On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 80-00-2540.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2010
Before Judges Miniman and Waugh.
Defendant Raymond Grice appeals the denial of his petition for post conviction relief (PCR). We reverse and remand for an evidentiary hearing.
We discern the following facts and procedural history from the record.
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.
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 ...