June 11, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWARD GRIMES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 93-12-1562.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 16, 2007
Before Judges Parrillo and Sapp-Peterson.
Defendant Edward Grimes appeals from the order of the Law Division denying his second petition for post-conviction relief (PCR). We affirm.
In June 1995, a jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3; three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree possession of a knife for unlawful purposes, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d. These convictions stemmed from defendant's brutal stabbing attacks on July 4, 1993, on each of four victims, one of which resulted in the death of an innocent man who had merely responded to his wife's pleas for help. All of the surviving victims were seriously injured. Defendant was sentenced on September 15, 1995 to an aggregate life term with forty-five years of parole ineligibility.
Defendant appealed his convictions to this court, alleging that a statement he had made was inadmissible, that his consecutive sentences were excessive, and that the judgment of conviction contained an error. We affirmed on September 30, 1997, but remanded to the trial court to amend the judgment of conviction to reflect the concurrent sentence on the fourth-degree weapons offense.
Following denial of his petition for certification, defendant sought post-conviction relief in June 1998, arguing that his trial and appellate attorneys were ineffective. Judge Barisonek denied the petition on May 19, 1999. Defendant appealed that determination, arguing ineffective assistance of trial, appellate and PCR counsel. Specifically, by counsel, he raised the following issues:
I. THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL MUST BE REVERSED.
A. Counsel failed to provide effective assistance by failing to consult with defendant in a meaningful way prior to trial.
B. Counsel failed to provide effective assistance by failing to assert defendant's conduct amounted to passion/provocation manslaughter.
C. Counsel failed to provide effective assistance of counsel by failing to assert a viable intoxication defense.
D. Counsel failed to provide effective assistance by failing to present an alternate theory to the State's case during trial.
E. Counsel failed to provide effective assistance by failing to locate, interview and subpoena a witness.
F. Counsel failed to provide effective assistance by failing to move for a mistrial.
II. THE LOWER COURT ERRED IN REFUSING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
IV. DEFENDANT'S CLAIMS SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.
V. THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION ON THE BASIS OF PROSECUTORIAL MISCONDUCT.
VI. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL.
VII. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED ON THE GROUNDS THAT THE TRIAL COURT IMPROPERLY ADMITTED INTO EVIDENCE ARREST PHOTOGRAPHS OF THE DEFENDANT.
VIII. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN NOT ADMITTING INTO EVIDENCE THE GRAND JURY TESTIMONY OF MENDEZ AND IN NOT GRANTING A CONTINUANCE TO PROCURE HIS ATTENDANCE.
IX. THE DENIAL OF DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE HEARING IN SUPPORT OF THE MOTION. (NOT PRESENTED BELOW.)
Additionally, defendant raised the following issues pro se:
INTRODUCTION. DEFENDANT SHOULD NOT BE BARRED FROM THIS COURT TO HEAR ISSUES RAISED IN HIS PRO SE BRIEF.
I. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR (1) HIS FAILURE TO INVESTIGATE AND INTERVIEW A WITNESS THAT GAVE TESTIMONY AT GRAND JURY REGARDING THIS CASE. (2) HIS FAILURE TO UTILIZE AN EXPERT AND FULLY DEVELOP AN INTOXICATION DEFENSE. (3) HIS PRETRIAL CONSULTATION WITH DEFENDANT WAS GROSSLY INSUFFICIENT. BY COUNSEL'S ACTIONS, DEFENDANT WAS DENIED HIS DUE PROCESS RIGHTS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS.
II. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL.
III. (1) THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING ARREST PHOTOS OF DEFENDANT DURING TRIAL. (2) THE TRIAL COURT'S INSTRUCTIONS ABOUT THE PHOTOS WAS [SIC] ERRONEOUS AND MISLEADING. (3) THE PROSECUTOR'S MISUSE OF THE PHOTOS DURING SUMMATION AMOUNTED TO PROSECUTORIAL MISCONDUCT.
IV. THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL WHEN IT DENIED DEFENDANT TO USE SWORN GRAND JURY TESTIMONY OF UNAVAILABLE WITNESS, OR IN THE ALTERNATIVE GRANT A ONE DAY CONTINUANCE TO SECURE HIM FOR TRIAL.
On December 7, 2004, we affirmed the denial of defendant's first PCR petition, finding all of these issues without sufficient merit, Rule 2:11-3(e)(2), and several of them procedurally barred as well, Rule 3:22-4. Following denial of his petition for certification, State v. Grimes, 172 N.J. 181 (2002), defendant filed a second PCR petition on March 26, 2003, essentially arguing ineffective assistance of counsel, who "was so egregiously unprepared to put forth the intoxication defense that he actually sabotaged [the] defense through his own actions." In a pro se supplemental brief, defendant raised the following additional points:
I. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL WHEN HE FAILED TO RAISE ALL VIABLE ISSUES ON APPEAL.
l. Inadmissibility of photographic evidence.
