STATE OF NEW JERSEY v. RAYMOND GRICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4328-07T44328-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMOND GRICE, a/k/a RAYMOND

BERNARD GRICE,

Defendant-Appellant.

__________________________________

 

Submitted January 6, 2010 - Decided

Before Judges Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 80-00-2540.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Raymond Grice appeals the denial of his petition for post conviction relief (PCR). We reverse and remand for an evidentiary hearing.

I.

We discern the following facts and procedural history from the record.

A.

In 1983, Grice and co-defendant Albert Crowley were convicted of kidnapping, contrary to N.J.S.A. 2C:13-1(b)(1); aggravated sexual assault, contrary to N.J.S.A. 2C:14-2; robbery, contrary to N.J.S.A. 2C:15-1; and four other offenses. They were each sentenced to an aggregate term of fifty years of incarceration, with twenty-five years of parole ineligibility. We affirmed their convictions in a consolidated opinion, but remanded for resentencing. State v. Grice, No. A-2612-83 (App. Div. June 6, 1986) (Grice I). The Supreme Court granted certification, 107 N.J. 92 (1987), and affirmed in a per curiam opinion, 109 N.J. 379 (1988) (Grice II), from which three justices dissented. In the interim, the trial judge had again imposed an aggregate term of fifty years of incarceration, with twenty-five years of parole ineligibility.

B.

In our opinion affirming the conviction, we outlined the relevant facts as follows:

At the time of the crime, Grice was eighteen and a senior in high school. Crowley was nineteen and a college freshman. They were apprehended entering the victim's car two and one-half hours after she had been kidnapped, raped and robbed. Crowley had the keys to the victim's car in his possession. He explained his possession by stating that he had seen two men exiting the car, one of whom appeared injured, and that they had left the keys in the car and run across a field. It was a cold rainy night, and Crowley admittedly took the car to drive home. He then went to Grice's apartment and told him that he had a car. They decided to visit Crowley's cousin but were apprehended when they entered the car, which was then under surveillance. Grice contends that he has received a twenty-five-year mandatory minimum sentence for attempting to ride in a car that he thought his friend had borrowed, and Crowley asserts that a similar sentence was imposed for no more than a "joy riding" offense.

The victim's story is heart-rendering. While her savage, brutal and degrading ordeal invokes a natural societal feeling to seek vengeance against the perpetrators, we approach our analysis of this case solely highlighting those facts which bear on the legal issues before us. On February 11, 1981, after an evening of bowling, the victim arrived at her home in Belleville at approximately 9:15 p.m. As she turned to leave her garage she felt an arm over her neck and mouth. She turned and saw two "dark faces." She tried to struggle, but she had a weak right arm due to paralysis as a child. She had an opportunity to see the perpetrators as they stood beneath her garage light. She further viewed them when they forced her into the back of her car, when the car passed under a street light and, after parking in a remote area of Branch Brook Park, when they repeatedly raped her, forced her to perform oral sex, attempted to sodomize her, beat her unmercifully and threatened to kill her. The attackers then pushed her from the car, and shortly afterwards she was picked up by a motorist who took her to his apartment from which she called her tenant, a policeman, as well as the Newark and Belleville Police Departments. She was immediately taken to a local hospital in a hysterical condition. She was then found to have a torn retina and two facial fractures. The police took her to the Rape Unit at United Hospitals where treatment was continued. She was administered numerous medications, twenty-five by her count.

In the interim, off-duty Newark police officer Avalone, who had been working part-time at the United Hospitals' emergency room, was informed of the rape and given a description of the car. When he finished his shift he began searching for the vehicle. At approximately 11:30 p.m. he saw the car on Mt. Prospect Avenue in Belleville, and followed it through the Belleville streets. When it stopped for a red light, he pulled his vehicle alongside and then tried to block the path of the car. He left his car and drew his service revolver, ordering the two black males seated in the front seat to "freeze." The car then swerved and tried to hit Avalone, whereupon Avalone fired and saw the passenger fall to the floor of the car. The car then sped away. Avalone testified that he had thought he had "blown his head off."

Approximately fifty minutes later two other police officers saw the vehicle parked in Newark where Crowley stated he had left it. The officers staked out the vehicle and, as noted earlier, apprehended defendants after they entered the vehicle.

