Opinion
DOCKET NO. A-4243-10T1
03-27-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUTHER THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for the respondent, (William P. Fisher, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 00-11-1283.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for the respondent, (William P. Fisher, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Luther Thomas appeals from a November 15, 2010 decision denying his petition for post-conviction relief (PCR). We affirm.
Defendant's petition concerns two separate judgments of conviction. The first conviction relates to the armed robbery of a delicatessen in Trenton on May 22, 2000. The second conviction relates to the murder of Jermaine Stephenson in Trenton three days later, on May 25, 2000. In both cases, a sawed-off shotgun was used.
On November 28, 2000, a grand jury returned a seven count indictment against defendant and James Davis for charges arising from the armed robbery of Yon's Delicatessen. Davis entered into a plea agreement with the State by which he agreed to testify against defendant in exchange for a lighter sentence. Defendant, tried alone before a jury, was found guilty on all charges, except count seven (certain persons not to possess a firearm), which was dismissed without prejudice.
The State's proofs and defendant's contentions are set forth in detail in our opinion in State v. Thomas, No. A-6763-03 (App. Div.), summarily remanded, 188 N.J. 263 (2006).
Defendant was sentenced to twenty-eight years imprisonment with thirteen years of parole ineligibility for count one (first-degree robbery), concurrent terms of eighteen months for counts three and four (aggravated assault) and nine years imprisonment for count five (possession of a weapon for an unlawful purpose). Defendant appealed his convictions and sentence and we affirmed. The Supreme Court granted defendant's petition for certification and summarily remanded the matter to the trial court for re-sentencing pursuant to State v. Pierce, 188 N.J. 155 (2006).
Count two was merged into count one and count six was merged into count five.
On February 9, 2001, a grand jury returned a six count indictment against defendant for charges arising from the murder of Jermaine Stephenson. During the trial the State presented the testimony of two eyewitnesses who identified defendant as the shooter. Counts two and three were dismissed following the State's case-in-chief. The jury found defendant guilty on count one (first-degree murder), four (second-degree possession of a weapon for an unlawful purpose), and five (third-degree possession of a sawed-off shotgun). Count six (second-degree certain persons not to possess a firearm) was held in abeyance pending defendant's appeal of his prior conviction.
The State's proofs and defendant's contentions are set forth in detail in our opinion in State v. Thomas, No. A-2191-04 (App. Div. November 1, 2006), certif. denied, 189 N.J. 427 (2007).
Defendant was sentenced to life imprisonment for the first-degree murder conviction with thirty-five years of parole ineligibility, to be served consecutively with his robbery conviction and a ten-year concurrent sentence for his conviction for possession of a weapon for an unlawful purpose. Defendant appealed his convictions and sentence and we affirmed. The Supreme Court denied defendant's petition for certification.
Count five was merged into count four.
On May 29, 2008, defendant filed a PCR petition. Judge Edward M. Neafsey heard oral argument on defendant's PCR petition and issued an oral opinion denying relief.
On this appeal, defendant raises the following arguments:
ISSUE I: INDICTMENT NUMBER 00-11-1283 MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED THAT THE CO-DEFENDANT TESTIFIED FOR THE STATE IN PRISON GARB, THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
ISSUE II: DEFENDANT'S CONVICTIONS AS TO INDICTMENT NUMBER 01-02-0173 MUST BE REVERSED DUE TO TRIAL, APPELLATE AND PCR COUNSELS' INEFFECTIVENESS; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS WAS ESTABLISHED.
A. Trial, Appellate and PCR Counsel Failed to Raise The Issue of A Limiting Instruction Regarding Defendant's Allegedly Having Participated In A Drug Transaction.
B. Trial Counsel Failed To Object To And Elicited Additional Testimony That Defendant Had Been "In Confinement" And Failed To Request A Limiting Transaction [sic] As To Defendant's
Confinement; Appellate Counsel Failed to Raise These Issues On Direct Appeal.
C. The Cumulative Errors Mandate That Defendant's Convictions Be Reversed Or That He Be Afforded An Evidentiary Hearing.
Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Neafsey in his thorough oral opinion. We add the following comments.
