State of New Jersey v. Jermaine Bryant ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3777-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE BRYANT, a/k/a
TWIN "COUNTRY,"
Defendant-Appellant.
_________________________
Submitted April 8, 2024 – Decided April 23, 2024
Before Judges Sabatino and Vinci.
On Appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 93-03-1078.
Jennifer Nicole Selitti, Public Defender, attorney for
appellant (Austin J. Howard, Assistant Deputy Public
Defender, of counsel and on the briefs).
Theodore N. Stephens, II, Essex County Prosecutor,
attorney for respondent (Braden Bendon Couch,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jermaine L. Bryant appeals from the Law Division's March 26,
2021 order denying his motion for ballistics testing. We affirm.
We discern the following facts from the record. Defendant, after waiver
of jurisdiction by the Family Part, was found guilty of murder, N.J.S.A. 2C:11 -
3(a)(1) and (2); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1);
third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1); and
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a). He was sentenced to a term of life imprisonment with a thirty-five-year
period of parole ineligibility. His conviction was affirmed on direct appeal.
State v. Bryant, 288 N.J. Super. 27 (App. Div. 1996), certif. denied, 144 N.J.
589 (1996).
We adopt the factual recitation set forth in our opinion on defendant's
direct appeal.
The facts were hotly contested at trial. On November
11, 1992, Michael and Mitchell Saunders visited their
uncle, Charles, at his Newark apartment. In the course
of their conversation, Charles, who was superintendent
of the apartment building, mentioned that he had been
having problems with defendant. Defendant, who was
then sixteen years old, resided in the building with his
mother, Mary Manigo.
Following their visit, the Saunders brothers confronted
defendant, who was standing in the front of the
building. Defendant responded that he had no difficulty
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with Charles. He then left the two men, entered his
apartment, and returned with his mother, who stopped
a passing police car. The police officer told Charles to
direct his nephews to leave. Believing that the
argument had been defused, the officer then departed.
Shortly after the police officer left the scene, a fistfight
erupted between Clarence Roundtree, a friend of
defendant, and the Saunders brothers. It was
undisputed that the fight ended quickly and
inconclusively.
During the altercation, defendant entered his apartment
and emerged with a rifle. From the landing in front of
the apartment building, defendant fired at least one shot
in the air, at which point the gun jammed. While
defendant attempted to engage the trigger mechanism,
Roundtree took the rifle from him and pointed it at the
Saunders brothers. Roundtree unsuccessfully
attempted to fire the weapon. Defendant then grabbed
the rifle from Roundtree's hands and fired at least one
more shot in the air.
The State's witnesses gave sharply differing accounts
concerning what happened next. Michael Saunders
testified that he and his brother ran to their car and
attempted to enter it. While running to the car, Mitchell
reached his hands into his pants pockets to remove his
car keys. As Mitchell was opening the driver's door,
defendant shot him in the chest. The bullet pierced his
heart and aorta and caused his chest cavity to fill with
blood, ultimately killing him. Upon seeing his brother
fall, Michael ran around the car in an effort to reach his
uncle's apartment. As Michael passed the car door,
defendant shot him once in the shoulder, the bullet
piercing his lung. Defendant then fled from the scene.
The police were immediately summoned, and both
victims were transported to the hospital. In a statement
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given in the emergency room, Michael recounted that
his brother had been running toward the defendant
when he was shot and that the two had been involved in
an ongoing dispute.
Diamond Burchett, who lived next door, largely
corroborated Michael's account of the shooting,
although he never saw Roundtree with the weapon. He
did state, however, that when the gun jammed, one of
the Saunders brothers remarked to defendant that he
was not "shooting nothing but blanks." Burchett also
testified that one of the Saunders brothers was moving
toward defendant when he was shot.
Mary Manigo testified that after defendant had
retrieved the gun, he fired several warning shots in the
air. She claimed that, notwithstanding these shots, the
victims continued to approach defendant while
reaching into their pants pockets. In the witness's
words, the Saunders brothers "kept walking like
zombies[,] like they couldn't be touched" by bullets.