Avalone was called to the scene of the arrest and immediately identified defendants as the men who had attempted to run him down. Defendants were then taken to headquarters and the victim, although not "enthused" about going to police headquarters and hysterical upon arriving there (she initially refused to look at the suspects), agreed to view them. In the individual show-up procedures (there was no formal line-up), defendants were required to repeat some of the phrases the victim had said were employed by the perpetrators when they had threatened, beat and raped her. After this procedure, the victim identified both defendants.

Both youths had extensive alibis for the evening in question. Grice presented evidence that from 6:30 p.m. to 8:45 p.m. he was playing basketball at the Ironbound Boys Club in Newark. The director produced the play book for that evening substantiating Grice's attendance. The game in which Grice played ran from 6:30 p.m. to 7:30 p.m., but a second game scheduled from 7:30 to 8:30 was not played due to insufficient attendance by one of the teams. The other boys on Grice's team testified that since the court was open, Grice and they played for the next hour and left just before the Boys Club closed at 8:45. Member after member of the team took the stand and swore to Grice's presence, although at the time of the trial the boys had dispersed throughout the country. In fact one of the young men, then in the Navy, flew to Newark from Scotland to testify and another flew back from California. Although the youths' testimony did not concur on all facts, the boys claim to have gone to the home of one of them (whose mother also confirmed that the boys arrived after playing basketball) and remained there until 10:30 p.m. She testified that she was shocked when she heard that Grice was charged with these crimes at a time when he was present in her home. After leaving the house of his friend, Grice and the other boys allegedly went to the Roosevelt Projects until just before 11:00, when the friend returned home and Grice and the remaining boys took a bus to their homes at the Georgia King Village.

Crowley's alibi was that from 8:00 p.m. until approximately 11:30 p.m. he was at the home of a girl he knew from school, as confirmed by the girl, her mother and another occupant of the apartment. We note that none of these witnesses were close friends or relatives of defendants or their families. When Crowley left the girl's apartment he would have been in the vicinity of where he alleged he had seen the car abandoned. On this cold, rainy night he had the prospect of walking across Newark. The time would have been just after Officer Avalone testified that he had fired at the car, and thus there was an explanation for why the car would have been abandoned with the keys in it and why the men, one of whom appeared wounded, would have been running from the car. If Crowley's story were not true, defendants would have to have retained the car that they knew had been identified and in which they had just been shot at by a uniformed policeman. Crowley's alibi witnesses also were shocked to hear the next day that he had been charged with these crimes and came forward to establish his alibi.

The victim's description to the police of her assailants was limited to their having dark faces and one being tall and the other short (defendants were within one inch of each other's height), and that they were both wearing leather jackets, one brown and the other beige. She stated, however, that she remembered them and could positively identify them if they were shown to her. She neglected to state that Crowley had a mustache and mutton-chop sideburns as well as a scarred face, and that Grice had a black mark in the center of his forehead and extremely large lips. We note, however, that although the victim, while in the initial shock of the encounter, may not have been able to articulate why she could identify her assailants, the presence of these distinctive features might have aided in her immediate recognition of defendants. Her in-court identification was also definite and unequivocal.

[Grice I, supra, slip op. at 2-7.]

C.

In finding that Grice had received a fair, but not perfect trial, State v. Boiardo, 111 N.J. Super. 219, 233 (App. Div.), certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 231 (1971), we made the following observations:

This case required fine balancing. We appreciate the inherent tension created by a brutalized victim from whom the jury's sympathy would naturally be aroused and the police corroboration of her identification, and, on the other hand, the multiple apparently independent, alibi witnesses and the potential for unreliability in cross-racial identifications. Even in such a setting, and noting the errors described above we cannot say that defendants failed to receive a fair trial. The issue was factual; it was placed before the jurors and was one to be resolved by them; it is not within the province of an appellate court to redetermine this factual dispute.

The failure of the court to inquire as to the ability of the crying juror to continue to decide the case impartially, the failure of the court to reject the jacket as evidence and the slight misstatement by the court concerning the failure to present scientific evidence, all in the context of the eight day trial, did not possess that capacity. Recognizing as we do the proper roles of the jury and a reviewing court, we cannot reverse these convictions and direct a new trial. Defendants may avail themselves of post-conviction procedures if new evidence becomes available and, of course, if sufficient facts can be marshaled, there may be applications for executive clemency.

