State of New Jersey v. Gregory Gibbs

• Court: New Jersey Superior Court Appellate Division
• Decided: December 5, 2024
• Docket: A-3415-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3415-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY GIBBS, a/k/a GREG NICE,

Defendant-Appellant. ____________________________

Submitted October 16, 2024 – Decided December 5, 2024

Before Judges Gilson and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-07-1963.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

William E. Reynolds, Atlantic County Prosecutor, attorney for respondent (Linda A. Shashoua and Courtney Cittadini, Section Chief, on the brief).

PER CURIAM Defendant Gregory Gibbs was convicted of murder and related offenses;

he was then sentenced to life in prison. He appeals from a May 18, 2023 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. For the reasons explained in this opinion, we affirm.

I.

On December 3, 2012, C. Smith was shot and killed. A jury convicted

defendant of the first-degree murder of Smith, N.J.S.A. 2C:11-3(a)(1), (2);

second-degree possession of a handgun for an unlawful purpose, N.J.S.A.

2C:39-4(a); and second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b). In a bifurcated proceeding, defendant was convicted of second-

degree certain persons not to have a weapon because of a prior criminal

conviction, N.J.S.A. 2C:39-7.

On the murder conviction, defendant was sentenced to life in prison with

periods of parole ineligibility and parole supervision as prescribed by the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the conviction for unlawful

possession of a handgun, defendant was sentenced to a consecutive, extended

term of twenty years in prison, with ten years of parole ineligibility as prescribed

by the Graves Act, N.J.S.A. 2C:43-6. Defendant's conviction for possession of

a handgun for an unlawful purpose was merged with his murder conviction, and

A-3415-22 2 on the certain persons conviction, he was sentenced to a concurrent prison term

of ten years with five years of parole ineligibility.

On direct appeal, we affirmed defendant's convictions but remanded for

resentencing because the trial court had not adequately explained the reasons for

the consecutive sentences. State v. Gibbs, No. A-5792-13 (App. Div. Mar. 8,

2016). At the resentencing, defendant was again sentenced to life in prison

subject to NERA on the murder conviction. Defendant was also sentenced to

the same prison terms on the convictions for unlawful possession of a handgun

and certain persons, but his sentences were run concurrent to his murder

sentence. Shortly thereafter, the Supreme Court denied defendant's petition for

certification. State v. Gibbs, 226 N.J. 212 (2016).

In July 2016, defendant, representing himself, filed a PCR petition. In his

supporting certification, defendant alleged:

(1) My trial attorney . . . did not attempt to interview/or get Tyrone Nelson to testify [on] my behalf.

(2) Tyrone Nelson would have helped me a great deal. He could have proved that the police/state misrepresented the facts he provided clarifying that I in fact was not the gunman.

(3) I attempted to have [my trial attorney] removed from my case because he was conceding I was guilty and not vigorously defending my case.

A-3415-22 3 (4) After the state rested its case, I asked [my trial attorney], to file a motion for mistrial and dismissal because the state provided [z]ero witnesses identifying me as the shooter. [My attorney], responded, "All of that will come out in the wash."

(5) My trial attorney was ineffective.

Thereafter, defendant was assigned PCR counsel, who filed a brief on his

behalf, and the first PCR judge heard arguments on defendant's petition. On

November 7, 2018, the first PCR judge issued a written opinion and order

denying defendant's petition without an evidentiary hearing.

On appeal from the November 7, 2018 order, we affirmed the decision to

deny defendant's petition based on the arguments made by his PCR counsel.

State v. Gibbs, No. A-2421-18 (App. Div. Apr. 20, 2020) (Gibbs II).

Nevertheless, we remanded part of the petition because the first PCR judge had

not considered the arguments made by defendant in his certification. Id. at 3.

In that regard, we explained: "In his certification, defendant argued that his trial

counsel failed to interview a witness and have that witness testify at trial, and

that trial counsel did not move for a mistrial or dismissal. The State

acknowledges the PCR judge did not address the merits of those contentions,

agreeing a remand is warranted." Ibid.

A-3415-22 4 On remand, the remaining parts of defendant's PCR petition were

considered by a second PCR judge. That judge allowed supplemental briefs to

be filed and heard argument from counsel. On May 18, 2023, the second PCR

judge issued a thorough written opinion and entered an order denying

defendant's PCR petition without an evidentiary hearing.

In the written opinion, the second PCR judge found that defendant had not

alleged specific facts supporting his assertion that trial counsel had been

deficient in failing to interview or investigate Nelson as a witness. The second

PCR judge went on to reason that "[t]rial counsel's decision not to call Mr.

Nelson [was] clearly a strategic choice." The judge also reasoned that even if

trial counsel's decision was based on less than a complete investigation, "the

choice can be reasonably understood as grounded in sound professional

judgment." The second PCR judge also concluded that trial counsel must have

been aware of Nelson as a potential witness and aware that Nelson had given a

pretrial statement, asserting that he had no information about the shooter.

