STATE OF NEW JERSEY v. QURAN RASUL THOMAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2474-04T42474-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QURAN RASUL THOMAS, a/k/a

QUARAN RASUL THOMAS,

Defendant-Appellant.

_____________________________________

 

Submitted September 20, 2006 - Decided November 20, 2006

Before Judges Stern and Sabatino.

On appeal from an order of the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-09-1682.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, of counsel and on the brief).

Louis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal of the denial of post-conviction relief (PCR). After being waived to the Law Division, defendant Quran Rasul Thomas was convicted in December 1998 of various offenses he was charged with committing at the age of seventeen. The offenses arose out of a series of shootings, altercations and other criminal activities in the early morning hours on New Year's Day in 1997, in which defendant participated with other young men after a night of celebrating at a hotel.

Defendant's most serious conviction was for first-degree armed robbery, contrary to N.J.S.A. 2C:15-1. That conviction was based on the State's proofs that defendant, who was driving a car with codefendant Caron Woods seated in a rear passenger seat, pulled over next to a pedestrian named Dwayne Allen and demanded drugs and money. The trial proofs showed that when Allen failed to provide the demanded items, defendant shot Allen in the hip with a gun supplied by Woods, and then sped away. Defendant also was found guilty of second-degree aggravated assault upon Allen, in violation of N.J.S.A. 2C:12-1b(1). Additionally, the jury convicted defendant of third-degree aggravated assault with a deadly weapon, in violation of N.J.S.A. 2C:12-1b(2), and fourth-degree aggravated assault by pointing a firearm, in violation of N.J.S.A. 2C:12-1b(4). These latter two convictions arose out of a drive-by shooting of other victims, Syr Berry and Bruce Berry, occurring earlier in the morning before the Allen shooting.

Further, defendant was convicted of two weapons offenses connected with the events of January 1, 1997. In particular, he was found guilty of second-degree possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a, and third-degree unlawful possession of that weapon, in violation of N.J.S.A. 2C:39-5b.

Defendant was sentenced to an eighteen-year term on the robbery conviction, inclusive of a seven-year parole ineligibility term, into which the three aggravated assault convictions merged. He also received a consecutive sentence of eight years, with a three-year period of parole ineligibility, on the second-degree weapons offense, plus a concurrent term of five years with a two-year parole ineligibility period on the third-degree weapons offense. We sustained the convictions and sentence on direct appeal in a per curiam opinion issued on March 30, 2001 (A-4645-9874). The record contains no indication that defendant sought certification from the Supreme Court.

Defendant thereafter filed an application for post-conviction relief, for which he received the assistance of counsel. In an oral opinion on October 15, 2004, the Law Division denied defendant's motion and an evidentiary hearing. This appeal followed.

Defendant raises the following arguments, which mainly relate to the alleged ineffectiveness of the successive attorneys who represented him in the juvenile waiver hearing, the trial, and on his direct appeal:

POINT I

THE LAW DIVISION ERRED IN DENYING POST-CONVICTION RELIEF AS PETITIONER'S WAIVER COUNSEL RENDERED INEFFECTIVE ASSISTANCE, THEREBY DENYING PETITIONER OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL.

POINT II

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF AS HIS TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE, THEREBY DENYING PETITIONER HIS SIXTH AMENDMENT RIGHT TO COUNSEL.

A. Trial Counsel Rendered Ineffective Assistance By Failing to Object to the Trial Court's Instruction On Robbery.

B. Trial Counsel Failed to Object to the Trial Court's Use of an Ambiguous Single Verdict Sheet.

C. Trial Counsel Failed to Request a Limiting Instruction Regarding Testimony of Petitioner's Alleged Involvement in the Crimes Charged in the Severed Indictment.

POINT III

APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ENSURE THAT ALL POSSIBLE ISSUES AVAILABLE TO PETITIONER WERE HEARD ON DIRECT APPEAL.

POINT IV

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BECAUSE THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE.

We have fully considered these arguments, and affirm the Law Division's denial of PCR relief substantially for the reasons articulated by Judge Neafsey in his October 15, 2005 bench ruling. We do add several comments.

As a general matter, to establish a deprivation of the right to the effective assistance of counsel, a person convicted of a crime must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987)(adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Defendant first contends that his waiver counsel was ineffective, particularly in failing to present an opening statement to the Family Part judge who presided over that hearing, and also in failing to obtain and present expert testimony on defendant's prospects for rehabilitation. We discern no such actionable ineffectiveness.

The waiver hearing was conducted under the former version of the applicable juvenile waiver statute, N.J.S.A. 2A:4A-26 et seq., amended by L. 1999, c 373 (eff. March 14, 2000) (adding, among other things, subsection (e)). It also took place before the Supreme Court's opinion in State v. J.M., 182 N.J. 402, 410-19 (2005), which, combined with the post-1997 amendments to the statute, have had the effect of transforming waiver hearings into more extensive proceedings today than they customarily were in 1997. Particularly considered in that light, we are satisfied that defendant's waiver counsel adhered to the prevailing norms of representation under the former version of the statute, and that he did not cause any actual prejudice to his client.

More specifically, we cannot fault defendant's counsel for dispensing, as did counsel for at least one other co-defendant, with an opening statement at the waiver hearing. This was a nonjury proceeding, in which the judge was surely aware of the relevant legal standards and also presumably familiar with the case file and with the basic contentions of the parties. Opening statements, which serve as "roadmaps" to a trial, are often superfluous in such nonjury settings. We will not second-guess counsel's decision to preserve his advocacy for summation.

