STATE OF NEW JERSEY v. AL'SHAMOON THOMPSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2582-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AL'SHAMOON THOMPSON,

Defendant-Appellant.

________________________________

July 13, 2011

 

Submitted April 4, 2011 - Decided

 

Before Judges C.L. Miniman and LeWinn.

 

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-02-0562.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Defendant Al'Shamoon Thompson appeals from a July 30, 2009 order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was convicted in 1997 of first-degree purposeful and knowing murder of Leeman Bernard Hicks, first-degree attempted murder of Kenya Johns, second-degree aggravated assault of Johns, third-degree unlawful possession of a handgun, second-degree possession of a handgun for an unlawful purpose, and fourth-degree possession of a silencer. The facts supporting that conviction were recited in our opinion affirming the conviction and sentence subsequently imposed. State v. Thompson (Thompson I), No. A-0406-97 (App. Div. Jun. 23, 1999) (slip op. at 2-3).

At sentencing, the judge determined that defendant was eligible for Graves Act treatment under N.J.S.A. 2C:43-6c. Id. at 3. He merged the convictions for aggravated assault and possession of a handgun for an unlawful purpose with his conviction for first-degree attempted murder of Johns. Ibid. On the murder conviction, the judge sentenced defendant to a custodial term of life with a thirty-year period of parole ineligibility. Ibid. On attempted murder, he sentenced defendant to a consecutive term of twenty years with a ten-year period of parole ineligibility. Ibid. On the unmerged handgun offense, the judge sentenced defendant to a five-year term to run consecutively to the twenty-year term. Ibid. He also sentenced defendant to an eighteen-month concurrent term on his conviction for possessing a silencer. Ibid. Thus, "[t]he aggregate sentence [was] life in prison plus twenty-five years with a forty-year period of parole ineligibility." Ibid. In his appeal from his conviction and sentence, defendant raised the following issues:

POINT I - THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL WHEN PROSECUTION WITNESS TIM WRIGHT REPEATEDLY STATED THAT HE KNEW DEFENDANT FROM NORTHERN STATE PRISON.

 

POINT II - THE COURT ERRED IN REFUSING TO ALLOW DEFENDANT TO QUESTION JOHNS[,] WHO WAS THE SOLE EYEWITNESS, ABOUT DRUGS FOUND IN HER SYSTEM AT THE TIME OF THE OFFENSE.

 

POINT III - THE PROSECUTOR'S ALLUSION TO DEFENDANT'S EXERCISE OF HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT CONSTITUTED REVERSIBLE ERROR. (Not Raised Below).

 

[Id. at 3-4.]

We affirmed and addressed Point II as follows:

As to the limitations on cross-examination of [Johns], the trial judge ruled that she could be questioned as to the specifics of her drug use, but that she could not be cross-examined on a hospital drug screen which revealed the presence of unquantified amounts of opiate and barbiturate metabolites in her urine. He concluded that, in the absence of expert testimony to explain what the urine screening results meant (in terms of when the drugs were ingested or their effect), the probative value of the test results would be outweighed by their prejudice to the State. N.J.R.E. 403.

 

. . . .

 

Clearly, the hospital drug screen indicated that [Johns] had ingested a drug [sometime] in the recent past, thus providing a good faith basis for questions by defense counsel as to her drug use on the night in question.

 

We agree, however, that in this case, without specific evidence which would link the urine test results to impaired perception, the relevance of the document itself was attenuated at best. On the other hand, the prejudice to the State that the jury would ascribe to the report that it would be viewed as negative character evidence of [Johns] was significant. Under the particular circumstances of this case, the judge's N.J.R.E. 403 analysis is entitled to our deference.

 

[Id. at 4-6.]

Defendant filed a pro se verified PCR petition. He asserted four grounds supporting such relief:

POINT I - [DEFENDANT] WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL['S] FAILURE TO REQUEST EXPERT TESTIMONY CONTRARY TO [U.S. CONST. AMEND. VI] AND [N.J. CONST. (1947)] ART. I, PARA. 10.

 

POINT II - THE LOWER COURT ERRED[:] (a) DENYING REQUEST FOR MISTRIAL; (b) FAIL[ING] TO [VOIR] DIRE THE JURY, CONCERNING THE STATE WITNESS [WRIGHT'S] KNOWLEDGE OF NORTHERN STATE PRISON[] AND KNOWLEDGE OF DEFENDANT[,] DENIED OF [sic] THE RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

 

POINT III - [DEFENDANT] WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CONTRARY TO [U.S. CONST. AMEND. VI] AND [N.J. CONST. (1947)] ART. I, PARA. 10.

 

POINT [IV] - THE ACCUMULATION OF ERRORS DEMAND THAT [DEFENDANT] BE RETRIED. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

 

Defendant more specifically listed twenty instances of alleged ineffective assistance of counsel.

The Public Defender assigned to represent defendant filed a brief on his behalf in which counsel raised the following issues:

POINT I - [DEFENDANT] WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL [-] THE ROOTS OF THE RIGHT TO EFFECTIVE COUNSEL AND THE APPLICABLE STANDARD OF REVIEW[.]

 

A. The Standards Set Forth In [Cronic1] and [Strickland.2]

 

B. Counsel's Responsibility To The Accused[.]

 

C. Preparedness of Counsel Is The Linchpin[.]

 

i. Consultations With The Accused[.]