According to Manigo, defendant shot Michael first in
the shoulder, and then Roundtree grabbed the gun and
killed Mitchell.
[Id. at 31-33.]
On September 15, 1997, defendant filed his first petition for post-
conviction relief (PCR), which the trial court denied. We affirmed that denial.
State v. Bryant, No. A-3571-99 (App. Div. Mar. 6, 2001). The Supreme Court
denied defendant's petition for certification. 169 N.J. 607 (2001).
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On October 6, 2005, and April 24, 2006, defendant filed his second and
third PCR petitions, which the trial court denied by order of July 25, 2006.
Defendant did not appeal from the denial of those petitions.
On August 8, 2006, defendant filed a fourth petition for PCR, which the
trial court denied on October 13, 2006. Defendant moved for reconsideration,
which was denied. In its decision denying reconsideration, the court noted
defendant argued "that the State . . . engaged in prosecutorial misconduct by
virtue of its alleged failure to provide a [b]allistic[s] [r]eport which purportedly
states the crime was committed with a [.]22 caliber revolver" whereas "the
State's case was premised on the possession of a rifle or a shotgun." We affirmed
the denial of PCR. State v. Bryant, No. A-6274-05 (App. Div. Dec. 14, 2007).
The Supreme Court denied defendant's petition for certification. 194 N.J. 272(2008).
On January 11, 2007, defendant moved for a new juvenile waiver hearing,
which the trial court also denied. Defendant again argued the ballistics report
constituted new evidence that showed the "decedent's death was caused by a
[.]22 caliber revolver." We affirmed the court's denial of defendant's motion.
State v. Bryant, No. A-5129-06 (App. Div. Sept. 24, 2008). The Supreme Court
denied defendant's petition for certification. 198 N.J. 312 (2009).
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On August 4, 2009, defendant filed a fifth petition for PCR. On March 3,
2010, the court denied defendant's petition as time-barred. The judge also
concluded that "even if [defendant's] petition was not time-barred, the
underlying issue of [his] petition could have been, and actually was raised in a
prior proceeding." The court found defendant's "request for performance of
ballistic[s] testing [was] subsumed under [defendant's] fourth . . . PCR petition,
alleging 'newly discovered evidence' of a . . . ballistic[s] report which
supposedly stated that [the] victim's death was caused by a .22 caliber revolver."
The court also found "even if [defendant] had not raised this issue in a previous
proceeding, the issue certainly could have been reasonably raised on direct
appeal, or other prior proceedings, [because] the evidence . . . was obtained and
available in 1993 and 1994 . . . ."
On appeal, defendant argued the court "erred when it dismissed [his]
motion for performance of forensic and ballistic[s] testing . . . ." We affirmed
the denial of PCR. State v. Bryant, No. A-3298-09 (App. Div. June 16, 2011).
The Supreme Court denied defendant's petition for certification. 209 N.J. 98(2012).
In 2013, defendant filed a motion to correct an illegal sentence, which was
denied. We affirmed the court's denial of defendant's motion. State v. Usry,
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No. A-2560-13 (App. Div. Mar. 22, 2016). The Supreme Court denied
defendant's petition for certification. 226 N.J. 213 (2016).
In 2016, defendant filed a motion for a new trial arguing again that the
State knowingly withheld discovery in 1993. On February 29, 2016, the court
denied that motion. On June 29, 2016, defendant filed his sixth petition for
PCR. On December 16, 2016, the court denied the petition for PCR.
On September 26, 2017, defendant filed a motion to correct an illegal
sentence that is, in part, the subject of this appeal. In support of his motion,
defendant argued, "[t]he [t]rial [c]ourt[']s prior ruling concludes that these issues
should [have] been raised at trial[:] . . . [c]ounsel['s] failure to obtain the
[m]edical report/[b]allistic[s] [r]eport prior to trial."
