STATE OF NEW JERSEY v. MICHAEL GRANT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6537-06T46537-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL GRANT,

Defendant-Appellant.

___________________________________

 

Submitted November 17, 2008 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-02-0459.

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 (Luanh L. Lloyd, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal from the Law Division's denial of defendant Michael Grant's second petition for post-conviction relief ("PCR"). We affirm.

After a 1990 jury trial, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four) and third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count five). He was sentenced to a thirty-year prison term, plus various fines and penalties.

We sustained defendant's convictions on direct appeal in 1991. See State v. Grant, No. A-6482-89T4 (App. Div. July 5, 1991). Certification was denied by the Supreme Court that same year. 127 N.J. 549 (1991). His first PCR petition was denied by the Law Division in 1995 and we affirmed that disposition. See State v. Grant, No. A-985-95T4 (App. Div. Oct. 24, 1996). The Supreme Court again denied certification. 148 N.J. 461 (1997). Defendant's second PCR application was denied by the Law Division in an order of June 6, 2007, from which defendant now seeks review. The judge who ruled on this most recent application ("the PCR judge") held that defendant's petition was procedurally barred under Rule 3:22-4 and Rule 3:22-12, and also was substantively without merit.

We will not repeat at length the proofs at trial, which have already been described in our 1991 and 1996 opinions. For purposes of the present appeal, we summarize the facts as follows.

On November 25, 1989, Ronald Williams and the victim, Robert King, were selling drugs in the area of 82 Chadwick Avenue in Newark. At about seven o'clock that evening, a car pulled up. A man wearing a red coat got out of the car. He approached Williams and King, stating that someone had "beat his sister for some drugs." Williams stated that the man in the red jacket was defendant, who he recognized because the two had been in County Jail together eight months earlier.

Williams testified that while he stood at the corner, Janice Young came up to him. She told Williams that King was "getting stuck up." Williams then turned around. He saw King with his hands up while defendant patted him down. It appeared to Williams, who was about thirty feet away, that defendant was robbing King. After defendant finished patting King down, King lowered his hands. Williams then heard a gun shot.

Cynthia Green, who had been in the area to purchase drugs, testified that she saw King counting money before defendant arrived. Green stated that she knew defendant from around the neighborhood. She observed defendant, who was wearing a red jacket, approach King and tell him someone had "[b]eat [his] sister." According to Green, some "tussling" ensued between King and defendant, which resulted in a push and King backing up. King was then shot. Defendant quickly walked back to his car and left the scene. King died from his gunshot wounds.

Green further recalled that King dropped the wad of money that he had been counting before the tussling. Although Green never saw defendant pick up the wad of money or King put his hands above his head, she likewise believed she had witnessed a robbery.

Williams identified defendant as the shooter, first in a photo array at the homicide squad, and then subsequently at trial. Green similarly picked out two photographs of defendant for the police and also identified him in court.

Defendant's ex-girlfriend and uncle each testified that defendant owned the red coat worn by the man who killed King. An investigating police officer testified that defendant admitted to owning a red coat but claimed that he did not know where it was.

Defendant testified at trial in his own behalf. He denied being present at the time of the shooting or ever being at 82 Chadwick Avenue. By way of an alibi, defendant contended that he was at home the entire day of November 25, 1989. Defendant also claimed that he had never seen Williams or Green before.

After hearing the court's instructions on the law, the jurors briefly deliberated in the afternoon for forty-five minutes. They resumed deliberations the following morning, and shortly thereafter returned a verdict, finding defendant guilty of all counts of the indictment.

On his present appeal, defendant raises the following points:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A) TRIAL COUNSEL FAILED TO OBJECT TO THE TRIAL COURT'S ERRONEOUS FAILURE TO CHARGE THE LESSER-INCLUDED OFFENSE OF THEFT

B) TRIAL COUNSEL FAILED TO OBJECT TO THE TRIAL COURT'S ERRONEOUS FAILURE TO CHARGE PASSION PROVOCATION MANSLAUGHTER

C) TRIAL COUNSEL FAILED TO OBJECT TO THE TRIAL COURT'S ERRONEOUS FAILURE TO CHARGE THE JURY ON ATTEMPT

D) TRIAL COUNSEL FAILED TO OBJECT TO INADMISSIBLE HEARSAY

E) TRIAL COUNSEL FAILED TO PRESENT A DIMINISHED CAPACITY DEFENSE

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

POINT III

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE FIRST PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL

POINT V

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

POINT VI

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4

POINT VII

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS

Preliminarily, we observe that we do not need to address the PCR judge's finding that defendant's arguments are time-barred under Rule 3:22-12 or are otherwise procedurally defective under Rule 3:22-4 because they could have been raised in earlier proceedings. Instead, we consider defendant's arguments on their merits, all of which hinge upon assertions that his successive counsel in this matter have been ineffective. Having done so, we are satisfied that none of his claims are well-grounded in the law or the trial record.

