STATE OF NEW JERSEY v. ADONIS THOMAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0274-04T40274-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADONIS THOMAS,

Defendant-Appellant.

_________________________________

 

Submitted April 5, 2006 - Decided July 14, 2006

Judges Wefing and Wecker.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

97-11-4698-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jean B. Bennett,

Designated Counsel, of counsel and on

the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Joan E. Love,

of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Adonis Thomas, appeals from an order denying his motion for post-conviction relief (PCR). A jury convicted defendant in June 1998 on two counts of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1), (2), one count of first-degree attempted murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:5-1, and several additional crimes arising out of the same street shootings. On the murder counts, defendant received consecutive life sentences, each with thirty years of parole ineligibility. On the attempted murder count, defendant received a third consecutive life sentence (a mandatory extended term as a second Graves Act offender, see N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3d) with twenty-five years of parole ineligibility. Several counts were merged, and sentences on the remaining counts were to run concurrent.

Defendant's convictions were affirmed on direct appeal. State v. Thomas, Docket No. A-3428-98T4 (App. Div. Jan. 11, 2001). His petition for certification was denied by the Supreme Court. 167 N.J. 637 (2003). Defendant's motion for post-conviction relief was denied on July 30, 2004, without an evidentiary hearing.

Defendant presents these arguments in a brief submitted through counsel:

POINT I

DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE SHOULD HAVE BEEN GRANTED.

POINT II

THE JUDGE ERRED IN HOLDING THAT THE DEFENDANT FAILED TO ESTABLISH THAT HE HAD RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED TO PRESENT TESTIMONY OF THE ALIBI.

POINT III

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.

POINT IV

THE SENTENCE IMPOSED BY THE COURT BELOW VIOLATES THE DEFENDANT'S CONSTITUTIONAL RIGHTS.

In a pro se supplemental brief, defendant presents these arguments:

POINT I

The PCR Judge Erred by Rejecting the Claim that Trial Counsel was Ineffective for Failing to Present an Alibi Defense.

POINT II

The Cumulative Effect of Trial Counsel's Failure to Present an Alibi Defense and the State's Failure to Disclose Material Evidence Deprived Defendant of a Fair Trial.

POINT III

The PCR Judge Erred by Denying the Motion for a New Trial Based on Newly Discovered Evidence.

POINT IV

The PCR Judge's Comments on the Credibility of Vernon Smallwood, the Defense's Proposed Alibi Witness, and the Judge's Familiarity with Smallwood Undermines any Confidence that the Judge Reached an Unbiased Decision. (Not Raised Below).

POINT V

The Jury's Verdict of Murder must be Vacated Because one of the Predicates for Conviction (Knowingly Causing Serious Bodily Injury, that then Resulted in Death) is Indistinguishable from Aggravated Manslaughter and Reckless Manslaughter.

POINT VI

The Trial Court Deprived Defendant of a Fair Trial when it Failed to Instruct the Jury on Aggravated Assault as a Lesser Offense in the Count Charging Attempted Murder.

POINT VII

Trial Counsel was Ineffective for not Requesting that the Trial Court Charge Aggravated Assault as a Lesser Offense in the Count Charging Attempted Murder.

POINT VIII

Trial Counsel was Ineffective for not Moving to Dismiss the Aggravated Assault Count in the Indictment on the Ground that it was Multiplicitous.

POINT IX

PCR Counsel was Ineffective for Failing to Argue the Claims in Defendant's Pro se Papers.

We have considered the record in light of the contentions advanced on appeal. The arguments raised in Points I and IV of counsel's brief and in Points V through IX of defendant's pro se brief are without sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(2). There is sufficient merit, however, in the related arguments raised by counsel's Points II and III and by defendant's Points I through IV to warrant a plenary hearing. We now remand for that purpose.

All of the arguments on defendant's behalf that require exploration in a plenary hearing relate to his contention that he had an alibi defense, that his attorney should have located his proposed alibi witness and offered that witness at trial, and that the verdict likely would have been different had that witness testified. Defendant also argues that the motion judge erred by finding that the jury was not likely to believe defendant's alibi witness and by failing to conduct an evidentiary hearing on defendant's arguments.

In preparation for trial, it appears that defendant gave his attorney only a street name for the "alibi witness," which was "Raheem." The witness was later identified as Vernon Smallwood. PCR counsel explained defendant's argument in his brief to the Law Division, arguing that either the failure to identify and locate Smallwood represented inadequate professional effort, or "if this performance met professional standards, then the critical information that was necessary to make the identification did not materialize until well after the trial" and therefore constituted newly discovered evidence.

The heart of defendant's argument before us is that he gave his trial attorney sufficient information to require the attorney and his investigator to make more diligent efforts to find the witness now identified as Vernon Smallwood and to present his testimony to the jury.

The standard of review on a claim of ineffective assistance is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and United States v. Cronic, 466 U.S. 648, 656-62, 104 S. Ct. 2039, 2045-48, 80 L. Ed. 2d 657, 666-70 (1984), which we adopted in State v. Fritz, 105 N.J. 42, 52 (1987). We recognize the State's contentions respecting the weight of Smallwood's likely testimony, which would impact the second prong of the Strickland/Cronic/Fritz standard. Nonetheless, we conclude that defendant's contentions could not be fairly addressed on the papers alone and warranted a plenary hearing to determine what information defendant provided to his attorney, what the attorney and the investigator each did to follow up on that information, and why the witness either was not located or was not offered at trial. See State v. Preciose, 129 N.J. 451, 462-63 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief. As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Ibid.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

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A-0274-04T4

July 14, 2006