March 15, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD MCGRAW, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-07-0950.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2009
Before Judges Payne and Miniman.
Defendant, Ronald McGraw, was convicted of conspiracy to commit murder, N.J.S.A. 2C:11-3a and N.J.S.A. 2C:5-2; murder, N.J.S.A. 2C:11-3a(1) or (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6. He was sentenced to fifty years in custody with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the murder conviction, and to a concurrent term of five years on the conviction for unlawful possession of a weapon. The remaining convictions were merged into the murder conviction and dismissed. On appeal, we affirmed the convictions in an unreported opinion, but remanded the unlawful possession conviction for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). See State v. McGraw, No. A-2250-04T4 (App. Div. November 8, 2006). After certification was denied, State v. McGraw, 189 N.J. 427 (2007), a four-year concurrent sentence was imposed on the remanded charge.
On April 20, 2007, McGraw filed a pro se petition for post-conviction relief (PCR). After assignment of counsel, the matter was argued before Judge Randolph M. Subryan and denied by him in a written opinion. Defendant has appealed, raising the following arguments:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to consult with defendant in a meaningful manner.
B. Trial counsel failed to cross-examine the State witness McGriff forcefully.
C. Trial counsel was ineffective in regards to the charge to the jury.
D. Trial counsel failed to file motions to suppress defendant's statement.
E. Trial counsel failed to investigate all possible defenses.
F. Trial counsel failed to investigate and present essential witnesses at trial.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
The record discloses the following facts in support of the jury's verdict. On March 31, 2002, Michael Carter, a drug dealer and a member of the Bloods gang, was present at the Island Bar and Liquor Store in Paterson. Three men, dressed in red with red rags covering their faces and armed with handguns entered the bar and shot Carter, execution style, in the head and foot, causing his death.
Just before the shooting occurred, Carter's cousin Jacquillet McGriff, who had been raised with Carter and regarded him as her brother, had been in the bar with Carter. However, she left the bar to speak with a male known to her as Mild. After taking approximately five or six steps out of the bar, she saw three young men, aged eighteen or nineteen and dressed in red, approach. All three pulled guns as they entered the bar. Shortly thereafter, McGriff heard shots, and when she looked inside, she discovered that Carter had been killed. After calling the police and Carter's mother, McGriff sought to return to the bar, but was denied entry by the police. Thereafter, she was taken to police headquarters, where she gave a statement as to what she had witnessed, describing defendant as one of the three men entering the bar and stating that he was "short, fat, with a red hoodie and dark skin with a red bandanna around his face." After reviewing police photo books, McGriff identified a picture of defendant, stating that she was one hundred percent sure of the identification because she had seen him "up the block on East 26th Street." McGriff stated, "when I saw him, I know who he was but I don't know his name." McGriff described the other two assailants as light skinned and slender. One wore a red and black leather Avirex jacket, a red baseball hat and a red bandanna around his face. The other was dressed similarly and was wearing a red leather jacket.
Thereafter, the police discovered a red and black Avirex jacket under a porch approximately two blocks from the bar, along with a loaded Jennings .380 caliber handgun. Ballistics testing on two bullet casings recovered from the floor of the bar confirmed that one had been discharged from the Jennings gun. The other came from a different gun that was never recovered.
During the course of their investigation of the crime, the police were told by defendant's sister that "Bloody J" may have been involved. Bloody J was subsequently identified as George Jacobs, and he was arrested on April 2, 2002. On April 3, 2002, defendant turned himself in to the police. In a statement given to them, defendant identified Rashawn Cooks, a seventeen-year-old newly initiated Blood, as the person firing both shots at Carter. Defendant claimed no knowledge that the shooting was going to occur and said that the three merely planned to "get him" because Carter had violated gang rules by associating with the rival Crips, but not shoot him.
At the trial of charges against defendant,*fn1 McGriff, whom it was suggested had been intimidated by other Bloods, claimed little or no recollection of the events surrounding Carter's death. As a consequence, following a hearing pursuant to State v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff'd 121 N.J. 1 (1990), all but a few portions of McGriff's statement was admitted as substantive evidence.
Defendant, who testified on his own behalf at trial, admitted that he was a member of the Nine Trey Gangsta sect of the Bloods in Paterson and that he was a drug dealer. He testified that, before the shooting, Jacobs learned that Carter had been selling drugs with the Crips. The three then determined to confront Carter and, if warranted, to administer a "thirty-one second beat down." However, defendant testified that when Jacobs and Cooks entered the bar they immediately pulled out their guns, shooting Carter. Defendant stated that he had not previously inculpated Jacobs because he was a friend and a ranking member of the Bloods and because he feared retribution as a snitch. Defendant denied possessing a weapon at the time of the shooting, although he admitted to weapons possession on other occasions, and he denied shooting Carter or knowing that he would be shot.
