STATE OF NEW JERSEY v. JAMAINE GRISSOM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0349-07T40349-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAINE GRISSOM,

Defendant-Appellant.

___________________________________

 

Submitted November 10, 2008 - Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-04-1585.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his post-conviction relief (PCR) petition grounded primarily on his claim of ineffective assistance of trial and appellate counsel. We affirm.

On January 26, 1996, a jury convicted defendant Jamaine Grissom of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a (count one); first-degree murder, N.J.S.A. 2C:11-3a (count two); third-degree possession of a handgun without the requisite permit, contrary to N.J.S.A. 2C:39-5b (count three); and second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count four). At sentencing, the trial judge merged counts one and four with count two and sentenced defendant to a thirty-year term of imprisonment with a thirty-year period of parole ineligibility, and to a concurrent five-year term of imprisonment on count three. The judge also imposed the appropriate assessments and fees.

Defendant's conviction stems from the January 3, 1995 murder of Donny Ledbetter, the boyfriend of defendant's ex-girlfriend, Vonetta Wallace. Wallace dated defendant and Ledbetter at the same time; however, she denied her relationship with Ledbetter. Disbelieving Wallace, defendant became frustrated and emotionally distraught over her relationship with Ledbetter.

At approximately 7:00 a.m. on January 3, 1995, defendant called Wallace and threatened to harm Ledbetter and to commit suicide. Shortly after the call, defendant appeared on Wallace's doorstep and told her "whatever happens, it's your fault." He then left a note on her car that said "I hate you and you're to blame for what happens."

At approximately 9:00 a.m. that same morning, defendant picked up his friend, Kip Washington, and the two drove around in defendant's car until defendant parked near Ledbetter's home. According to defendant, Washington got out of the car, told defendant that he was going to talk to Ledbetter, and then walked up to Ledbetter's front door. Defendant claimed that Washington shot Ledbetter. However, an eyewitness, Jennifer Bayley, testified that she saw defendant get out of the car and walk up to Ledbetter's front door. She then heard gunshots and saw defendant get back into the car on the passenger side. The car then sped away. That same day, defendant was found unconscious in his home at approximately 5:30 p.m. He had shot himself in the head with the same gun used to kill Ledbetter.

Defendant appealed his conviction and sentence. We affirmed the conviction on count three and four in a per curiam opinion, dated January 12, 1998. We reversed the conviction on counts one and two, finding a deficiency in the accomplice liability charge. Our Supreme Court denied defendant's petition for certification. State v. Grissom, 156 N.J. 381 (1998).

On November 3, 2000, a second jury convicted defendant on counts one and two. At sentencing, the trial judge again merged count one with count two and sentenced defendant to a thirty-year term of imprisonment with a thirty-year period of parole ineligibility. The judge also imposed the appropriate assessments and fines.

Defendant appealed his conviction and sentence. We affirmed in a per curiam opinion, dated October 7, 2002. The Court denied defendant's petition for certification. State v. Grissom, 175 N.J. 171 (2002). On August 16, 2006, defendant filed a PCR petition. Judge Vichness denied the petition without a hearing.

A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Ineffective assistance of counsel claims require the defendant to show: (1) "'that counsel's performance was deficient[,]'" and (2) "'that the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).

"[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). It is not enough for the petitioner "to allege simply that an injustice has transpired[.]" State v. Mitchell, 126 N.J. 565, 579 (1992). "The petitioner must be prepared 'to establish, by a preponderance of the credible evidence, that he is entitled to the requested relief.'" Ibid. (internal quotation omitted). The petitioner must allege and articulate specific facts which, if believed, would give the court an adequate basis upon which to rest its decision. Ibid.

Defendant contends that trial counsel: (1) was ineffective during the plea bargaining stage by ignoring his request to accept a plea deal; (2) failed to conduct an adequate investigation and to call essential witnesses to trial; (3) failed to request a lesser-included offense charge of conspiracy to commit aggravated assault; (4) failed to object to the admission of other crimes evidence (the murder weapon); (5) failed to argue in favor of passion/provocation manslaughter; and (6) failed to take remedial action when defendant advised him that alternate jurors had allegedly overheard defendant discussing the case with his mother .

Defendant offers nothing more than his bald allegations of trial counsel's deficiency. He presents no affidavits or certifications supporting any of his claims. Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). He presents no evidence, supported by affidavits, that the State offered a plea deal or that he accepted it, or that he raised the juror issue with trial counsel. Defendant fails to assert facts showing what an investigation would have revealed, and he fails to identify any alleged witnesses or what evidence they would have provided at trial.

Defendant also fails to show that trial counsel was ineffective for failing to request a lesser-included conspiracy to commit aggravated assault charge. There was no rational basis for that charge as it was not supported by the evidence. State v. Savage, 172 N.J. 374, 396-97 (2002); State v. Garretson, 313 N.J. Super. 348, 353 (App. Div. 1998) (citing State v. Brent, 137 N.J. 107, 114 (1994)); N.J.S.A. 2C:1-8e. Further, such a charge was directly contrary to defendant's position at trial that he was not the shooter, it could have prejudiced his chances of being acquitted of murder, and it would have forced counsel to have forsaken or altered his trial strategy. State v. Perry, 124 N.J. 128, 162-63; see also State v. Vasquez, 265 N.J. Super. 528, 549 (App. Div.), certif. denied, 134 N.J. 480 (1993).

Likewise, passion/provocation, which defendant did not present at trial, directly contradicted his defense. Nevertheless, the judge gave a passion/provocation instruction as a lesser-included offense. We found that charge proper. State v. Grissom, No. A-4875-00T4 (App. Div. October 7, 2002) (slip op. at 10).

And finally, defendant's contention that the murder weapon should not have been admitted because his retrial did not involve the weapon possession charges lacks merit. The murder weapon was relevant to proving the murder. Furthermore, the weapon was admitted for the limited purpose to prove motive, and the judge gave the jury a limiting instruction.

Based upon our careful review of the record, we discern no reason to disturb the judge's ruling. Defendant failed to establish a prima facie case of trial counsel deficiency. Accordingly, there was no ineffective assistance of appellate counsel.

Affirmed.

We decline to address defendant's claim of prosecutorial misconduct. Defendant did not raise this claim in either of his direct appeals. He is barred from doing so here. State v. Mitchell, 126 N.J. 565, 583-84 (1992) (quoting State v. Cerbo, 78 N.J. 595, 605 (1979)); R. 3:22-4. We also decline to address defendant's contentions, not raised below, that trial counsel failed to investigate or develop a diminished capacity defense. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offest Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); see also State v. Arthur, 184 N.J. 307, 327 (2005).

(continued)

(continued)

8

A-0349-07T4

February 5, 2009