2. Failure to raise the issues in the unfiled pro se brief.
II. THE TRIAL COURT'S INSTRUCTIONS CONCERNING ARREST PHOTOS OF DEFENDANT MISLEAD (sic) THE JURY OF A MATERIAL FACT, THUS PREJUDICED AND VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS.
III. INEFFECTIVE ASSISTANCE OF COUNSEL. TRIAL COUNSEL FAILED TO CONDUCT ANY PRETRIAL INVESTIGATION INTO THE FACTS SURROUNDING THE CHARGES AGAINST DEFENDANT AND POSSIBLE DEFENSES CONTRARY TO THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
1. Failed to consult with a toxicology expert for intoxication defense.
2. Failed to interview the State's toxicology expert.
3. Failed to locate, interview and subpoena a witness who gave a grand jury deposition for the State [the "Mendez" issue].
4. Failed to interview medical doctor who treated petitioner at hospital shortly after defendant was arrested.
5. Failed to investigate the blood and urine samples taken from defendant.
6. Failed to interview any police officers involved in the investigation.
7. Failed to interview any doctor who treated the alleged victims at the hospital.
8. Failed to interview coroner who performed autopsy.
9. Failed to interview any of the alleged victims.
10. Failed to conduct independent investigation of the DNA reports and laboratory analysis.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL. COUNSEL'S COMPLETE FAILURE TO INVESTIGATE THE MERITS OF THE INTOXICATION DEFENSE, SECURE AN INTOXICATION EXPERT FOR TRIAL OR CONSULT WITH AN EXPERT PRIOR TO TRIAL WAS INEFFECTIVE ASSISTANCE OF COUNSEL, CONTRARY TO THE CONSTITUTION OF THE UNITED STATES. U.S.C.A. AMEND. 6, 14.
1. Failure to interview the State's toxicology expert.
2. Failure to subpoena any toxicology records of analysis.
3. Stipulation to the State's analysis.
V. INEFFECTIVE ASSISTANCE OF COUNSEL. COUNSEL WAS SO EGREGIOUSLY UNPREPARED TO PUT FORTH THE INTOXICATION DEFENSE THAT HE ACTUALLY SABOTAGED DEFENSE THROUGH HIS OWN ACTIONS, DENYING PETITIONER HIS RIGHT TO COMPETENT COUNSEL AND A FAIR TRIAL, AS GUARANTEED BY THE UNITED STATES CONSTITUTION.
1. Calling Felicia Kelly as a witness.
VI. PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO LOCATE, INTERVIEW AND SUBPOENA A STATE'S WITNESS WHO GAVE GRAND JURY TESTIMONY IN THIS MATTER AND WAS CRUCIAL TO DEFENSE, AND WAS KNOWN BY COUNSEL. COUNSEL'S ACTIONS WAS [SIC] A DENIAL OF PETITIONER'S CONSTITUTIONALLY PROTECTED RIGHTS TO A FAIR TRIAL [THE "MENDEZ" ISSUE].
VII. INEFFECTIVE ASSISTANCE OF COUNSEL: DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE, EXPLORE AND PRESENT AN ALTERNATE THEORY TO THE STATE'S CASE DURING TRIAL. DEFENSE COUNSEL CONCEDED DEFENDANT STABBED DECEDENT MINIMIZING THE STATE'S BURDEN OF PROOF TO THE ISSUE OF MURDER, WHEN DEFENDANT STEADFASTLY DENIED HE STABBED OR CAUSED THE DEATH OF DECEDENT. DEFENSE COUNSEL'S ACTIONS DENIED DEFENDANT'S RIGHT TO A FAIR TRIAL.
1. Failure to establish that defendant did not stab the victim [without the defendant himself testifying to that fact].
2. Failure to establish that someone else killed the decedent.
3. Failure to establish the existence of a second knife that was the murder weapon used by someone else.
4. Failure to establish that the defendant acted in self-defense.
5. Failure to establish that the defendant acted under a reasonable provocation in support of the passion/provocation manslaughter defense.