In evaluating defendant's various claims of ineffectiveness, we are guided by familiar legal principles. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Allegro, 193 N.J. 352, 365-69 (2008).

We now turn to the specifics of defendant's ineffectiveness claims.

I.

Defendant contends that his trial counsel was ineffective in failing to object to certain aspects of the jury instructions. He first complains in this regard that his counsel should have insisted that the instructions include a charge of simple theft.

The PCR judge determined that the evidence in this case supported a charge of robbery, not simple theft. The judge rejected defendant's contention that this offense was simply an "afterthought theft," instead finding that this was "a theft with a [pre-meditated]] purpose expressed by the defendant according to the evidence, and the only evidence on this issue, and it doesn't appear to be any rational basis for a lesser[-] included theft charge[.]" Consequently, the PCR judge found that since the evidence did not provide a rational basis to support a charge of theft, trial counsel was not ineffective by failing to request that instruction. We agree with the judge's analysis.

"A person is guilty of robbery if, in the course of committing a theft, he: (1) inflicts bodily injury or uses force upon another; or (2) threatens another with or purposely puts him in fear of immediate bodily injury . . . [.]" N.J.S.A. 2C:15-1(a)(1), (2). Any act that occurs "in an attempt to commit theft or in immediate flight after the attempt or commission" is considered to be "in the course of committing a theft." N.J.S.A. 2C:15-1(a). "[T]he intimidating or assaultive conduct that elevates theft to robbery must occur 'during the theft or attempted theft or in immediate flight therefrom,' [so] it follows that intimidating or assaultive conduct that is unrelated to a theft cannot elevate the theft to robbery." State v. Lopez, 187 N.J. 91, 98 (2006) (quoting State v. Farrad, 164 N.J. 247, 259 (2000)).

Here, there is no rational basis in the evidence to support the offense of simple theft. We agree with the PCR judge that this was not an "afterthought" attempt to take property from the victim, as defendant submits. When defendant encountered King, he made his intentions known by announcing that someone had "beat" his sister, and that he wanted the money back. This manifest intention was corroborated by two separate eyewitnesses who testified that they saw defendant rob King, and then heard a gunshot. Defendant identifies no trial proof to support the theory that he confronted King solely "to exact some physical retribution" for endangering his sister with bad drugs.

The only rational inference one can draw from the record is that defendant confronted King in a forcible effort to get his sister's money back, and that he used a gun to facilitate that objective. A lesser charge of simple theft was not "clearly indicated" by the proofs. State v. Jenkins, 178 N.J. 347, 361 (2004) (requiring the jury to be charged with the elements of lesser-included offenses only where they are "clearly indicated" by the trial proofs); State v. Choice, 98 N.J. 295, 299 (1985) (same). Thus, trial counsel was not ineffective in failing to request such an instruction.

Defendant next claims that his trial counsel was ineffective in failing to object to the jury charge because it did not include an instruction on passion/provocation manslaughter. As the PCR judge found, this argument is equally unmeritorious.

The judge found that, at best, the trial evidence showed that defendant's sister was "in some manner deceived by bad drugs or non-drugs in return for money." The judge concluded that somebody being "beaten" in a financial transaction does not warrant a passion/provocation charge with respect to a homicide precipitated by that disappointing transaction.

A criminal homicide is a murder when the actor purposely or knowingly causes death or serious bodily injury resulting in death. N.J.S.A. 2C:11-3(a)(1), (2). By comparison, a criminal homicide is manslaughter when "a homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). Passion/provocation manslaughter "has four elements: the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). For provocation to be adequate, it "must be 'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" State v. Taylor, 350 N.J. Super. 20, 39 (App. Div.) (quoting State v. Robinson, 136 N.J. 476, 491 (1994)), certif. denied, 174 N.J. 190 (2002).

