentence is not manifestly excessive or unduly punitive, and we conclude that its imposition does not constitute an abuse of the trial court's discretion. State v. O'Donnell, 117 N.J. 210, 219-20 (1989); State v. Ghertler, 114 N.J. 383, 389-93 (1989); State v. Roth, 95 N.J. 334, 356-66 (1984).

Affirmed.

Defendant argues that the judge's characterization of the crime as "the nearest thing to an assassination that you could possible get" was incorrect in light of the fact that defendant initially aimed at Garvin's head, then lowered his weapon to shoot Garvin in the leg. While defendant is correct that an extremity such as a leg contains less vital organs than the head or trunk, defendant does not take into account the likely effect of a shotgun blast at such close range.

(continued)

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A-2544-07T4

June 9, 2009