February 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY GRANT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 01-04-0697.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012
Before Judges Messano and Yannotti.
Defendant Jeffrey Grant appeals from an order entered by the Law Division on February 19, 2010, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged by a Monmouth County grand jury with first-degree murder of his estranged wife, Theresa, contrary to N.J.S.A. 2C:11-3; third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d), and four counts of witness tampering, contrary to N.J.S.A. 2C:28-5. Defendant was tried before a jury.
At the trial, the State presented evidence which established that on August 21, 2000, defendant drove from his residence in Middletown, Pennsylvania to a fast-food restaurant in Millstone, New Jersey, where Theresa worked. Defendant arrived late in the afternoon and waited in the parking lot, looking for his wife through binoculars. When Theresa emerged from the restaurant, defendant confronted her. They argued and he stabbed Theresa numerous times, puncturing both of her lungs. Theresa was taken by ambulance to a hospital, where she died.
Defendant returned to his home. He called his eighteen-year-old daughter, Patricia, and told her he had stabbed her mother but she was fine. Defendant then spoke with this twelve-year-old son and said he stabbed Theresa once with a "tiny pocket knife." Defendant told his son and daughter that he needed an alibi and they should tell the police that he was with Patricia at the time Theresa was attacked.
When the police arrived at defendant's home, they informed him of his Miranda*fn1 rights. Defendant initially denied involvement in the stabbing of his wife. The police told defendant that witnesses at the scene had identified him and his car. Defendant became angry and told the police to speak to his daughter. When the police interviewed Patricia, she initially corroborated defendant's story.
The police seized a number of items from defendant's car, including his glasses, a plastic garbage bag and a pair of gloves. Portions of the interior of the car were seized and tested. DNA from the blood stains in the car matched Theresa's DNA. Defendant was arrested. Thereafter, defendant communicated with Patricia and told her to continue telling the police her false alibi story. Patricia later called the police and told them that she had lied.
The trial court dismissed one witness tampering charge, and the jury found defendant guilty of all the remaining charges. Defendant was sentenced to an aggregate term of thirty-four years of incarceration, with a thirty-year period of parole ineligibility. Defendant appealed and raised the following arguments:
DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO SEEK TO SEVER THE COUNTS OF WITNESS TAMPERING FROM THE MURDER AND WEAPON POSSESSION COUNTS (Not Raised Below).
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A JURY INSTRUCTION ON AGGRAVATED MANSLAUGHTER (Not Raised Below).
We affirmed defendant's conviction in an unpublished opinion. State v. Grant, No. A-4949-02 (March 21, 2005). Defendant thereafter sought review of our judgment by filing a petition for certification with the Supreme Court. The Court denied the petition. State v. Grant, 183 N.J. 591 (2005).
On May 8, 2008, defendant filed a pro se PCR petition in the trial court. He alleged that he was denied the effective assistance of counsel because his attorney did not present a diminished capacity defense at trial. The court appointed PCR counsel, who filed a brief in which he argued that the court rules did not preclude defendant from raising the issues set forth in his PCR petition; defendant had been denied the effective assistance of counsel because his attorney failed to properly investigate or prepare a diminished capacity defense; and a new trial should be ordered because of the "accumulation of errors."
The court considered the petition on February 19, 2010, and placed its decision on the record on that date. The court concluded that defendant's petition was barred by Rule 3:22-12(a) because it had not been filed within five years of the date of the judgment of conviction, and defendant had not established that his failure to file a timely petition was due to excusable neglect. The court nevertheless considered the petition on the merits and determined that defendant had not been denied the effective assistance of counsel. The court entered an order dated February 19, 2010, denying PCR. This appeal followed.
Defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUSNEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT WAS DENIED ADEQUATE LEGAL REPRESENTATION AT TRIAL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO PURSUE THE ONLY VIABLE DEFENSE ON HIS BEHALF.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.
We turn first to defendant's contention that the PCR court erred by finding his petition was barred by Rule 3:22-12(a). We disagree.
At the time defendant filed his petition, Rule 3:22-12(a) provided that a PCR petition may not be filed more than five years after the date of entry of the judgment.*fn2 The rule further provided that this procedural bar could be overcome if the petition alleged facts showing that the delay was due to the defendant's excusable neglect. Ibid.
Defendant's judgment of conviction was entered on April 4, 2003. Defendant did not file his PCR petition until May 8, 2008. Defendant failed to allege facts indicating that his failure to file a timely petition was due to excusable neglect. Defendant also failed to allege facts which, if true, indicated that enforcement of five-year time bar would result in a fundamental injustice.
Defendant argues, however, that the PCR court should have accepted his attorney's representation at oral argument that defendant's failure to file a timely petition was due to his medical condition and the treatment he was receiving. Counsel did not, however, have personal knowledge of these alleged facts, and defendant did not submit a certification or affidavit to establish those facts.
Moreover, the evidence before the PCR court indicated that, while defendant had been diagnosed with non-Hodgkins lymphoma in 1996, the illness had been in remission for substantial periods of time thereafter. Accordingly, the court correctly determined that defendant failed to establish excusable neglect for his failure to file a PCR petition within the time prescribed by Rule 3:22-12(a).