At his armed robbery trial, defendant contends Davis testified for the State while wearing prison garb, thereby violating his right to a fair trial. Judge Neafsey rejected defendant's argument for lack of proof that Davis was actually wearing prison garb at trial. We find nothing in the record indicating Judge Neafsey was incorrect in his conclusion. We do note that as a general rule, prosecution witnesses should not appear at trial wearing prison garb. State v. Kuchera, 198 N.J. 482 (2009). However, this rule, promulgated by our Supreme Court in Kuchera in 2009, does not apply retroactively. State v. Dock, 205 N.J. 237, 259 (2011). Thus, the rule does not apply to defendant's convictions arising from the robbery, as he exhausted his direct appeals in 2006, several years prior to Kuchera.
Even if Kuchera did apply, Davis testifying in prison garb would constitute harmless error (just as the Supreme Court found in Kuchera). During his opening, defendant's attorney attacked Davis's credibility on the basis that Davis "agreed to plead guilty and testify against [defendant] for a reduced sentence."
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We find defendant's claims of ineffective assistance of counsel regarding his murder conviction equally unconvincing.
To establish a prima facie case for ineffective assistance of counsel, the defendant must show: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced the defendant to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Prejudice means "a reasonable probability" the deficient performance "materially contributed to defendant's conviction." Fritz, supra, 105 N.J. at 58.
A defendant should receive an evidentiary hearing "[w]here asserted facts in support of [the] prima facie [PCR] claim[s] . . . are outside the record." State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006) (internal quotation marks omitted), certif. denied, 192 N.J. 66 (2007). However, "bald assertions" of ineffectiveness will not be sufficient to establish a prima facie case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, a defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance . . . supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.
Here, defendant's trial, appellate, and PCR counsel did not raise the issue of a N.J.R.E. 404(b) limiting instruction concerning testimony that defendant participated in a drug deal with the murder victim. The State introduced the testimony to show defendant's motive for shooting Stephenson. If evidence of another crime is elicited at trial, the jury should be given a limiting instruction explaining "the permissible use of such evidence and its limited relevance." State v. Winder, 200 N.J. 231, 255 (2009). Prior to the testimony of the State's first witness, and again during the jury charge, the trial court issued a general limiting instruction regarding how the jury should consider evidence of other crimes; however, the judge did not specifically address the evidence about the drug deal.
Because this error was not raised in the trial court, we review defendant's contentions under the plain error standard. See R. 2:10-2 (noting that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result"). "In other words, was the possibility of injustice 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached'?" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). We conclude that it would not have.
The strength of the evidence against defendant overwhelmingly outweighs any undue prejudice the failure to issue a more specific limiting instruction may have had on defendant. See State v. Marrero, 148 N.J. 469, 497 (1997). This evidence includes, but is not limited to: two eyewitnesses identifying defendant as the shooter, both eyewitnesses testifying defendant shot Stephenson with a sawed-off shotgun, defendant speaking of obtaining a sawed-off shotgun prior to the murder (then telling his uncle he obtained one), and defendant making an incriminating statement while in custody. Thus, the failure of defendant's trial, appellate, and PCR counsel to raise the issue of a limiting instruction was not deficient, as it had no effect on the ultimate outcome of the trial, the direct appeal, or the PCR petition.
Defendant further argues defense counsel should have objected to, or at least requested a limiting instruction, concerning testimony from Anthony Figueroa, one of the eyewitnesses to the murder, that he and defendant were "confined" in a "dormitory setting together." Judge Neafsey correctly found that Figueroa's testimony "was limited to [his] familiarity with defendant because they were confined together" and defense counsel's cross-examination was "to demonstrate Figuroa was not sufficiently familiar with . . . [d]efendant to identify him."
We agree with Judge Neafsey's conclusion that Figueroa's testimony was highly relevant to his identification of defendant as the shooter and did not unfairly prejudice defendant. Further, defense counsel was not deficient by cross-examining Figueroa on the issue. In addition, appellate counsel was not ineffective for failing to raise the issue on direct appeal because it would not have been a successful argument. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.").
Finally, we find defendant's argument that the cumulative effect of his counsels' alleged errors warrant a reversal or a remand for an evidentiary hearing to be a bald assertion insufficient to set forth a prima facie case of ineffective assistance. State v. Cummings, supra, 421 N.J. Super. at 170.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION