Simmons v. Arvonio
| Decision Date | 24 June 1992 |
| Docket Number | Civ. No. 86-4274. |
| Citation | 796 F. Supp. 777 |
| Parties | Lawrence SIMMONS, Petitioner, v. Patrick ARVONIO, Superintendent, East Jersey State Prison, Robert J. Del Tufo, Attorney General of the State of New Jersey, Office of the Passaic County Prosecutor and Paterson Police Department, Respondents. |
| Court | U.S. District Court — District of New Jersey |
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John Vincent Saykanic, Clifton, N.J., for petitioner.
Ronald S. Fava, Passaic County Prosecutor, Paterson, N.J., for respondents.
This is an action by petitioner, Lawrence Simmons pursuant to 28 U.S.C. § 2254 to obtain a writ of habeas corpus.
Petitioner was charged in a Passaic County Indictment, along with codefendants David Wilson1 and Donald Phillips,2 for the May 27, 1977 murder of Dr. David Doktor (N.J.S.A. 2A:113-1); murder while armed (N.J.S.A. 2A:151-5); and conspiracy to commit robbery (N.J.S.A. 2A:98-1).3 Petitioner and codefendant Phillips were charged in a separate indictment with the robbery (N.J.S.A. 2A:141-1) of a second individual a short time later on May 27, 1977. Petitioner was tried separately and convicted on all charges after an 11 day jury trial in October and November 1977.
On December 21, 1977 petitioner was sentenced to life in prison on the murder conviction; a consecutive term of nine to ten years on the murder while armed conviction; a concurrent two to three year term on the conspiracy to rob conviction; and a consecutive sentence of 12 to 15 years on the conviction for the robbery of a second individual.
Shortly after petitioner was sentenced he began the long and often frustrating process of obtaining direct appellate review of his conviction. The details attendant to Petitioner's odyssey are thoroughly discussed in my earlier opinion, wherein I granted Petitioner a conditional writ of habeas corpus. See Simmons v. Beyer, 689 F.Supp. 432 (D.N.J.1988). Thus, I will not rehash those details in this opinion. Pursuant to the conditional writ, the state was directed to either grant the Petitioner an effective appeal to the appellate courts or grant the petitioner a new trial.
On August 9, 1988 the Passaic County Prosecutor's Office filed, on behalf of Petitioner, an application for leave to appeal nunc pro tunc and for a remand to the trial court to reconstruct the record.4 The motion was granted; reconstruction of the record was completed and the certified record was filed with the Appellate Division on October 4, 1988. On November 14, 1988 I denied Petitioner's motion challenging the sufficiency of the reconstructed record. See Simmons v. Beyer, Civ. No. 86-4274 (D.N.J. 14 November 1988).5
On January 8, 1989 petitioner moved for a limited remand to the trial court in order to seek a new trial on the ground of newly discovered evidence based upon affidavits of David Wilson who recanted his testimony from the 1977 trial. A supplemental certification was submitted on January 25, 1989. On February 9, 1989 the Appellate Division granted that motion and ordered that such remand proceedings be completed within 60 days. On March 9, 1989, a motion for a new trial was filed on petitioner's behalf with the trial court. Evidentiary hearings were held before Judge Marchese on April 3 and 4, 1989. In an April 6, 1989 oral decision, the judge denied petitioner's motion for a new trial. An order to that effect was entered on April 10, 1989. Thereafter, petitioner filed an amended notice of appeal to include the denial of that motion in his appeal.
Roughly thirteen years after the conclusion of his trial, Petitioner was finally accorded appellate review of his conviction. His conviction was affirmed by the Appellate Division on or about July 13, 1990. See State v. Lawrence L. Simmons, A-6277-87T1 (App.Div.1990). Petitioner then filed a petition for certification which was denied by the New Jersey Supreme Court on or about October 22, 1990. See Order; annexed as Exhibit Da 498 to Petitioner's Appendix.
Subsequent to the exhaustion of his state remedies, Petitioner moved to reopen his petition for habeas corpus before the federal district court. Petitioner's motion was granted on November 14, 1990.
The following sequence of events, developed at trial, is meticulously set forth in the opinion of the New Jersey Appellate Division. See State v. Simmons, op. at 18-32.
Early in the morning on May 27, 1977 (approximately 1:30 a.m.), Dr. David Doktor, an elderly physician, received an emergency call requesting his attendance at Barnert Memorial Hospital. The call was placed to his home on 14th Avenue in Paterson. Upon leaving his home, Dr. Doktor was brutally beaten and robbed. He died from the blows sustained in the attack. On that same morning, George Marshall was also beaten and mugged by two individuals.