Accordingly, the second PCR judge concluded that Nelson, even if called, could

only testify that he did not know who the shooter was and, therefore, defendant

could not prove prejudice. Thus, the PCR judge concluded that, even if the

decision to not call Nelson was not strategic, the "testimony of one witness who

A-3415-22 5 was in the company of [defendant] the entire night and left with [defendant]

after the shooting does not create the type of probability that undermines

confidence in the outcome required by the [Court], when considered with the

entirety of the admitted evidence."

In addition, the PCR judge noted that defendant's PCR investigator was

unable to contact Nelson. The second PCR judge, therefore, found that there

was "insufficient evidence regarding what Mr. Nelson would have testified to or

how it would have changed the outcome" and, thus, there was insufficient

evidence to justify an evidentiary hearing.

II.

On this second appeal concerning his PCR petition, defendant argues:

THE COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING WHERE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF TRIAL COUNSEL'S FAILURE TO CALL TYRONE NELSON AS A WITNESS.

When a PCR court does not conduct an evidentiary hearing, appellate

courts review the denial of a PCR petition de novo. State v. Harris, 181 N.J.

391, 420-21 (2004); State v. Lawrence, 463 N.J. Super. 518, 522 (App. Div.

2020). A PCR court's decision to proceed without an evidentiary hearing is

reviewed for an abuse of discretion. State v. Vanness, 474 N.J. Super. 609, 623

A-3415-22 6 (App. Div. 2023) (citing State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.

2013)).

To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-prong Strickland test: (1) "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment[,]" and (2) "the deficient performance prejudiced the

defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). See also State

v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-prong Strickland test in New

Jersey). Under prong one, a defendant must establish that "counsel's

representation fell below an objective standard of reasonableness." Strickland,

466 U.S. at 688. Under prong two, a defendant must demonstrate "a reasonable

probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694.

A petitioner is not automatically entitled to an evidentiary hearing merely

by filing for PCR. State v. Porter, 216 N.J. 343, 355 (2013); State v. Cummings,

321 N.J. Super. 154, 170 (App. Div. 1999). Rule 3:22-10(b) provides that a

defendant is entitled to an evidentiary hearing on a PCR petition only if : (1) he

or she establishes "a prima facie case in support of [PCR]," (2) "there are

material issues of disputed fact that cannot be resolved by reference to the

A-3415-22 7 existing record," and (3) "an evidentiary hearing is necessary to resolve the

claims for relief." Porter, 216 N.J. at 354 (alteration in original) (quoting R.

3:22-10(b)). In making that showing, a defendant must "demonstrate a

reasonable likelihood that his or her claim will ultimately succeed on the

merits." State v. Marshall, 148 N.J. 89, 158 (1997); see also R. 3:22-10(b).

Thus, to obtain an evidentiary hearing on a PCR petition based upon claims of

ineffective assistance of counsel, a defendant must make a showing of both

deficient performance and actual prejudice. State v. Preciose, 129 N.J. 451, 463-

64 (1992).

III.

Initially, we clarify the limited scope of our remand in Gibbs II. On

remand, defendant attempted to add new contentions concerning his trial court

counsel's ineffective assistance. In that regard, defendant added claims that his

trial counsel should have called three witnesses in addition to Nelson.

Defendant also sought to expand the arguments concerning trial counsel's failure

to seek a mistrial on additional grounds. The second PCR judge correctly ruled

that none of those new contentions were properly before the court because they

were not set forth in defendant's certifications filed before we made our decision

in Gibbs II.

A-3415-22 8 Nevertheless, the second PCR judge analyzed the new contentions and

found that they did not establish a prima facie showing of ineffective assistance

of trial counsel. Having conducted a de novo review, we agree with the second

PCR judge and affirm the decision concerning defendant's new arguments for

the reasons explained in the judge's written opinion.

We also affirm the second PCR judge's denial of defendant's petition

based on the claim of ineffective assistance of counsel for failing to make a

motion for a mistrial. Our de novo review convinces us that defendant failed to

establish a prima facie showing of ineffective assistance of counsel on the

contentions concerning the failure to move for a mistrial.

IV.

That leaves us with one remaining issue: whether defendant established

a prima facie showing warranting an evidentiary hearing on his claim that trial

counsel was ineffective for not calling Tyrone Nelson. Having also conducted

a de novo review of that issue, we affirm because defendant made no showing

of prejudice.

In our opinion on defendant's direct appeal, we summarized the relevant

facts established at trial. Gibbs, slip op. at 3-7. We summarize some of those

facts here to put Nelson's relevance into context.

