STATE OF NEW JERSEY v. SLICK THOMAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0481-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SLICK THOMAS,

Defendant-Appellant.

_________________________________________________

May 4, 2011

 

Submitted January 11, 2011 - Decided

 

Before Judges Payne and Baxter.

 

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No. 03-04-0563.

 

Yvonne Smith Segars, Public Defender,

attorney for appellant (Monique Moyse, Designated Counsel, of counsel and on the brief).

 

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Nancy A. Hulett, Assistant Prosecutor,

of counsel).

PER CURIAM

Defendant, Slick Thomas, was convicted by a jury of first-degree armed robbery, N.J.S.A. 2C:15-1, fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was also convicted of a violation of N.J.S.A. 2C:39-7b, prohibiting certain persons from having weapons, a second-degree crime. An aggregate sentence of seventeen years was imposed, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, defendant's convictions were affirmed, but his case was remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). State v. Thomas, No. A-0066-04 (App. Div. June 13, 2007). On resentencing, the same sentence was imposed. A petition for certification was denied. State v. Thomas, 193 N.J. 585 (2008).

Thereafter, defendant sought post-conviction relief (PCR), which was denied following an evidentiary hearing. Defendant has appealed, raising the following issues for our consideration:

POINT ONE

 

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY (1) TELLING THE JURY THAT MR. THOMAS WAS A DRUG DEALER AND (2) BY FAILING TO INVESTIGATE AND PRESENT HIS ALIBI DEFENSE. AS SUCH, THE PCR COURT'S DECISION DENYING DEFENDANT'S PETITION MUST BE REVERSED.

 

POINT TWO

 

THE CLAIMS IN MR. THOMAS'S PETITIONS AND BRIEFS ARE INCORPORATED IN THIS APPEAL UNDER STATE v. WEBSTER, 187 N.J. 254 (2006).

 

I.

 

At trial, evidence was presented that, on the evening of September 3, 2002, defendant approached Sommer Williams and Marcus Evans in Perth Amboy while Williams and Evans were sitting on the front porch of a friend's house. Defendant, who Williams testified was "going through a little territory phase," stated to Williams: "[Y]ou know, you can't be here, this is my block." After Williams insisted that she could be wherever she chose, defendant left. Soon, however, he returned, accompanied by Hassan Stevenson. The two men dragged Evans to his feet, and defendant directed him to "run his pockets." Stevenson thereupon held a gun to Evans's head, while defendant asked him which way he wanted to do it. Thereafter, Stevenson lowered the gun and shot Evans in the thigh. Defendant and Stevenson then departed in different directions. Upon the arrival of the police, Williams identified defendant, whom she had known since childhood. Williams also identified Stevenson.

During trial, defendant's counsel argued that what occurred was not a real robbery, but rather, a dispute between dealers over drug territory, and that defendant did not know that Stevenson would be present or that Evans would be shot. On direct appeal, defendant argued: "Defense counsel's effort to portray the defendant as a drug dealer in order to secure a not guilty verdict on the charge of armed robbery on Count One constitutes ineffective assistance of counsel." We declined to address the issue on direct appeal and invited a PCR motion. Thomas, supra, slip op. at 10-11.

In his PCR petition, defendant claimed that his trial counsel was ineffective in pursuing such a "high-risk" drug-dealer strategy, and he claimed additionally that counsel was ineffective in failing to raise an alibi defense. As to the alibi, defendant submitted a certification from his then-girlfriend, Aurora Chavies, that between 9:30 and 10:30 p.m. on September 3, 2002, she and defendant took a cab to a motel, where they stayed for the night. The trial transcript indicates that the shooting occurred at approximately 11:39 p.m.

At the PCR hearing, Chavies testified in accordance with her certification. The testimony of defendant, who also testified, was similar. Additionally, defendant testified that he had informed counsel of his alibi defense and that he had no notice that counsel would be arguing that the incident was a territorial drug dispute.

Defense counsel testified that he did not recall the specifics of the case, but that he was always guided by the wishes of his clients. He testified:

What I normally do with my clients, and I'm sure [t]hat I did with Mr. Thomas, is I give him a preliminary discussion about the criminal justice system. I explain to them how an Indictment comes about. I explain to him what the difference is between a crime and a disorderly person's offense. I explain to him what the dynamics of our relationship is.

 

In that, I explain to him, any client, as a matter of course, I make no decisions in their case. They're adults. They make their own decisions. The way the relationship would work is that, my job is to give them information, sufficient information, for them to make their own decisions. Their job is to ask me as much about the case as they possibly can, so, they feel they're in a position to make their own decisions in their case.

 

Counsel stated that the identification of defendant by Williams was one of the worst facts in the case from a defense point of view, because it made the identification stronger and more difficult to question. Clearly, he stated, that difficulty was discussed with defendant in determining the appropriate trial strategy. Misidentification, he thought, "would be a very difficult ro[w] to hoe."

Counsel stated that the drug territory dispute defense would not have originally come from him. He said: "I don't make up defenses for my clients. If that was a defense[] that was injected into the trial, it would have had to come from Mr. Thomas." Counsel expanded on his statement on cross-examination, testifying:

I wouldn't have known anything about the fact that there was any intimation of drug activity or drug turf, except if it came from my client. I do not and would not have ever created a defense, or facts, for a client. I could lose my license for doing that. I would never ever do something like that. Therefore, if there was some defense, having to do with a drug turf or a drug war, that had to come from Mr. Thomas. I didn't come up with that myself.

 

Counsel testified that he would not have denominated the drug dispute strategy a "high risk strategy" when talking to defendant, but "would have pointed out to him the fact that, in order to propound that defense, in front of the jury, there are certain risks that you have to take. You admit one thing bad, in order to try to convince the jury that something else didn't happen."

When asked what he remembered about the events of September 3, counsel responded:

My recollection is that, he told me that, he came across these people. That they shouldn't have been there. Mr. Evans There was some interaction between them. And, as I recollect, he told me that, I think, Hassan Stevenson came up, sort of out of the blue. He didn't really know Hassan that well. He didn't have that much to do with him. Hassan shot Marcus Evans. And that Slick was on his bicycle. They left separately. And what happened between Hassan and Marcus didn't have much to do with him, as I recollect.

 

Counsel could not recall whether he had heard of Aurora Chavies. When asked what he would have done if defendant had stated that he had an alibi witness, counsel responded that it was "absurd" to allege that he would fail to investigate what would constitute a complete defense to the crime, if believed. Because Chavies's name appeared on the trial witness list, counsel stated that she must have been investigated, unless she actively cooperated with the defense and thus an investigation was not necessary. Later in the hearing, however, it was determined that Chavies's name appeared on the prosecutor's witness list. When asked why her name appeared there, counsel responded that he would have been curious at that inclusion. "It may have been that they had spoken to her, and had gotten information from her, which conflicted or belied the alibi."

Counsel testified at the hearing that he was unsure at the moment whether the alibi covered the period of time during which the crimes were committed. Additionally, he testified that he found Chavies to be a compromised witness as defendant's girlfriend and as someone who was in jail at the time of trial. Counsel also noted that the State had a witness who knew defendant well and swore that he was present at the time the crimes were committed. Nonetheless, he reiterated, the decision remained with defendant whether to present either the drug turf dispute defense or the alibi defense, or both, so if a decision was made not to offer an alibi defense, that decision was defendant's.

Following the hearing, PCR counsel argued that there was no evidence other than surmise that defendant consented to the "high-risk" drug territory dispute strategy or that his alibi was investigated. The prosecutor, on the other hand, argued that Chavies's testimony at the hearing had not been credible, and that she would not have been credible at trial. Because defendant was known to Williams and there was no animosity between them, it was difficult to argue that defendant was not at the scene. In the circumstances presented, counsel merely worked with the evidence that he had, and the judge should accept as true counsel's testimony that the idea of the drug territorial dispute defense was generated by defendant.

As stated, the PCR judge denied relief, observing, "I am thoroughly satisfied, quite frankly, beyond a reasonable doubt, that there were no errors on the part of defense counsel." After reviewing the exhibits that had been marked into evidence, the judge noted that Aurora Chavies's name was listed on the first page of the discovery in the case. He stated:

The police, if I recall, searched her place by consent, looking for Mr. Thomas. And, as she testified, she told them, that he wasn't there. Or he was with her. So, the alibi, actually, originally, would have been part of the State's case.

 

Additionally, after reviewing counsel's resume and the fact that he had experience working in the Essex County Prosecutor's Office and extensive experience working with two very prominent criminal defense attorneys before joining the Office of the Public Defender, the judge found counsel well-qualified to represent defendant. The judge further determined that counsel was credible in testifying that, as a matter of routine, after laying out all the plusses and minuses, he required his clients to determine what trial strategy should be pursued. He thus concluded that counsel did not act independently and without his client's knowledge in asserting the drug territory dispute defense or in failing to assert an alibi defense. This appeal followed.

II.

On appeal, defendant appears to concede that the judge's acceptance of counsel's testimony regarding defendant's determination of trial strategy was supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). Instead, he attacks defense counsel's practice of requiring the client to choose the trial strategy to be employed. In doing so, defendant argues, counsel forsook his role as defendant's advocate, failed to utilize his skill and knowledge on defendant's behalf, and wrongfully placed crucial legal decisions in defendant's untutored hands.

We reject this argument, concluding that defendant misinterpreted counsel's testimony at the PCR hearing. Counsel did not testify that he in any respect abandoned his role as an attorney in his defense of persons charged with crimes. The gist of his testimony was simply that, after a thorough discussion of the merits and drawbacks of various positions had occurred, he permitted the defendant to control "broad trial strategy and tactics" a procedure that took advantage of the defendant's superior knowledge of the facts of the matter and the strength of his defenses. In all other respects, counsel retained full control of the defense. He testified in this regard:

When I prepare for a trial, I know the facts of the case prior to the trial. I have a separate file, generally, for each witness. I know what each witness is going to say. I know what the important things are, what the unimportant things are, what the ancillary things are. I know what corroborative evidence is or is not. It's the basics to trial practice. The way you win is by knowing the case better than your adversary. And, so, my endeavor always is to know every single fact in that file as well as do any research, so, I'm better prepared than my adversary is.

 

Moreover, even if counsel's approach was wrongly conceived, see, e.g., ABA Standards for Criminal Justice: Prosecution and Defense Function, Std. 4:5-2 (3d ed. 1993) (determining that "[s]trategic and tactical decisions should be made by defense counsel after consultation with the client"), we conclude that it did not render counsel ineffective in the present case. In this regard, it is well established that to obtain post-conviction relief based upon an allegation of ineffective assistance of counsel, a defendant must demonstrate that counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).

Our examination of the trial record in this matter satisfies us that a drug territory dispute defense was not only appropriate in this matter, but to an extent compelled by Williams's testimony as a State's witness that defendant stated to her that she could not "be down here[,] saying that this was his block" and that, at the time, defendant was "going through a little territory phase." Further, as a matter of trial strategy, counsel was required to counter the State's position, buttressed by Williams's eyewitness testimony, that defendant and Stevenson acted together to commit an armed robbery on Evans. Faced with this evidence, counsel argued that by directing Evans to "run his pockets," defendant merely sought to determine if he was carrying drugs for sale in a rival's territory, not to commit a robbery, as charged, and he further argued that Stevenson's appearance at the scene was unexpected, as was his use of the gun, thereby seeking to counter the "armed" aspect of the charge. We find nothing ineffective in counsel's approach. An attorney's admission that his client committed a lesser offense in order to avoid conviction of the greater one does not constitute ineffective assistance, particularly in a circumstance in which eyewitnesses exist. State v. Castagna, 187 N.J. 293, 315-16 (2006). Given the strength of the State's evidence, that counsel failed to prevail in his arguments provides no ground for relief. State v. Gary, 229 N.J. Super. 102, 116 (App. Div. 1988).

As a final matter, we are satisfied that, contrary to defendant's position, the drug territory defense was originated by him. As counsel stated at the hearing, such a defense could only have been initially raised by defendant, because counsel could not have developed it independently. Williams's testimony in this regard lends credence to the veracity of that defense.

We thus reject defendant's argument that counsel was ineffective in presenting a drug territory dispute defense to the armed robbery charge against him.

We similarly reject defendant's claim that counsel was ineffective in not presenting an alibi defense. Counsel testified at the hearing that defendant must have determined that such a defense would be unavailing. We concur in that view. On the one hand, Williams, an eye-witness to the crimes, identified defendant as a perpetrator, offering a virtually unassailable basis for her identification. On the other hand, defendant's alibi witness, his girlfriend Chavies, could be impeached as the result of her evident bias, the fact that she was presently in jail, and her prior criminal history. Moreover defendant had no independent evidence to corroborate Chavies's story. That Chavies's name appeared on the State's witness list provided another reason for counsel not seeking to call her. As counsel stated at the PCR hearing, it was reasonable to presume that her evidence would not aid defendant's position. In these circumstances, we find that counsel made a proper strategic decision in declining to present an alibi defense. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694; State v. Drisco, 355 N.J. Super. 283, 290-91 (App. Div. 2002) (determining that counsel was not ineffective in withholding an alibi defense), certif. denied, 178 N.J. 252 (2003). We therefore find that defendant failed to meet his burden of establishing that counsel was ineffective.

III.

P

oint Two of defendant's brief commences with an argument heading that states: "The claims in Mr. Thomas's petitions and briefs are incorporated in this appeal under State v. Webster, 187 N.J. 254 (2006)." Our review of the record discloses a pro se PCR petition by defendant, but does not disclose pro se briefing. The only claims articulated by defendant in his petition are a general claim of "ineffective assistance of counsel" and a claim of "imposition of a sentence in excess of then existing presumptive sentence." We have addressed the claim of ineffective assistance of counsel in Part II of this opinion. We considered defendant's sentencing argument on direct appeal and remanded defendant's case for resentencing, which has taken place. We decline to further address this argument, which, as the result of our prior remand, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.