On November 8, 2019, the court entered an order denying defendant's
motion. We vacated that order based on our Supreme Court's decision in State
v. Comer, 249 N.J. 359 (2022), and remanded for resentencing. State v. Bryant,
No. A-1547-19 (App. Div. Mar. 7, 2022).
On September 24, 2018, defendant filed a pro se motion to correct an
illegal sentence based on an alleged Brady1 violation that is also the subject of
this appeal. He requested "[b]allistic[s] [t]esting . . . be conducted to establish
1
Brady v. Maryland, 373 U.S. 83 (1963).
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the facts that lay [outside] of the court[']s records, that the 12[-]gauge
shotgun/rifle [cannot] shoot [.]22[][c]aliber [b]ullets and [the State's ballistics
expert] provide his findings to the [p]rosecutor . . . that the weapon in possession
is not the murder weapon."
By order entered March 26, 2021, the court denied defendant's motion for
ballistics testing supported by a written opinion. The court found defendant's
request for ballistics testing was litigated previously and lacked merit. The court
noted "[t]he record does not disclose the slightest hint that this case, in which
witnesses testified that two shooters possessed the same weapon at different
times, and in which [defendant's] own mother testified that both victims were
shot with the same weapon but by different individuals, would have been
materially altered by evidence relating to the caliber of the weapon used." This
appeal followed.
Defendant presents the following arguments for our consideration:
POINT I: THE PCR COURT ERRED IN DENYING
DEFENDANT'S PCR PETITION WITHOUT AN
EVIDENTIARY HEARING AND WITHOUT
EVEN ADDRESSING HIS CLAIM THAT HIS
TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE.
A. PCR Procedural Rules Do Not Bar Review
Because Trial Counsel's Failure to Investigate
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and Present Critical Evidence Constitutes a
Fundamental Injustice
B. Defendant Was Entitled to an Evidentiary
Hearing and PCR Counsel Because He
Established a Prima Facie Case of Ineffective
Assistance of His Trial Counsel and "Good
Cause" for PCR Counsel.
1. Trial Counsel's Failure to Investigate
the Alleged Murder Weapon and Other
Third-Party-Guilt Evidence Was
Objectively Unreasonable.
2. Trial Counsel's Failure to Use Existing
Evidence to Challenge the State's
Theory that Defendant Was the Sole
Shooter Was Objectively
Unreasonable.
3. Trial Counsel's Deficient Performance
Prejudiced the Defense and Denied
Defendant a Fair Trial.
Specifically, defendant contends, based solely on his assertion in his
September 24, 2018 letter brief, the firearm he used on November 11, 1992, was
a 12-gauge shotgun, and was not capable of firing the .22 caliber bullets that
injured Michael and killed Mitchell. Based on that premise, defendant argues
defense counsel was ineffective because counsel failed to establish through
ballistics testing defendant's firearm was not capable of firing .22 caliber bullets
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and should have pursued a defense based on third-party guilt instead of self-
defense.2
We affirm the denial of defendant's motion for ballistics testing for the
reasons set forth in the court's March 26, 2021 written opinion. We add the
following comments.
We are not persuaded by defendant's contention that the court failed to
address the arguments raised in his September 26, 2017, and September 24, 2018
motions as a petition for PCR. Except for the alleged failure to obtain a ballistics
report, the ineffective assistance of counsel arguments defendant advances on
appeal were not raised in his briefs and were not presented as a petition for PCR.
Generally, issues raised for the first time on appeal need not be considered
because they "never were subjected to the rigors of an adversary hearing,
and . . . [their] legal propriety never was ruled on by the trial court . . . ." State
v. Robinson, 200 N.J. 1, 18-19 (2009). We have nevertheless considered
defendant's arguments and are not convinced.
2
The firearm used was never recovered and, therefore, cannot be subjected to
ballistics testing. The "ballistics testing" defendant requests is essentially an
expert opinion that .22 caliber bullets cannot be fired from a 12-gauge shotgun.
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We review the denial of PCR without an evidentiary hearing de novo.