[Grice I, supra, slip op. at 18-19 (footnote omitted).]

In his dissenting opinion for the Supreme Court, joined by Chief Justice Wilentz and Justice Clifford, Justice O'Hern relied heavily on the trial court's refusal to allow defense counsel to argue about the lack of scientific evidence during summation, noting how the State was then permitted to turn the issue against the defendants:

In this case, the police had taken defendants' underwear "for analysis." Defense counsel should have been free to argue that there was no telltale scientific link between the defendants and the crime. Counsel for defendant Crowley was at a critical stage in seeking to influence the sensitive process of jury deliberations in this case. He had reached the point in his summation when he asked the jury to consider the relative credibility of the witnesses and then "once that determination is made, you have to determine whether or not there are any doubts." When he started to say, "Let's look at the scientific evidence --," the prosecutor objected. The court concluded that since both parties had the opportunity to produce scientific evidence, defense counsel could not comment on its absence.

After discussing the inconclusive nature of the scientific evidence ["there was no evidence either definitely linking defendants to or excluding them from participation in the crime"], the Appellate Division ruled:

Nonetheless, defendant should have been free to argue that no scientific evidence connected them with the crime. Since they were apprehended soon after the crime and were thoroughly examined for Caucasian hairs, blood and semen stains, the lack of such evidence on their persons and on the jacket introduced in evidence was at least relevant. The failure of the State to come forward with any scientific proof raised a fair inference that such proof was either unavailable or not probative of guilt. The jury was free to assume that if defendants were guilty, some forensic proof would tie them to the crime. Thus, counsel should have been free to urge such inference in summation. Also improper was the implication from the court's statements that defense counsel had some duty to present scientific evidence and that if any party wished to have such evidence introduced he "should have done so." These statements by the court were in error, but not so grievous to have affected the results, since during the extended trial the identification issue was squarely placed before the jury.

Of course, the identification issue was for the jury, but counsel should have been free to address the jury as entitled by law.

This Court recognizes the same errors, but it too believes that the errors were incapable of producing an unjust result. The prosecutor knew the significance of this issue. In her closing, she made reference to the fact that "the State didn't produce scientific evidence. Why?" She answered her own question this way: "Because they got up and said to you there is no question there was a rape." That was not the effect that comment about scientific evidence might have had on the jury, for everyone knew that there had been a rape. The defendants should have been free to argue that the absence of any scientific evidence connecting them to the rape cast doubt on the reliability of the identifications and gave credence to their alibi defenses.

The significance of the trial court's ruling was highlighted in a later exchange between the State and the defense. When defense counsel objected to the State's being permitted to infer that stains on the perpetrators' coats were blood, counsel for defendant Grice protested:

Your Honor, we were barred from making any comments on scientific evidence.
 
THE COURT: It's true.

 
COUNSEL: -- The Court knows if I wanted to I could load up the 12 gauge shotgun and fire it anyway and have the Judge yell at me, impose sanctions or whatever it wants.

 
Indeed, the Appellate Division and this Court hold that the jacket itself was erroneously admitted into evidence, since it was Crowley's father's jacket and there was no reliable proof that Crowley had ever worn it, much less that it had blood on it.
 
Of course, none of this establishes that defendants are innocent. I realize that the human horror of this case makes us recoil from the order of a retrial. Still, "[t]he accused, no matter how abhorrent the offense charged nor how seemingly evident the guilt, is entitled to a fair trial * * *." State v. Orecchio, 16 N.J. 125, 129 (1954). I simply cannot determine with certainty how the jury would have resolved this case had counsel been free to argue the issues as they wished. . . .

[Grice II, supra, 109 N.J. at 392-94.]

D.

In December 2003, Crowley filed a motion to correct an illegal sentence, arguing that DNA evidence no longer in existence would have exonerated him. In a letter opinion dated January 9, 2007, following an analysis concerning the prospective application of State v. Natale, 184 N.J. 458 (2005), the motion judge concluded that Crowley was entitled to relief.

Defendant Crowley's resentencing occurred in 1986. Although Natale applies prospectively, this court concludes that defendant is entitled to some relief since the failure to preserve DNA evidence, that could have lead to defendant's exoneration, was due to no fault of his own. Without this evidence, defendant is essentially without recourse. While executive clemency is not a realistic alternative, this court finds that the appropriate relief is to reduce defendant's remaining sentence to time served. Counsel for defendant is directed to submit an appropriate form of order under the five (5) day rule.

