State v. Simon

• Decision Date: 11 August 1999
• Parties: STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Robert R. SIMON, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Supreme Court

737 A.2d 1

161 N.J. 416

STATE of New Jersey, Plaintiff-Respondent and Cross-Appellant, v. Robert R. SIMON, Defendant-Appellant and Cross-Respondent.

Supreme Court of New Jersey.

Argued September 29, 1998.

Decided August 11, 1999.

Marcia H. Blum, Assistant Deputy Public Defender and Paul M. Klein, Deputy Public Defender II, for defendant-appellant and cross-respondent (Ivelisse Torres, Public Defender, attorney).

Linda A. Rinaldi, Deputy Attorney General, for plaintiff-respondent and cross-appellant (Peter Verniero, Attorney General of New Jersey, attorney). The opinion of the Court was delivered by COLEMAN, J.

On October 8, 1996, defendant, Robert Simon, pled guilty to burglary, theft, unlawful possession of a firearm, possession of a weapon for an unlawful purpose, felony murder, and purposeful and knowing murder by his own conduct of Sergeant Ippolito Gonzalez, a Franklin Township police officer. A jury sentenced defendant to death. This is defendant's direct appeal from his conviction for capital murder and sentence of death. See R. 2:2-1(a)(3). We affirm all of the convictions as well as the sentence of death.

I

On May 6, 1995, defendant and Charles Staples were members of the Warlocks motorcycle gang. On that day, they burglarized the Environmental Heating building in Franklin Township, located only a few buildings away from the Franklin Township Police Headquarters. As Officer Kenneth Siderio was driving to the police station to work the 11:00 p.m. shift that night, he observed a vehicle parked in front of the Environmental Heating building. Officer Siderio noticed a man dressed in black, later identified as defendant, emerge from the loading dock area and lean into the passenger side window of the parked vehicle as if he was talking to someone. When Officer Siderio passed the parked vehicle, he observed another man, later identified as Staples, sitting in the front seat. Suspecting that a burglary was in progress, Officer Siderio informed Officer Kenneth Crescitelli of his suspicions when he arrived at the police station. Officer Crescitelli left to investigate.

Meanwhile, Sergeant Gonzalez, who was on patrol at the time, pulled up behind the vehicle and turned on his patrol car's flashing lights. Apparently because his patrol vehicle was not equipped with a mobile data terminal, Sergeant Gonzalez called into headquarters at 10:29 p.m. to report the stop and to request a look-up of the vehicle's plate number. He was informed that the car was registered to Charles Staples. When Officer Crescitelli pulled out of the police headquarters' parking lot, he observed Sergeant Gonzalez standing on the driver's side of the vehicle with some papers in his hand talking to the driver. Deciding that nothing looked unusual, he returned to the police station. However, about four minutes after Officer Crescitelli returned to the police station, Sergeant Gonzalez requested backup.

Both Officer William Clay, who had also observed Sergeant Gonzalez at the window of the parked vehicle, and Officer Crescitelli responded to Sergeant Gonzalez's request. Before they could reach the scene, however, each of them heard a gunshot. Other witnesses heard a total of two gunshots about ten seconds apart. Officer Clay, being the first to arrive at the scene, observed Staples drive his vehicle from the scene. When Officer Crescitelli drove up, Officer Clay instructed him to pursue Staples and radioed for other units to join the pursuit. Soon thereafter, Staples lost control of his vehicle and slammed into a guardrail. Defendant exited the vehicle from the passenger side, pointed his gun toward Officer Crescitelli, and ran. Officer Crescitelli yelled at defendant to stop; when defendant failed to heed the warning, Officer Crescitelli fired three shots at him. One of the shots struck defendant in the leg. Defendant flipped over the guardrail and yelled, "I give up. I'm shot." Both defendant and Staples were arrested at that point.

Automobile insurance and registration cards were found in the vehicle with a bullet hole through them. Defendant's Social Security Card and Staples' driver's license were found underneath Sergeant Gonzalez's leg with a bullet hole through them. An expert testified that the hole in the insurance card was made by a gun fired from a distance of 20 to 40 inches. The police found coins, several watches and rings, a Japanese $5 bill, and several rifles in the vehicle, all of which belonged to occupants of the Environmental Heating building.