Nor was waiver counsel obligated to retain a psychological expert on the then-applicable statutory issue of this juvenile's amenability to rehabilitation. Defendant had a long record of ten prior juvenile arrests and adjudications for two assaults, conspiracy, harassment, and a violation of probation. He was accused in this matter of exceedingly grave wrongdoing, including attempted murder, conspiracy to commit murder, robbery, and multiple aggravated assaults. Defendant would be turning nineteen within approximately nine months after the waiver hearing, at which time he would age out of the juvenile justice system. In re G.T., 143 N.J. Super. 73, 75 (App. Div. 1976), aff'd, 75 N.J. 378 (1978).

We concur with Judge Neafsey that it is speculative to assume that a defense expert would or could have persuasively opined that an eighteen-year-old with such an extensive juvenile history would be apt to rehabilitate himself in such a short period of time. Moreover, defendant did not furnish any expert report with his PCR application corroborating his alleged amenability to rehabilitation in 1997.

We also perceive from our review of the record that waiver counsel was thorough in cross-examining the State's witnesses on identification-related issues, and that he presented a strong and detailed summation attacking the State's proofs on probable cause. Defendant declined after being examined on the record, an opportunity to testify himself at the waiver hearing, even literally stating under oath that he was "satisfied" that waiver counsel had answered all of his questions.

In sum, we affirm the Law Division's conclusion that defendant's waiver counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, and that he caused no actual prejudice to defendant despite his failure to overcome the strong presumptions of the statute and prevent defendant from being tried as an adult.

Defendant next contends that his trial counsel was ineffective in failing to request the court to provide the jury with an instruction on attempt, in connection with the count alleging robbery of Allen. He argues that since no property was taken from Allen, the judge should have specifically charged the legal principles of attempt as to that count of the indictment, thereby providing the jury with an understanding of the proofs needed to establish an attempted robbery. This was an issue apparently raised on direct appeal in defendant's pro se brief, but not explicitly discussed in our March 2001 opinion.

The trial judge charged attempt, as a general concept, five separate times regarding other offenses in the indictment. The jury had before it all of the essential components of the concept of attempt under the law. Our task is to consider the instructions as a whole, not just portions in isolation. See State v. Savage, 172 N.J. 374, 387 (2002). We are satisfied that any error in failing to renew the attempt instruction in the particular context of robbery charge was harmless. State v. Macon, 57 N.J. 325 (1971). Moreover, under the robbery statute itself, which was charged to the jury, "an attempt to commit theft or in immediate flight after the attempt" is robbery, see N.J.S.A. 2C:15-1(a), making a separate jury instruction on "attempted robbery" unnecessary.

We cannot and will not presume that the jurors' request during their deliberations to have the court repeat the robbery charge for them signaled any lack of their understanding of attempt principles. Moreover, the central dispute at trial did not focus upon whether or not the victim Allen was shot in the course of an attempted theft, but rather turned on the identity of his attacker and whether or not defendant was the person who in fact shot him. Although this issue was not specifically addressed in the PCR hearing, we are confident that trial counsel's failure to demand a sixth reiteration of the attempt charge was neither deficient nor a source of actual prejudice.

Defendant next argues that his trial counsel was ineffective in failing to object to the use of a single verdict sheet, which combined the offenses alleged against him with those alleged against his co-defendant, Woods. We previously ruled in March 2001 that "considering the verdict sheet in the context of the evidence adduced at trial and the judge's charge . . . any facial ambiguity [in the verdict sheet] had no capacity at all to have misled the jury and patently did not do so." That determination binds defendant in this PCR matter, see R. 3:22-5, and necessarily negates his claim of any actual prejudice flowing from the failure of trial counsel to object to the verdict sheet. In any event, our independent review of the record reveals no such prejudice.

Defendant further contends that his trial attorney was ineffective in failing to seek a limiting instruction concerning a witness's reference during the trial to the shooting of two other persons, Rolando Garcia and Kevin Gilbert, at the hotel on January 1, 1997. The charges connected to that shooting, in which defendant also was implicated, were severed from the present indictment. After the witness alluded to that shooting, counsel for defendant's co-defendant objected, and the objection was sustained at sidebar. When we reviewed this occurrence on direct appeal, we held that "the witness's single fleeting reference to a shooting in the hotel lobby was too isolated and contextually vague to have had any capacity at all to have prejudiced [defendant]." Thus, defendant is likewise bound by this prior finding of the absence of prejudice. R. 3:22-5. Indeed, a limiting instruction may only have served to remind the jury of this otherwise-fleeting reference. We consider defense counsel's decision not to press for such an instruction the sort of trial tactic that is not cognizable under Strickland and Fritz.

Defendant's contention that his former counsel on direct appeal was ineffective, allegedly because that attorney did not incorporate in his own brief all of the points raised in defendant's separately-filed pro se brief, lacks sufficient merit to warrant further discussion. See R. 2:11-3(e)(2).

Lastly, we are fully satisfied that defendant's sentence, which has since been corrected following our March 2001 opinion to merge his conviction of possession of a weapon for an unlawful purpose into his armed robbery conviction, was neither illegal nor excessive. See State v. Roth, 95 N.J. 334 (1984). The terms of defendant's sentence for these serious offenses are fair, even considering defendant's claims that he deserved greater leniency because of his emotionally-disturbed youth and because of the alleged influence of older persons who participated with him in the series of violent acts on New Years Day. In any event, claims of excessiveness are not cognizable on an application for post-conviction relief. See State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

Affirmed.

 

We shall not repeat here in detail the facts more extensively described in that opinion.

Under present law, defendant, being over sixteen at the time of these serious charged offenses, would have been subject to the so-called automatic waiver provision of N.J.S.A. 2A:4A-26(e).

(continued)

(continued)

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A-2474-04T4

November 20, 2006