During the early morning hours of May 27, 1977 (about 1:00 a.m.), David Wilson6 returned to the home of Donald Phillips at 738 East 23rd Street, Paterson, where Wilson had been living for quite some time. Wilson testified that the petitioner and co-defendant Phillips entered the apartment together. He further testified that they "were smoking refer and drinking beer." The beer was contained in quart bottles. Wilson had known Phillips at this time for approximately four months, but had not met the petitioner prior to that night.
The three men discussed stealing a car. Petitioner allegedly stated that "he wanted to do a stickup with the car." Phillips then asked Wilson, who was allegedly adept at stealing cars, if he had any keys to General Motors cars. Allegedly, petitioner produced a General Motors automobile key and, tossing it to Wilson, asked if it could be used to steal a car. Wilson replied that it might. Petitioner then told the others that he knew of a car they could steal on 14th Avenue near 26th Street in Paterson.
Wilson accompanied Phillips downstairs to the first floor hall closet where Phillips obtained a yard-long length of auto exhaust pipe with grooves in it. When Wilson asked Phillips what the pipe was for, Phillips said it was to break the window of the car if the key didn't work. Wilson, who would be acting as the "lookout," would then "hot-wire" the car.
On the night of the murder petitioner was wearing black pants, a short sleeved light blue polo shirt and a plaid shirt-type jacket. He also had on a sleeveless yellow undershirt with brown trim, a pair of black socks and suede shoes. Phillips also had on black pants, and wore a long sleeved black shirt, white athletic socks with black and yellow stripes and a pair of white Pro-Ked sneakers with blue and red trim. Wilson was dressed in a blue and white striped sweater, a blue belt, peach pants, a brown stocking cap and tan checked hat with a small front brim. He also wore a brown bodysuit and black, heeled shoes.
At 5'2" Wilson was the shortest of the three, but appeared about 5'5" in his high heeled shoes. Phillips was six feet tall. Petitioner was about 5'6" tall and wore his hair in braids on the night he was arrested.
At about 1:30 a.m., the three individuals allegedly left the house, and walked down East 23rd street to 14th Avenue where they headed easterly towards 26th street and the car petitioner suggested they could steal. As they walked down 14th Avenue, Phillips carried the pipe and a quart bottle of beer. While Phillips stopped and waited for petitioner, who had lagged behind, Wilson continued walking, and upon reaching 26th street turned and saw the petitioner, now about a block behind, place the beer bottle in the middle of 14th Avenue about 10 to 15 feet from the sidewalk.
Wilson crossed the 26th Street intersection and, while intending to wait for the other two individuals to catch up with him, was frightened by the headlights of a car driven by Mrs. Garcia. Wilson hid in the bushes about 100 feet from the corner and watched Mrs. Garcia park on 14th Avenue near the corner of 27th Street and exit her vehicle. After parking her car, Mrs. Garcia started toward her house and then went back to the car where she had left her house key. After retrieving her key, she went into her house. Emerging from the shrubs, Wilson stood and watched Phillips and the petitioner cross 26th Street. Wilson then started walking up 14th Avenue. Eventually, Phillips and the petitioner caught up with Wilson at the intersection of 27th Street. As the two men approached him, walking side-by-side, Wilson saw that Phillips was still carrying the pipe.
Mrs. Garcia lived in the house on the corner of 26th Street and 14th Avenue. As she stood on her front porch, which faced 26th Street, and opened her front door, she saw a black man near the corner walking on 26th Street in front of her house as if he were "looking for something." She got a glimpse of the side of this man's face and observed that he had puffy cheeks and "well, like braids or something on the head." She went inside and later peered out of her kitchen window, which overlooked 14th Avenue, and saw two black men dressed in dark clothing walking on her side of 14th Avenue towards 27th Street. She testified "they were walking, had something in their hand, like a stick or something, between both men." After she lost sight of the individuals, Garcia went outside to the edge of her porch, fearful that someone was looking into her car, looked up 14th Avenue, saw movement in the distance and then went inside.
As the petitioner, Phillips and Wilson gathered at the intersection, about to make a right turn onto 27th Street, petitioner allegedly pointed to an old car, parked on 14th Avenue near the intersection and said, "there goes a car we can steal." The three men walked down 14th Avenue towards the car which was parked in front of a new vehicle. Wilson stopped near a driveway, about 20 feet from the newer car, as petitioner and Phillips stood behind the intended vehicle.
Meanwhile, during those early morning hours of May 27, 1977,...
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