A-3415-22 9 Smith was shot in the back several times in the parking lot of a bar in

Pleasantville. Lieutenant Justin Furman of the Atlantic County Prosecutor's

Office (ACPO), and other members of the homicide unit, responded to the bar

shortly after the shooting. Law enforcement personnel obtained video footage

from surveillance cameras capturing the shooting in the parking lot, as well as

the movements of Smith and defendant inside the bar before the shooting. The

video in the parking lot showed Smith leaving the bar through the rear door.

Smith then walked past defendant who was standing with two other men, one of

whom was Nelson. The shooting occurred when a male wearing a distinctive

jacket shot Smith in the back. The shooter then left the parking lot in a Ford

Explorer.

When law enforcement personnel interviewed the people who were seen

with defendant in the parking lot, none of them identified defendant as the

shooter. Furman testified before the grand jury and recounted the statement he

had taken from Nelson. In that regard, Furman testified: "When I spoke to Mr.

Nelson, he told me that although he was standing right there at the time of the

shooting, he had no information pertaining to the shooting. However, he did tell

me that right after the shooting he got in his friend, Gregory [Gibbs's] Ford

A-3415-22 10 Explorer and left the area. He identified Gregory Gibbs as the driver of that

Explorer."

At trial, the jury reviewed a composite of the surveillance videos, as well

as still photographs taken from the video footage. The jury also heard testimony

that defendant had distinctive tattoos on his face and hands. The State also

presented evidence that defendant's girlfriend owned a green Ford Explorer,

which was like the Ford Explorer seen in the footage from the surveillance

video. In addition, the State presented evidence that it had recovered the

distinctive jacket in defendant's girlfriend's Ford Explorer.

Given the testimony at trial and the testimony at the grand jury

proceedings, the question is whether Nelson's testimony could have been

material and whether it might have changed the outcome of the trial. The second

PCR judge found that defendant had not made a prima facie showing of either

prong of the Strickland test concerning the failure to call Nelson as a witness at

trial. We do not agree with the second judge's findings concerning trial counsel's

strategies for not calling Nelson because those findings were made on a record

that does not clearly establish trial counsel's strategic thinking. We do, however,

agree that defendant established no prejudice. In that regard, defendant did not

A-3415-22 11 demonstrate a reasonable probability that, but for counsel not calling Nelson as

a witness, the results of the criminal trial would have been different.

To prevail on a PCR petition, a defendant must establish both prongs of

the Strickland standard. Strickland, 466 U.S. at 687; State v. Nash, 212 N.J.

518, 542 (2013). A failure to satisfy either prong of the Strickland standard

requires the denial of a PCR petition based on an ineffective assistance of

counsel claim. Strickland, 466 U.S. at 700. "With respect to both prongs of the

Strickland test, a defendant asserting ineffective assistance of counsel on PCR

bears the burden of proving his or her right to relief by a preponderance of the

evidence." State v. Gaitan, 209 N.J. 339, 350 (2012) (citations omitted).

Defendant did not obtain a certification or affidavit from Nelson stating

what Nelson would have testified to had he been called as a witness at trial.

Indeed, the record establishes that on remand, defendant's PCR counsel hired an

investigator to try to find Nelson, but the investigator could not locate him.

"Any factual assertion that provides the predicate for a claim of relief must be

made by an affidavit or certification pursuant to Rule 1:4-4 and based upon

personal knowledge of the declarant[.]" R. 3:22-10(c). As discussed, defendant

has not established that Nelson's testimony was material or would have changed

the outcome of the trial. Accordingly, defendant's claims about the failure to

A-3415-22 12 call Nelson were merely "bald assertions." See Cummings, 321 N.J. Super. at

170 (explaining that "to establish a prima facie claim, a petitioner must do more

than make bald assertions that he was denied the effective assistance of

counsel"). See also Marshall, 148 N.J. at 158 (holding that "vague, conclusory,

or speculative" allegations do not warrant relief).

Moreover, defendant did not certify what Nelson would have testified to

had he been called as a witness at trial. The only testimony in the record is

Furman's testimony before the grand jury. Furman testified that Nelson had no

information concerning the shooting. Thus, defendant is effectively asking us

to speculate that if Nelson was located, and if he now testified, he would testify

to something different than what he told Furman. In short, defendant has failed

to demonstrate a reasonable likelihood that his claim that trial counsel was

ineffective in failing to call Nelson would succeed on the merits. See ibid.; see

also R. 3:22-10(b).

In summary, in Gibbs II and in this opinion, we have now reviewed all of

defendant's contentions in his original PCR petition. Following our remand in

Gibbs II, defendant failed to prove that he suffered any prejudice concerning the

A-3415-22 13 failure of his trial counsel to call Nelson as a witness at trial. Accordingly, we

affirm the denial of all of defendant's claims in his PCR petition.

Affirmed.

A-3415-22 14