Following trial, Judge Subryan gave the jury instructions that included an instruction on accomplice liability. During deliberations, the jury queried whether someone who was an accomplice to murder could be found guilty of murder. After discussing the question with counsel, the judge responded:
The answer to that question is yes, provided, of course, that you are satisfied that the State has proved beyond a reasonable doubt all of the elements that I instructed you about when I read to you the charge of accomplice [liability].
As previously stated, defendant was found guilty on all counts, his conviction was affirmed, and certification was denied. The present PCR petition was then filed.
In his PCR petition, defendant claimed that trial counsel failed to meaningfully consult with him, that he was not vigorous in his cross-examination of witness McGriff, that he did not strongly advocate for defendant in connection with the jury's question regarding the accomplice charge, he failed to file a Miranda*fn2 motion to challenge defendant's statement to the police, failed to investigate all defenses, and failed to investigate and present essential witnesses at trial. Defendant also claimed ineffective assistance of appellate counsel.
Judge Subryan denied defendant's petition without a hearing. In his lengthy written opinion, the judge set forth the court rules relating to PCR petitions and their consideration, governing case law, including Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) (setting the two-pronged standard for PCR), State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's standard in New Jersey), and State v. Preciose, 129 N.J. 451, 462-64 (1992) (establishing, inter alia, circumstances warranting an evidentiary hearing). He then concluded that defendant had failed, in accordance with Strickland and Fritz, to present prima facie evidence that counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Because prima facie evidence was lacking, the judge determined, a Preciose evidentiary hearing was not required.
Specifically, the judge determined as a matter of fact that defendant's claim that trial counsel met with him on only three occasions for a period of one-half hour was inaccurate, since to the judge's knowledge a full day had been spent by counsel and defendant in failed plea negotiations with the prosecutor and, on various other occasions, the judge had adjourned proceedings to facilitate such negotiations, both before and after trial. On those occasions, the concept of accomplice liability, the theory upon which defendant was tried, had been fully explained to him.*fn3 Further, the judge found that defendant had not demonstrated that trial counsel's conduct in this regard fell outside the range of professionally competent assistance required by Strickland and Fritz or how he was prejudiced as a result of counsel's performance.
Judge Subryan further noted that defendant had not demonstrated how defense counsel's cross-examination of McGriff was insufficiently "forceful" or how a more forceful examination would have affected the result.*fn4 Similarly, the judge found defendant's "bare contention" that counsel failed to object or "fight harder" regarding the instruction to the jury following its question on accomplice liability provided an insufficient basis for relief, since defendant did not specify what objection should have been raised, how counsel should have fought, or how counsel's conduct rendered defendant's trial unfair.
The judge then rejected defendant's contention that trial counsel had failed to discuss discovery with him, noting that defendant had not demonstrated any prejudice as a result. He additionally rejected defendant's claim of ineffectiveness based upon counsel's failure to challenge defendant's statement to the police as involuntary. Insofar as defendant claimed incapacity, defendant had not specified the nature of that incapacity nor established its extent. Insofar as defendant's argument could be construed as alleging coercion by the police, that argument was contrary to defendant's position at trial that he had voluntarily presented himself to the police and had cooperated thereafter by waiving his Miranda rights and offering a statement.
Judge Subryan also rejected defendant's claim that trial counsel had failed to investigate all defenses, noting that defendant had not specified what defenses could have been offered that were not. He also rejected defendant's argument that counsel had failed to investigate all potential witnesses, noting that, even now, defendant was unable to provide the identity of "Peaches" and that he had not specified the nature of the testimony that he anticipated either Peaches or the other proposed witness, Felicia Hargrove, would have supplied that would have undermined defendant's own statements to the police and at trial. Further, there was no evidence presented that defendant had supplied the names of the two proposed witnesses to trial counsel before trial took place.
In addition to the foregoing, defendant claimed before the trial court that appellate counsel was ineffective because he did not argue that the verdict was against the weight of the evidence. The judge did not address this claim in his written opinion. However, he did so at oral argument, stating:
Mr. McGraw was identified at the scene by Jackie McGriff. He gave a statement to the police in which he admitted being at the scene. In his statement, he said they went there to administer a 31-second beat down to Mr. Carter. He said he didn't have a gun. He was charged as an accomplice.
He gave a statement placing himself at the scene. McGriff - Jackie McGriff identified him. She went to school with him.*fn5 Identified him as one of the three persons who she saw with a gun going into the [Island] Bar.
Against the weight of the evidence? This jury had overwhelming evidence in which to convict him.
I [pre]sided over this trial, Counsel.
Following our review of the record, the arguments of counsel and applicable precedent, we affirm the denial of PCR substantially for the reasons set forth by Judge Subryan in his extensive written opinion. In doing so, we perceive no cumulative error to have occurred. Additionally, we find no reason for an evidentiary hearing, having agreed with Judge Subryan's determination that defendant failed to present a prima facie case.