STATE OF NEW JERSEY v. EDWARD GRIMES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3482-07T43482-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD GRIMES,

Defendant-Appellant.

_______________________________

Submitted March 2, 2010 - Decided April 29, 2010

Before Judges Wefing and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

93-12-1562.

Edward Grimes, appellant pro se.

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Meredith L. Balo,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

A jury convicted defendant in 1995 of murder, N.J.S.A. 2C:11-3a; unlawful possession of a weapon, N.J.S.A. 2C:39-5d; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and three counts of aggravated assault, N.J.S.A. 2C:12-1b. The trial court sentenced defendant to life in prison, with a thirty-year period of parole ineligibility, for murder; three consecutive ten-year terms, each with a five-year period of parole ineligibility, for aggravated assault;, and concurrent terms for the weapons offenses. Defendant appealed his convictions and sentence and, although we remanded to correct an error in the judgment of conviction, we otherwise affirmed in an unpublished opinion. State v. Grimes, No. A-1454-95T4 (App. Div. Sept. 30, 1997).

Defendant thereafter filed a PCR petition, which was heard by the judge who presided at defendant's trial. Counsel was assigned to represent defendant in connection with this first petition. After receiving briefs and hearing oral argument, the judge denied defendant's PCR petition. Defendant appealed from that denial, and we affirmed. State v. Grimes, No. A-4931-99T4 (App. Div. Dec. 7, 2001). The Supreme Court denied defendant's petition for certification. State v. Grimes, 172 N.J. 181 (2002).

Defendant filed a second petition for PCR in 2003. Counsel was again assigned to represent defendant on this petition, which was again heard by the judge who presided at defendant's trial. The judge conducted a two-day hearing with respect to defendant's allegations and then denied defendant's PCR petition. Defendant, represented by counsel, appealed to this court. We again affirmed the denial of PCR. State v. Grimes, No. A-6017-04T4 (App. Div. June 11, 2007).

Approximately six months after we issued our opinion affirming the denial of defendant's second PCR petition, and more than twelve years after his conviction, defendant filed his third petition seeking PCR. Again, defendant's petition was heard by the judge who had presided at defendant's trial. That judge again denied the petition, and defendant has again appealed to this court. On appeal, defendant raises the following contentions:

POINT I DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING TO DEMONSTRATE THAT HE WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY'S FAILURE TO SUPPLY THE DEFENSE WITH AN EXPERT TO AID IN HIS DEFENSE[.]

POINT II PCR COUNSEL WAS INEFFECTIVE FOR NOT INTRODUCING A REPORT ISSUED BY [AN] EXPERT THAT WOULD CLEARLY NEGATE [THE] KNOWING AND PURPOSEFUL ELEMENTS OF MURDER[.]

POINT III THE COURT SHOULD HAVE GRANTED DEFENDANT AN EVIDENTIARY HEARING TO DETERMIN[E] IF DIMINISHED CAPACITY WAS A TRIABLE ISSUE AND THE COURT DID NOT JUDGE PETITION IN THE MOST FAVORABLE LIGHT OF DEFENDANT PURSUANT TO STATE V. PRECIOSE.

POINT IV THE ISSUES BEFORE THIS COURT ARE PROPERLY PRESENTED AND CANNOT BE BARRED BASED ON NEW EVIDENCE, STATUTORY LAW AND CONSTITUTIONAL LAW.

At trial, defendant's attorney argued that defendant's actions were fueled by defendant's consumption of cocaine and heroin over a three-day period, during which defendant did not sleep. He did not present an expert witness with respect to intoxication.

Counsel who represented defendant in connection with his second petition for PCR did retain an expert to examine defendant and the records in connection with his arrest. That expert concluded that while defendant had ingested significant quantities of alcohol and drugs prior to the incident, "it is not possible for me to conclude that [defendant] was unable to act with knowledge and purpose as is required under the law." [Aa3]. He continued, however, along the following lines in his report:

I cannot completely rule out the possibility that some type of interaction of drugs and alcohol, including possible residual effects of the subject's chronic history of drug use and the effects of the crack "run", may have altered his behavioral capacities and mental faculties. This would not be an uncommon occurrence. However, I cannot conclude that this would rise to the level of critically impairing his ability to act with knowledge and purpose consistent with absolving culpability for his actions. The possibility I raise here is consistent with a view of a subject with diminished capacity that would act as a mitigating factor in the instant offense. Given the length of time between the offense, the conviction and the point of my interview and review of documents supplied to me, it is not possible to reconstruct a fully satisfying retrospective profile of the subject's level of disability at the time of the offense.

The thrust of defendant's argument on this appeal is that, based upon this report, he did not receive the effective assistance of counsel at trial because his attorney did not pursue a defense of diminished capacity and that the attorney who represented him in connection with his second PCR petition was ineffective for not introducing the expert's report.

A defendant alleging that he should receive relief because his attorney provided him with ineffective assistance must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). In State v. Fritz, 105 N.J. 42, 58 (1987), our Supreme Court adopted the Strickland standards. "[A] defendant whose counsel performed below a level of reasonable competence must show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Thus, to establish a prima facie claim of ineffective assistance of counsel, a defendant must meet both prongs of the Strickland/Fritz test. First, he must show that the actions of his trial counsel were deficient in performance and not objectively reasonable. See Fritz, supra, 105 N.J. at 60-61. Second, a defendant must show that this deficient performance materially affected the outcome of his trial. Ibid.

Petitions for PCR are procedurally governed by Rule 3:22-1 to -12. Rule 3:22-12(a) sets a five-year window within which a defendant may file a petition for PCR and specifies that a petition may not be filed beyond that period "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." Defendant's third PCR petition is thus clearly time-barred.

Rule 3:22-5, moreover, provides that a prior adjudication on the merits of any ground asserted in the petition bars a defendant from presenting it anew. Defendant specifically raised in his appeal to us from the denial of his second PCR petition that his attorney had been ineffective in not introducing the expert's report. We rejected that argument as lacking sufficient merit to warrant discussion in a written opinion. Defendant may not attempt to re-litigate that issue through the vehicle of a third PCR petition.

The order under review is affirmed.

 

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