In this case, there is no rational basis in the evidence to support a charge of passion/provocation manslaughter. Nothing in the proofs reasonably supports a theory that defendant was provoked by passion to take King's life. Defendant contends that "King argued with [defendant] instead of apologizing and offering to replace the bad drugs," and thereby enraged him. That speculation is not supported by the evidence. There was no testimony that King argued with defendant. In fact, the testimony showed that defendant confronted King to rob him, not to argue with him.

We also note that the trial judge did charge the jury with both the lesser-included offenses of reckless manslaughter and aggravated manslaughter, which the jury rejected in favor of a murder conviction.

Most importantly, trial counsel cannot be deemed ineffective for failing to request a jury charge that would have run against his client's main defense. A passion/provocation manslaughter charge rests on a defendant committing the actions, but not having the required mental state to be convicted of the more serious crime of murder. Such a theory would have been in direct contradiction to defendant's testimony that he was at home the entire day on November 25, 1989. In sum, trial counsel was not ineffective in this respect.

Additionally, defendant claims that his trial counsel was ineffective in failing to object to the jury charge because it omitted a charge of attempted robbery. This claim is also unavailing.

In rejecting this argument, the PCR judge found that the facts in this case did not show "an attempt that did not come to fruition[.]" Instead, the judge found that the offender's conduct in this case went beyond a mere attempt and progressed to the "completion of a robbery."

Defendant relies upon State v. Gonzalez, 318 N.J. Super. 527 (App. Div. 1999), a case where the State was unable to prove the defendant took anything from the victim, and where the failure to charge the jury on attempt was deemed reversible error. Defendant's reliance upon Gonzalez is misplaced. In Gonzalez, the defendant tried to rob the victim, and a fight ensued. Gonzalez, supra, 318 N.J. Super. at 531-32. The defendant in Gonzalez shot the victim during this fight, and then fled the scene. Id. at 532. The State in Gonzalez "was unable to offer any evidence that the victim [] was robbed." Id. at 532-33 (emphasis added).

The instant case is not analogous to Gonzalez because the State provided ample circumstantial evidence to prove robbery. Green testified she saw King holding money, and then drop the money. She did not see the money when defendant left. Both Green and Williams testified they had perceived at the scene that defendant was robbing King.

Furthermore, even if the proofs could be viewed to represent an attempt to rob rather than an actual taking of money from the victim, we note that the trial judge did refer to attempt as part of his overall charge on robbery. As the judge instructed:

Now, the State must first prove beyond a reasonable doubt that the defendant was in the course of committing a theft. In this connection you are advised that an act is considered to be in the course of committing a theft if it occurs in an attempt to commit the theft, during the commission of the theft, or in immediate flight after the attempt or commission.

[(Emphasis added).]

See also N.J.S.A. 2C:15-1(a) (defining robbery to include not only conduct involving a completed theft but also "an attempt to commit theft"). Trial counsel was not ineffective on this issue.

II.

Apart from these assorted criticisms of his trial counsel relating to the jury charge, defendant further claims that Williams's testimony recounting what he had heard Young saying at the shooting location violated the hearsay rules. Defendant argues that his trial counsel's failure to object to such inadmissible hearsay was ineffective. We disagree.

The PCR judge noted that Young's statement caused Williams to look at King. Although Williams never himself saw a gun in defendant's possession, he did see King with his hands raised as defendant patted him down only using one hand. Williams then heard a gunshot. The judge determined that these words were "being spoken as the acts [were] taking place[,]" and "were certainly [admissible] present sense impressions."

Additionally, the PCR judge ruled that Young's utterances comprised "a notice to the witness [Williams] to cause him to look in that direction." The judge also noted the extensive proof that a gun was fired. He found that Young's statements were not that prejudicial to the defendant's case, given the amount of evidence proving there was a gun involved and indicating that defendant was robbing King. Therefore, the judge concluded that Young's statements were not inadmissible hearsay, and even if they were, the lack of an objection to them did not amount to ineffective assistance of counsel.

Defendant argues that Williams's testimony about what Young told him did not satisfy any hearsay exception and, moreover, violated his constitutional right of confrontation. He maintains that the admission of Young's statements prejudicially "tipped the balance" against him.