Although it had opposed the application, the State did not appeal the order reducing Crowley's sentence to time served.

E.

On March 30, 2007, Grice filed a pro se petition for PCR. He was assigned counsel, who supplemented the filings. Oral argument was held on January 8, 2008, before a different judge. That judge concluded that Grice's claims were time barred, that there was no excusable neglect or fundamental injustice, and that Grice failed to make out a prima facie claim of ineffective assistance of counsel. With respect to the relief granted to Crowley, the judge noted that, unlike Crowley, Grice had not pursued other avenues prior to the successful application in 2007, on which Grice sought to rely.

This appeal followed.

II.

Grice raises the following issues on appeal:

POINT ONE: THE COURT ABUSED ITS DISCRETION AND ERRED IN FINDING THAT DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS PROCEDURALLY BARRED PURSUANT TO R. 3:22-12.

POINT TWO: THE COURT ERRED WHEN IT FAILED TO FIND A DISPARITY IN THE SENTENCE IMPOSED UPON DEFENDANT AND CO-DEFENDANT FOR THE SAME CRIME.

POINT THREE: THE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL BY U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

A.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that 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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding, United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 55-56; see also State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

B.

Rule 3:22-12 provides a time limit for the filing of PCR petitions. It specifies that "[a] petition to correct an illegal sentence may be filed at any time," but that "[n]o other petition shall be filed . . . more than [five] years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12. Lack of "sophistication in the law does not satisfy the exceptional circumstances required" to constitute excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000).

The five-year time bar established by Rule 3:22-12 is relaxable only in "exceptional circumstances." State v. Afanador, 151 N.J. 41, 52 (1997). In determining whether or not exceptional circumstances exist, courts consider "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' . . . ." Ibid. Without "compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.

III.

The PCR judge denied the petition because Grice's claims regarding ineffective assistance of counsel were time barred pursuant to Rule 3:22-12. We agree that an application of the time limits set forth in Rule 3:22-12 would bar the claims. Although the petition was framed as one to correct an illegal sentence, it has been established that an illegal sentence is one that does not conform to the authorized sentencing parameters, State v. Flores, 228 N.J. Super. 586, 592-95 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), or was imposed without following the appropriate sentencing procedures, Murray, supra, 162 N.J. at 247.

We disagree, however, with the judge's conclusion, made without holding a plenary hearing, that the overall circumstances of this case do not present the type of "exceptional circumstances" that would warrant relaxation of the rule's time limitations. Afanador, supra, 151 N.J. at 52. As outlined at length above, the identity of the defendants was a crucial issue at the trial. Although we affirmed the conviction, we noted that doing so required "fine balancing" because of trial errors related to that issue. Grice I, supra, slip op. at 18. We concluded our opinion with the observation that defendants could "avail themselves of post-conviction procedures if new evidence becomes available." Id. at 19. Our decision was affirmed, but only by a divided Supreme Court whose three dissenting members expressed great concern about the fairness of the trial as it related to the issue of identity. Finally, a different Law Division judge granted relief to the co-defendant on the same grounds articulated by Grice, which decision was for some reason not challenged by the State on appeal.

We do not agree with Grice that the considerations underlying the Supreme Court's concerns about disparate sentences in State v. Roach, 167 N.J. 565, 570 (2001) ("The fundamental precept of sentencing uniformity is that sentencing should not depend on chance or the luck of the judicial draw."), necessarily mandates that Grice receive a reduction in sentence because his co-defendant received one under what may have been a legally questionable ruling. Nevertheless, we do not believe that a relaxable procedural bar should prevent him from having the opportunity to seek the same relief based upon the merits of his claims under the very unusual and particular circumstances of this case.

Consequently, we reverse the order on appeal and remand to the Law Division for a plenary hearing. At the hearing, Grice should be permitted to offer evidence on the merits of his claims. Those claims will, however, be determined by application of standard principles of law governing PCR cases. In that regard, we note that the PCR judge did address the merits, based upon his assumptions about the standards of practice and the reasons for actions by counsel in 1983. We have concluded that, in a unique case such as this one, a fuller factual record is necessary, so that the case is decided on facts rather than assumptions.

Reversed and remanded.

 

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A-4328-07T4

April 8, 2010