STATE OF NEW JERSEY v. CHRISTOPHER THOMAS

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6988-03-T46988-03-T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRIS THOMAS,

Defendant-Appellant.

___________________________________

 

Submitted April 5, 2006 - Decided April 27, 2006

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-6-2577.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Joan E. Love, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Christopher Thomas, appeals from an order of the Law Division entered on May 26, 2004, denying his petition for post conviction relief (PCR). We affirm.

An Essex County grand jury returned Indictment No. 97-06-2577, charging defendant with six counts of drug-related offenses.

The indictment stems from a surveillance operation conducted by Newark police on May 3, 1997, in the area of an apartment building located at 353 South 11th Street. Surveillance officers observed defendant exit the apartment building carrying a knapsack. Defendant removed a handgun from the knapsack and showed it to other individuals who were on the apartment building porch. As the officers left their position to make an arrest, an unknown person yelled "Five-O". Defendant dropped the knapsack and ran back into the apartment building while others on the porch scattered. One officer retrieved the black knapsack while the other entered the building to make an arrest. The knapsack contained a gun, cocaine, and glass vials.

At the time of his arrest, defendant was living with his sister, who was a tenant in the apartment building. Shortly after the incident, defendant's sister arrived and gave written consent to the officers to conduct a search of the apartment. The officers retrieved a paper bag that contained drug paraphernalia from a bedroom. No suppression motion was ever filed.

Defendant was represented by Richard Banas. During jury selection, juror number one told the court that defendant looked familiar, but could not recall how she knew him. The court questioned the juror and permitted the juror to approach the defense table to obtain a better view of the defendant. The juror still could not recall how she recognized defendant. The trial judge decided not to excuse her. In addition, defense counsel neither moved to dismiss the juror for cause nor exercised any of his peremptory challenges to excuse the juror.

Defendant was convicted on all charges. He was sentenced to ten years imprisonment with five years of parole ineligibility. Appropriate fines and penalties were also imposed. In an unpublished opinion, we affirmed his conviction and sentence without prejudice to the right of defendant to petition for PCR on grounds not dependent upon facts in the record. State v. Thomas, No. A-32-99 (App. Div. January 30, 2001) (slip op. at 3). The Supreme Court denied certification 168 N.J. 295 (2001). Defendant filed a petition for PCR.

The petition was heard by Judge Harriet Klein, who was also the trial judge. As grounds for relief, defendant urged ineffective assistance of counsel and newly discovered evidence. Specifically, defendant contended defense counsel failed to investigate the case, subpoena witnesses or produce admissible evidence to support his defense theory, failed to file a meritorious suppression motion, and failed to object to the seating of juror number one, who knew defendant and who subsequently approached him during the trial.

In support of the petition, defendant submitted a certification from his cousin, Donald Williams, who stated he was being held in a police car at the time of defendant's arrest and saw defendant walking down the street when he was stopped and searched by the police. Williams indicated that defendant "was not carrying anything" and was placed in another police car. Williams stated, twenty minutes later he saw a police officer exiting 353 South 11th Street carrying a black bag. When the judge questioned why the information had not been previously provided to the court, defendant admitted that he never gave the information to his attorney. As to the ineffective assistance claim, defendant argued that Banas should have interviewed the potential witnesses, and the failure to do so constituted ineffective assistance of counsel. The judge rejected Williams' certification, but found defendant met the prima facie requirements of an ineffective assistance claim and ordered an evidentiary hearing.

Defendant, his trial attorney and his sister, Leticia Thomas, testified at the evidentiary hearing. Banas testified that he discussed potential witnesses and strategies with defendant. He indicated defendant assured him the witnesses would be produced for trial. He explained he did not subpoena them because, in his experience, it was better to produce friendly witnesses voluntarily rather than by subpoena. Banas explained that he did not file the motion to suppress the weapon because he felt it would be futile in light of the plain view exception to the warrant requirement, and he did not file the motion to suppress the search of the apartment because defendant did not produce his sister. Therefore, he did not know the nature of her proposed testimony. Finally, Banas testified he would have immediately notified the court had he learned a juror had contact with defendant during the trial.

Leticia Thomas testified she arrived home and found officers in her apartment. She stated they had already found the contraband when she entered. Thomas further testified the officers told her to sign the consent to search form or they would take her children.

Defendant testified that he and Banas discussed the witnesses, but he did not provide counsel with a list of contact information because he thought there would be no trial. He stated he was surprised when the trial began and claimed that he absented himself from a portion of the trial, at Banas' direction, to look for witnesses. Defendant also claimed that during the trial, juror number one saw him at a gas station and, along with another male, approached him. He stated juror number one gave him a "knee behind my knee" and asked whether he remembered her. Defendant stated he backed away and told her he only knew her as juror number one. The juror told him that they had gone on a group date. Defendant testified that he then remembered the juror and also recalled that he had been obnoxious and rude to her during the date. Defendant stated he advised Banas of this encounter and Banas told him it was "too far into the trial to do anything about it."

Judge Klein narrowed the PCR claim to three issues: (1) Banas' failure to investigate; (2) Banas' failure to subpoena witnesses; and (3) Banas' failure to object to juror number one. The judge found credible Leticia Thomas' description of the estranged relationship with her brother and the fact that she did not want to get involved. The judge also found Banas' testimony was credible, reasonable, and logical.

Judge Klein concluded defendant did not follow through with his commitment to Banas to provide him with information about his sister:

In this connection, the testimony of Ms. Thomas herself is rather revealing. I've already alluded to the issue of her location at the time and the fact that I think defendant basically should have known where his sister was. He should have been able to give his lawyer a real specific location to find her.

But more -- more significantly, she was quite candid in her testimony as to her estrangement with her brother and that they never had a close relationship and that, in fact, he didn't ask her to come to court at the time. I find her to have been a credible witness, having come in here to court. And it's probably reluctantly that she came in here. She did not want to be involved then, and -- and I think she didn't want to be involved now, even though this was her own brother. She said he would have had to ask her a couple of times to come into court. He would have had to twist her arm, basically.

And I -- I am finding, from weighing the witness's testimony on balance, that the defendant didn't follow through with his commitment to the lawyer to bring her in and didn't give Mr. Banas more specific information as to where to subpoena her because he basically knew she wasn't going to help him very much. She wasn't going to give the kind of testimony that was going to give the jury a good impression and be of any help to him in the charges he was facing.

The judge further found credible Banas' testimony that he did not move to suppress evidence as part of his strategy to put the question of the credibility of the testimony surrounding the consensual search of Leticia Thomas' apartment before the jury. She acknowledged that attorneys often employ this strategy to prevent witnesses from using a suppression hearing as a "dry run . . . where then they could maybe tailor testimony for trial." She reasoned, a failed strategy does not necessarily establish ineffective assistance. She determined Banas made an informed and strategic choice, which he discussed with defendant. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984).

Judge Klein next found Banas' decision not to excuse juror number one during the voir dire was not ineffective assistance. She noted defendant testified he told Banas that if the juror knew him, she would have a good impression of him. She found defendant's testimony about the gas station encounter lacked credibility and was tantamount to fabrication. The judge concluded, if this conduct had been reported, any attorney would have immediately advised the court.

On appeal, defendant contends the PCR judge erred in finding defendant failed to demonstrate ineffective assistance of counsel and also erred when she refused to permit defendant to call witnesses, including Donald Williams and juror number one, for the evidentiary hearing.

We have considered these contentions in light of the applicable law, the entire record, and the motion judge's oral decision. We are convinced defendant's substantive claims were fully and correctly addressed by the PCR judge and that the issues raised on appeal relating thereto do not require extensive discourse. R. 2:11-3(e)(2).

Affirmed for the reasons given by Judge Harriet Klein in her oral decision of May 14, 2004.

 

Leticia Thomas is also referred to as Letisha Thomas in the transcripts.

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A-6988-03-T4

April 27, 2006