The court nevertheless considered defendant's petition on the merits. Defendant argues that the court erred by finding that he had not established a prima facie case of ineffective assistance of counsel. Again, we disagree.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant first must establish that his attorney's performance was deficient. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). To do so, the defendant must show that his attorney's handling of the case "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A defendant also must establish that his attorney's deficient performance prejudiced his defense. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). To meet this part of the test, a defendant must show that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Defendant argues that his attorney was deficient because he
failed to assert a diminished capacity defense. To establish this defense, there must be evidence that the defendant has a mental disease or defect which interferes with his cognitive ability so as to prevent the formation of the mental state required for commission of the offense. State v. Galloway, 133 N.J. 631, 647 (1993).
Here, defendant alleged that, at the time he killed his wife, he had just finished chemotherapy. He says that he remembered very little of what occurred due to the side effects of the drugs he was taking. Defendant asserts that he brought this information to the attention of his attorney, including information concerning his medications, which he claims made him "aggressive." Defendant alleges that he provided his attorney with copies of his medical records. He claims those records were sufficient to support a diminished capacity defense.
The court found no merit in these allegations. The court pointed out that defendant had not produced a report, affidavit or certification from an expert opining that his medications affected his cognitive ability to act purposely or knowingly at the time he stabbed his wife. Rather, defendant had presented a psychiatric report from Dr. Daniel P. Greenfield (Dr. Greenfield), dated August 6, 2009, in which he stated that Since it is currently not clear what types of medications and at which dose levels [defendant] had been taking during the period of time leading up to and including his slaying of his wife, . . . I am unable to develop a psychiatric/neuropsychiatric/ addiction medicine opinion - held with a degree or reasonable medical probability or any other level of probability . . . - about whether potential side effects and interactive effects of psychotropic and nonpsychotrophic medications which [defendant] may have been taking at the time, and about whether those side effects might have supported a criminal responsibility-reducing psychiatric defense (specifically, "Legal Insanity") and/or a criminal responsibility-reducing psychiatric defense (such as "Diminished Capacity" or "Intoxication"), all according to applicable State of New Jersey law, as I understand that law.
The court noted that defendant had submitted another report from Dr. Greenfield, dated December 17, 2009. In that report, Dr. Greenfield stated that, after he issued his initial report, he had attempted to contact defendant's physicians to determine whether they had prescribed psychotropic or non-psychotropic medications for defendant around the time defendant stabbed his wife. Dr. Greenfield received no reply. He concluded that no additional records would be forthcoming and reaffirmed the findings of his August 6, 2009 report.
The court additionally noted that Dr. Greenfield had performed a psychiatric evaluation of defendant. In his December 17, 2009 report, Dr. Greenfield stated that there was no indication that defendant was suffering from any severe affective disorder or symptomatology, such as severe depression, mania, or suicidality. He also stated that there was no indication that defendant had any thought disorder or psychotic process such as hallucinations, delusions, loss of associations or the like.
Based on this evidence, the court found that defendant's trial counsel was not deficient in failing to advance a diminished capacity defense. The court stated that defendant had presented "nothing to prove that experts in the psychological field believe that the kind of mental deficiency alleged by the defendant" could affect a person's cognitive faculties and his capacity to form the mental state necessary for commission of the offense.
The PCR court also stated that, while defendant claimed that he had been taking drugs that made him aggressive, our case law makes clear that a diminished capacity defense is only available when the alleged mental defect negates the mental state required for commission of the offense. The court stated that "[i]ncreased aggression cannot and does not negate the purposeful and/or knowing element of first degree murder."
The court's determination was consistent with State v. Carroll, 242 N.J. Super. 549 (App. Div. 1990), certif. denied, 127 N.J. 326 (1991). There, we noted that evidence of a mental disease or defect that produces an emotional reaction such as rage or impassioned impulse is not sufficient to support a diminished capacity defense. Id. at 558.
Defendant nevertheless argues that his trial attorney was deficient because he failed to obtain medical records regarding his medications so that he could assert "some type of diminished capacity defense." There was, however, no evidence the records contained any information that would have supported a viable diminished capacity defense.
Defendant additionally argues that his attorney erred by asserting a passion/provocation manslaughter defense. This defense requires proof of four elements: (1) "the provocation must be adequate;" (2) "the defendant must not have had time to cool off between the provocation and the slaying;" (3) "the provocation must have actually impassioned the defendant;" and (4) "the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990).
At trial, defendant testified that he went to the restaurant where Theresa worked. He parked his car and waited. He was in possession of a knife with a four or five inch long blade. When Theresa exited the restaurant and began to walk to her car, defendant jumped out of his vehicle and ran towards her. He carried the knife in his hand. Defendant approached Theresa's car. She had entered the car but the door was not closed.
Defendant told Theresa that he wanted her to attend their son's birthday party. They argued. Defendant said that he and the children wanted her to come home. According to defendant, Theresa got right "into his face." She said that he should spend time with the children because she was going to take them away and he would not see them again. Defendant testified that he "lost it" and "pushed her back." He stabbed her but testified that he did not remember doing so.
We are satisfied that, based on this evidence, counsel's decision to assert a passion/provocation manslaughter defense was not an unreasonable trial strategy. Even were we to conclude that counsel erred in pursuing this defense, defendant has not shown that he was prejudiced by the error. The jury found defendant guilty of the purposeful or knowing murder of his wife. We are not convinced the jury would have reached a different decision if counsel had not asserted a passion/provocation manslaughter defense.
Defendant further argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).