Sergeant Gonzalez was shot twice. The medical examiner opined that the first shot passed through the right side of his neck, knocking him down, but was not fatal. The second and fatal shot entered his skull behind his right ear; the bullet lodged in his brain. A firearms expert testified that the gun found near the guardrail where defendant was apprehended was the murder weapon.

On August 3, 1995, a Gloucester County Grand Jury indicted defendant and co-defendant Charles Staples on the following charges: purposeful and knowing murder, each by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) and (2) (counts one and two); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count three); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count four); third-degree theft, contrary to N.J.S.A. 2C:20-3 (count five); third-degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:58-4 and 39-5b (count six); and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count seven). Defendant was also charged with an additional count of second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count nine). Count eight was only against co-defendant Staples; it charged him with second-degree eluding a law enforcement officer, contrary to N.J.S.A. 2C.29-2. Because the State did not know whether defendant or Staples was the trigger-person who killed Sergeant Gonzalez, it decided to charge both of them with purposeful and knowing murder by his own conduct and require the jury to determine which one actually was the killer.

—A—

Guilty Pleas

On Monday, October 7, 1996, before the commencement of the guilt-phase trial, defendant announced to the trial court his intention to plead guilty to all of the charges against him, including the murder. Prior to giving his guilty plea, defendant stated:

About a week ago I think it was I came into the court and said I wanted to fire these guys, my attorneys, for reasons that they were incompetent and deceitful and I would not feel safe going into court with them and then the next day you told me, I think it was the next day, you told me, well, you have to take them, that's it, you're going to use these guys, even after there was a conflict of interest.

Now, to avoid all this conflict of interest and everything, I'm going to enter a plea of guilty right now and maybe it will help out my co-defendant. I don't see a reason for both of us going down the tubes.

The trial court explained to defendant that if he pled guilty, he would be giving up the presumption of innocence, the right to a trial by jury, the right to testify on his own behalf before a jury, the right to present any defenses, the right to confront and call witnesses, and the right to file any additional motions that may assist him in his defense. Defendant stated that he understood that he would be giving up each of those rights, and that he still wanted to plead guilty.

In response to defendant's preliminary statement, defense counsel informed the trial court that they were taken by surprise by defendant's desire to enter a guilty plea because each time they had discussed a potential guilty plea with him, defendant had said he intended to plead not guilty. Defense counsel believed that defendant was pressured into pleading guilty. To support that claim, defense counsel showed the trial court a newspaper article that stated that members of the Warlocks motorcycle gang were urging defendant to change his plea to guilty. Additionally, one of the members of the Warlocks gang, who was present in the courtroom the week before defendant pled guilty, was seen punching his fist into his palm. On that same day, defendant was handed a note containing the phone number of the president of the local Warlocks chapter. When defense counsel asked defendant if he had been threatened, defendant responded that he could not tell them, but that he did not have a choice and it was not his decision. Defendant also advised counsel that he would be able to try to save his own life at the penalty trial once Staples' guilt-phase trial had been concluded.

As a follow-up to defense counsel's assertion of potential threats, the trial court conducted an in-camera meeting with defendant and his counsel and asked defendant if he had been threatened. Defendant responded that no one had threatened him, and that he was entering a guilty plea of his own free will. Later, he told the trial court that part of the reason for his choice to plead guilty was that he did not want to go to trial with his attorneys. Yet when the trial judge asked if new lawyers would make a difference, defendant responded no and reasserted that he wanted to plead guilty in order to help Staples. When asked whether he saw the man punching his fist into his palm, defendant explained: "I think I may have caught a glimpse of it, yeah. He was like come on, man, do the right thing, like that. Yeah, all right. It wasn't like, you know, hey, man, you better get it right or something." The trial court also asked defendant if he would cooperate with his attorneys at the penalty phase of the trial and whether he wanted to die. Defendant responded that he was not going to commit suicide, but that he did not care if he died.

Based on defendant's statements, the court decided to proceed with the guilty plea proceedings. After defendant was administered the oath, he inform...