We reject defendant's arguments for several reasons. First, with regard to the Confrontation Clause, Young's statements to Williams were plainly non-testimonial in nature. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177, 194 (2004); see also Davis v. Washington, 547 U.S. 813, 822, 124 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006) (further explaining the meaning of "testimonial" under the Confrontation Clause). Even if, for the sake of argument, Young's statements were deemed testimonial, the 2004 holding of Crawford does not apply retroactively to this case tried in 1990, for which the avenues of direct appeal were exhausted in 1991. Wharton v. Bockting, 549 U.S. 406 (2007), 127 S. Ct. 1173, 167 L. Ed. 2d 1 (holding that Crawford does not have to be applied retroactively to matters that were not on direct appeal when that opinion was issued in 2004).

In addition, Young's quoted statement was not inadmissible hearsay. "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). The State did not offer Young's statements to Williams for their truth. That is demonstrated by the testimony in question:

Q: Now, what do you remember happening after you got down to the corner of Madison Avenue and Chadwick?

A: The young lady [Young] came to me and said [King] was getting stuck up. And I turned around. I looked and I seen [defendant] patting him down. And he had his hands in the -- up in the air like this (indicating)

. . . .

Q: Now, sir, what happened after you observed this individual patting down [King]?

A: Well, the young lady when she ran to tell me and told me --

Q: Don't tell us what she said. Just tell us what you saw.

A: When I heard the gunshot because I hollered from the pole, I told him -- I said him -- he don't have nothing.

. . . .

Q: And when [Young] came up to you, did you run up to where [King] and this individual were?

A: No, I just turned my head an[d] looked towards them.

Q: Is there any reason why you didn't run up to that area?

A: That's because she told me -- she told me he had a gun.

Q: Without telling me what she told you, why didn't you run up to that area?

A: Well, I just was standing there on the corner. He told me to stay on the corner, so--

Q: What did you think was happening with [King] at that time?

A: From what I seen, it was like he was getting robbed.

[(Emphasis added).]

Young's statements were not being offered to prove the truth of the matters they asserted, i.e., that defendant was robbing King with a gun. Rather, the State used Young's statements to show why Williams had turned and looked at King. Williams's change of visual focus, prompted by Young's declaration, strengthened the credibility of his own observations of the victim and defendant. This was a permissible non-hearsay use of what Young had uttered.

As an independent basis for admission, Young's statements qualify as a present sense impression. That hearsay exception pertains to a "statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). Young's statements involved the observation that King was being robbed, made while King was being robbed and "without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1); see also Polistina v. Polistina, 183 N.J. Super. 291, 293, 297 (App. Div. 1982). All of this was verified by Williams turning and observing King getting robbed. This falls directly under the rule for present sense impression and is not inadmissible hearsay.

Lastly, the admission of Young's utterances did not harm defendant in a manner that rises to the actual prejudice required under Strickland and Fritz. The State presented abundant evidence to prove defendant robbed King and shot him: Green's testimony, Williams's testimony, and the autopsy report showing that King was killed by a gunshot. Any prejudice that Young's statement might have had was outweighed by the independent observations of the two eyewitnesses. No PCR relief was warranted.

III.

Defendant further claims that his trial counsel's failure to present a defense of diminished capacity constituted ineffective assistance of counsel. Again, we concur with the PCR judge in rejecting this argument.

Defendant asserts that he "demonstrated bizarre behavior both before and during the commission of the crime, which strongly indicated that he may have been suffering from mental illness." Additionally, defendant states he had been under the care of a psychologist since at least 1988. Defendant concludes that this evidence required trial counsel to investigate the possibility of mental illness.

It must be emphasized that defendant raised an alibi defense at trial, and he took the stand in his own defense to support that alibi. One cannot logically claim that he did not commit a wrongful act because he was not present at the scene, while simultaneously acknowledging that he committed the act but cannot be responsible for it because his mental capacity was diminished. The PCR judge concluded that trial counsel could not have been ineffective for not putting forth these two contradictory defenses. We agree.

Moreover, the only mental diagnosis defendant has provided is that he has a learning disability. Defendant does not provide adequate evidence to support his claim that trial counsel should have been on notice of the possibility of a diminished mental capacity defense. Cf. State v. Savage, 120 N.J. 594, 619 (1990) (requiring counsel to investigate a diminished capacity defense in a situation where defendant had been hospitalized for mental disorders and had walked on the streets carrying a suitcase containing the remains of a human torso).

IV.

We have examined the balance of defendant's arguments, including his claims that his appellate and PCR counsel were both ineffective, and they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

The order denying defendant's second PCR petition is affirmed.

 

The term "beat," as used in this context, means to sell bad or fake drugs.

(continued)

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A-6537-06T4

January 23, 2009