PCR counsel submitted a letter brief to supplement that of the defendant and presented the following issues:
I. IT WAS GROSS ERROR OF PROFESSIONAL JUDGMENT, AMOUNTING TO INEFFECTIVE ASSISTANCE OF COUNSEL, FOR TRIAL COUNSEL TO HAVE PRESENTED FELICIA KELLY'S TESTIMONY AT ALL. KELLY'S TESTIMONY RELATED A FOUR-HOUR OR SO INTERVAL RIGHT BEFORE THE CRIMES WHEN DEFENDANT, WHO HAD INTERPOSED AN INTOXICATION DEFENSE, WAS SAID NOT TO HAVE INGESTED ANY INTOXICANTS AT ALL. AN UNINFORMED JURY WOULD NATURALLY ASSUME THAT THIS FACT UNDERMINED IF NOT DESTROYED THE INTOXICATION DEFENSE, WHICH WAS NOT PRESENTED WITH THE AID OF EXPERT TESTIMONY THAT, EVEN IF TRUE, THE HIATUS DID NOT NEGATE A DANGEROUS HIGH FROM PRIOR INGESTION.
II. THE THREE PROSECUTORIAL BARS THAT COULD APPLY TO ONE OR ANOTHER OF THE SEVEN ISSUES BEING PRESENTED TO THE COURT ARE EITHER INAPPLICABLE AS DIFFERENT ISSUES THAN ANY DECIDED BEFORE (R. 3:22-5), OR WOULD PRESENT INSTANCES OF MANIFEST INJUSTICE IF BARRED ON THE BASIS OF OPPORTUNITY TO RAISE PREVIOUSLY (R. 3:22-4) OR PRESENTATION BEYOND THE FIVE-YEAR LIMIT. (R. 3:22-12).
At a hearing on defendant's second PCR petition on May 24, 2005, Judge Barisonek heard testimony from defendant and defendant's first PCR attorney, John Goins, Esq. Defendant essentially complained that Goins did not visit him in prison while representing him on his first PCR petition, and that had counsel further consulted with him, Goins could have argued that defendant's trial counsel, Mr. Ignatoff, ought to have argued that defendant did not stab the victim, Rudolph Newsome.
Defendant further complained, again apparently to set forth the issues that Goins should have championed at his first petition for post-conviction relief, that Ignatoff should have reviewed the crime scene photos with him prior to trial; that Ignatoff should have found and called as a witness an individual, Barry Mendez, who prior to the time of the murder, appeared briefly at the door of the residence where the murder occurred; that Ignatoff was incompetent because he did not object successfully to the admission of defendant's arrest photo; and that Ignatoff ought not have entered into a stipulation with regard to the results of a DNA report.
Goins testified, on the other hand, that he corresponded with defendant at least twice; reviewed defendant's PCR application, supporting pro se brief, "all of the trial transcripts" and "trial and post-trial motions" transcripts; prepared an amended petition and supplemental brief to specifically address the meritorious issues; and researched, briefed and orally argued these issues to the court.
At the conclusion of the hearing, Judge Barisonek denied defendant's second PCR petition in an extensive and comprehensive oral opinion. He found in pertinent part:
The only additional issue I will address was one that was raised in the subsequent P.C.R. hearing concerning alleged ineffective assistance of counsel as a result of calling the sister-in-law [Felicia Kelly] to testify at the time of trial when it allegedly negated any issues concerning the intoxication defense. There is nothing before this court nor based on the record in front of me to show that a toxicologist would have presented anything else to this jury that would have changed this jury's mind. The jury heard all of the testimony concerning the amount of alcohol and drugs consumed during the course of the proceeding day and the day of the actual stabbings. They heard the police officers describe their communications with the defendant. They heard the testimony of the police officer concerning the concealment of the knife, concerning the defendant's abilities to function and recall events, concerning the issues as to how the defendant acted both at the scene and in police custody.
So the jury heard all the details and I'm at a loss to decide what this jury would hear that would change their mind based on the toxicologist's testimony.
Concerning the issue dealing with Felicia Kelly, her testimony was significant, and Mr. Grimes says the trial attorney should never have brought her in because it hurt his defense. She, however, testified affirmatively about all of the victims' use of alcohol and drugs, obviously affecting their ability to remember the events as to what went on and who was using what, when, who was drinking, who was using crack. So her testimony is very relevant as far as that's concerned.
. . . She is the only other person I find that can corroborate the fact that the defendant may have looked high and/or was involved with respect to the use of drugs. She also confirms in her statement that the defendant did in fact use heroin, use crack, that he had been in an inpatient program and that he was still using, so the jury gets the benefit of hearing all of that information, to in fact if not inferentially, if not directly corroborate the fact that the defendant is a drug user and had used drugs that day and earlier in the evening; the day before.
So you can see why the defense attorney called [the witness], and quite honestly, even if he didn't they [sic] were available to the State as a witness if all this information is introduced concerning the consumption of alcohol and/or drugs. There's certainly more than sufficient testimony for this jury to find, based on everything I just recited, that the defendant's faculties were not so prostrated so as to render him incapable of having the sufficient mental state, and that's clearly what the jury found. There is nothing, and to this day has been nothing submitted by way of an expert report which would show that in fact his faculties were prostrated to that extent and would therefore, if they were so prostrated, affect his mental state and if anything would have been contrary to what everybody else testified to.
