On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-02-0459.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2008
Before Judges Sabatino and Simonelli.
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."*fn1 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 ...