State v. Harris, 181 N.J. 391, 421 (2004). 3
A defendant bears the burden of establishing a prima facie claim. State v.
Gaitan, 209 N.J. 339, 350 (2012). A defendant must "do more than make bald
assertions that he was denied the effective assistance of counsel" to establish a
prima facie claim. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). "The failure to raise unsuccessful legal arguments does not constitute
ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990).
An evidentiary hearing is warranted only when "'a defendant has presented a
prima facie [claim] in support of [PCR],'" meaning a "defendant must
demonstrate a reasonable likelihood that his . . . claim will ultimately succeed
on the merits." State v. Marshall, 148 N.J. 89, 158-59 (1997) (quoting State v.
Preciose, 129 N.J. 451, 462-63 (1992)).
3
To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the two-pronged test formulated in Strickland v. Washington, 466
U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987), first by "showing that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment," then by proving he suffered prejudice due to counsel's deficient
performance, Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 52.
Defendant must show by a "reasonable probability" that the deficient
performance affected the outcome of the proceeding. Fritz, 105 N.J. at 58.
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Rule 3:22-4(b)(1) provides, in relevant part, "[a] second or subsequent
petition for [PCR] shall be dismissed unless . . . it is timely under R[ule] 3:22-
12(a)(2) . . . ." Rule 3:22-12(a)(2) provides:
Notwithstanding any other provision in this rule, no
second or subsequent petition shall be filed more than
one year after . . . the date on which the factual
predicate for the relief sought was discovered, if that
factual predicate could not have been discovered earlier
through the exercise of reasonable diligence . . . .
Rule 1:3-4(c) provides "[n]either the parties nor the court may . . . enlarge
the time specified by . . . R[ule] 3:22-12 . . . ." "The 'time limitations' in Rule
3:22-12 'hence are not subject to the relaxation provision of Rule 1:1-2.' Thus,
enlargement of Rule 3:22-12's time limits 'is absolutely prohibited.'" State v.
Jackson, 454 N.J. Super. 284, 292 (App. Div. 2018) (citation omitted) (citing
Aujero v. Cirelli, 110 N.J. 566, 577 (1988)). In addition, "[a] petitioner is
generally barred from presenting a claim on PCR that could have been raised at
trial or on direct appeal, R[ule] 3:22-4(a), or that has been previously litigated,
R[ule] 3:22-5." State v. Nash, 212 N.J. 518, 546 (2013).
We have carefully reviewed defendant's arguments and conclude the
issues were either raised or could have been raised in prior proceedings, and
have been raised more than one year after the factual predicate for the relief
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sought was discovered. Defendant's arguments, therefore, are precluded. R.
3:22-4, R. 3:22-5, and R. 3:22-12(a).
Even if defendant's claims were not precluded, we conclude they lack
merit. Several trial witnesses testified defendant was in possession of a .22
caliber rifle and fired shots from that rifle. The witnesses also testified
defendant and Roundtree used a single firearm to shoot Michael and kill
Mitchell. In addition, the June 10, 1993 ballistics laboratory report established
the victims were shot with .22 caliber bullets discharged from the same firearm,
and the only spent shell casings recovered at the scene were .22 caliber. The
firearm itself was never located. The only support for defendant's claim that the
weapon he used was a 12-gauge shotgun is his own self-serving statement.
Defendant's claim of ineffective assistance of counsel fails both prongs of
Strickland. Considering the evidence presented at trial, there was no basis for
defense counsel to obtain a ballistics report relating to a 12-gauge shotgun
because there was no evidence indicating defendant was in possession of or fired
a firearm other than a .22 caliber rifle. Based on the same trial evidence, as the
trial court determined, there is no reason to conclude such a report would have
affected the outcome of the proceedings. Because defendant did not establish a
prima facie case of ineffective assistance, the trial court did not abuse its
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discretion by denying defendant's request for an evidentiary hearing or ballistics
testing.
To the extent we have not addressed any remaining arguments, it is
because they lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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