Based on the facts and circumstances of this case as well as the overwhelming evidence that was admitted against [defendant], I find that Mr. Goins did provide adequate representation pursuant to the standard required under case law and pursuant to Rule 3:22-6 and to reargue all of these issues with new PCR counsel where nothing would change and nothing new has been presented would be a waste of time.
For those reasons, I am denying the subsequent petition that has been filed in this case. [Defendant] has been represented sufficiently by Mr. Goins under the rule and under case law there is no merit in these applications; they're both, the new application is both time barred, has been adjudicated on merits by me, has been judicially decided by the Appellate Division in their opinion of having no merit. So the P.C.R. is denied.
The problem with your argument is, number one, [you're] bootstrapping it with respect to whether or not Mr. Goins was ineffective and my point remains, if I address it from that standpoint, that's why I took the time today to recite all the testimony about every independent witness besides the people who were stabbed at the scene going to the hospital. The issue is not how much he used the day before or that three or four hours before, but how intoxicated he was at the time the incident occurred.
They heard from every witness in the house; they heard from every police officer who arrived at the scene and spoke to the defendant; they heard from the people in the hospital, recall him being cogent, being able to do everything. He got the benefit of the intoxication defense nonetheless.
To this date I haven't seen anything from an expert that would say in light of all that testimony they would render an opinion to say his faculties were so prostrated that he could not have understood the consequences of his acts. 12 years later. 12 years later. And again this is when you get into all the issue and why I addressed the Appellate Division decision in terms of being time barred. This could have been done years ago if it was an issue. This is part of the record in terms of what the Appellate Division could have considered, and I disagree with you strenuously when you say the attorney did not present an intoxication defense. That's exactly what he did if you read this transcript. He may not have called an expert, that was his only viable defense in this case, the only viable defense. When I said the testimony was overwhelming, quite candidly and I'm not being facetious here, in 21 years I haven't seen a much stronger case than this, including the defendant's statement, four witnesses, three of whom are still alive and the fourth one who's dead and the defendant's on his back about a minute and a half, I'm sorry the victim was on this defendant's back struggling with him after he stabbed the victim's wife and the police show up and find him dead in the location where the defendant's struggling with him on the floor.
On appeal now, defendant argues the court erred in denying his second PCR petition. In a supplemental brief, he further argues:
I. PCR COUNSEL WAS INEFFECTIVE FOR NOT INTRODUCING A REPORT ISSUED BY EXPERT THAT WOULD CLEARLY NEGATE KNOWING AND PURPOSEFUL ELEMENTS OF MURDER.
II. COUNSEL WAS SO EGREGIOUSLY UNPREPARED TO PUT FORTH THE INTOXICATION DEFENSE THAT HE ACTUALLY SABOTAGED DEFENSE THROUGH HIS OWN ACTIONS, DENYING PETITIONER HIS RIGHT TO COMPETENT COUNSEL AND A FAIR TRIAL AS GUARANTEED BY THE UNITED STATES CONSTITUTION.
III. DEFENDANT WAS DENIED HIS DUE PROCESS AND EQUAL PROTECTION RIGHTS WHEN PCR COUNSEL FAILED TO CONSULT WITH HIM PRIOR TO PCR HEARING TO ASCERTAIN RELEVANT FACTS FROM DEFENDANT THAT WOULD HAVE AIDED TOWARDS A MORE FAVORABLE RESULT.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm therefore substantially for the reasons stated in Judge Barisonek's thoughtful and comprehensive oral opinion of May 24, 2005. We add only the following comments.
Aside from lacking substantive merit, defendant's arguments are procedurally barred as out of time, Rule 3:22-12; as already adjudicated, Rule 3:22-5; and to the extent not heretofore decided, as capable of being raised and therefore now precluded from review, Rule 3:22-4. Significantly, the claim of ineffective assistance of first PCR counsel (Goins) was raised and decided as without merit on defendant's appeal from the denial of his earlier PCR petition. In that regard, defendant specifically argued that Goins was ineffective for, among other things, not arguing that trial counsel was inadequate for not securing an intoxication expert and that Goins also should have obtained an expert for the first PCR hearing. As noted, these arguments, and others, were rejected as without merit, Rule 2:11-3(e)(2). Consequently, defendant's present claim as to PCR counsel's performance is barred by Rule 3:22-5. And, to the extent he raises additional complaints of counsel ineffectiveness on the second PCR petition, defendant's failure to have raised them previously precludes their consideration presently. R. 3:22-4. Finally, even though procedurally barred, Judge Barisonek addressed each claim, both new and old, substantively and found all of them lacking merit.
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