 

ii. Legal Research[.]

 

POINT II - [DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL[.]

 

POINT III - [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING TO ESTABLISH HE RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSELS [sic][.]

That brief was dated May 1, 2006, almost six years after defendant's PCR petition. The matter was heard on June 26, 2006, with defendant participating by video-teleconference. He had not been advised that his attorney filed a brief on his behalf but had been advised, instead, that she was going to be replaced by another attorney. He had also not been advised that the video-teleconference was a hearing on his PCR petition rather than a communication with his attorney. He had not discussed the issues raised in his petition with his attorney before the hearing.

Defendant's PCR application was denied, and he moved for reconsideration and a new hearing due to the ineffective assistance of his PCR counsel. He attached a letter from the Public Defender that was addressed to him and dated March 6, 2006, in which the Acting Deputy Public Defender advised defendant that she had asked his counsel "to return all cases in which she had not yet filed a brief" and that, as soon as she received his file, she would prepare it for reassignment to another attorney. Defendant submitted a pro se brief in support of reconsideration in which he raised the following issues:

POINT I - STATE MISIDENTIFICATION OF A BLOOD TEST CONDUCTED ON THE STATE'S CHIEF WITNESSES RESULTED IN PLAIN ERROR IN VIOLATION OF [N.J. CONST.] ART. I, PAR. 10 & THE DUE PROCESS CLAUSE THAT IS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENT[S] OF THE UNITED STATES CONSTITUTION.

 

POINT II - DEFENDANT SHOULD BE GRANTED A NEW TRIAL BASED ON THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF ART. I[,] PAR. 10 OF THE NEW JERSEY CONSTITUTION[,] IN ADDITION TO THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

 

A. Trial counsel failed to object to the [S]tate's incorrect identification of a critical scientific test, and obtain his own expert witness.

 

B. Trial counsel failed to request a mistrial after the state clearly withheld evidence on two separate occasion[s].

 

B-1. The statements [verbal] by [Johns] to the prosecutor prior to trial that she didn't use illegal drugs.

 

B-2. The telephone records of [Johns].

 

C. Trial counsel failed to object to the in-court and out[-]of[-]court identification of [Johns] and [Wright] and the suggestive nature of their identification.

 

POINT III - [DEFENDANT] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL AS WELL AS ON [PCR] IN VILATION [sic] OF [N.J. CONST.] ART. I[,] PAR. 10 AS WELL [AS] UNITED STATES CONSTITUTION AMENDMENT 6.

 

A. DIRECT APPEAL COUNSEL[.]

 

B. POST-CONVICTION COUNSEL[.]

 

On November 9, 2006, the judge denied defendant's motion for reconsideration. Defendant then appealed the June 26 and November 9, 2006, orders. In that appeal, defendant raised the following issue:

The [c]ourt should remand this matter for a fresh evidentiary hearing on defendant's ineffective assistance of trial counsel claim.

Before deciding the issue presented, we remanded the matter for reconstruction of the record pursuant to Rule 2:5-3(f). State v. Thompson (Thompson II), 405 N.J. Super. 163, 167 (App. Div. 2009). We then reversed and remanded for an evidentiary hearing. Id. at 172. We explained:

Applying those standards here, we are satisfied that defendant made out a prima facie case of ineffective assistance of counsel sufficient to require that an evidentiary hearing be conducted to explore defendant's claim. The PCR judge summarily concluded that counsel's failure to pursue inquiry into the surviving victim's drug use on the day of the murder and to retain an expert with respect thereto was "certainly not grounds under those compelling [and] uncontroverted facts in the case to cause a new trial with this defendant." Yet the facts were "uncontroverted" because counsel failed to make such an inquiry and retain an expert. The PCR judge's "common sense" conclusion that the surviving victim could not have been under the influence of drugs at the time of the murder because "she was clearly able to make identifications of the salient facts of the case" is insupportable. Thus, a hearing is required. Because the PCR judge seems committed to the outcome of the trial based on his comments in reconstructing the record, the matter should be assigned to another judge on remand. R. 1:12-1(d).

 

In ordering an evidentiary hearing in this matter, we do not restrict that hearing to the one issue that we have just discussed.[3] Rather, all of defendant's claims of ineffective assistance of trial and appellate counsel are to be thoroughly explored at such a hearing. The Public Defender is to retain a forensic expert to review the hospital records and opine at the very least on the level of drugs present in the surviving victim's blood at the time of the murder and the effect of those drugs on the victim's ability to identify the perpetrator and relate the circumstances of the offense. Once that report has been obtained and served on the prosecutor, the parties are to confer with the PCR judge and schedule the hearing. At the conclusion of the hearing, the judge is to make specific fact findings as required by Rule 1:7-4(a) and state his or her conclusions of law. Anything less is a "disservice to the litigants, the attorneys, and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) [(internal quotation marks omitted)] ("Naked conclusions do not satisfy the purpose of R. 1:7-4.").

 

[Id. at 171-72.]

Thereafter, the matter came before a newly assigned PCR judge, who decided the remand without a hearing in a written decision dated July 30, 2009. By then, defendant had procured a report from Dr. Daniel P. Greenfield, who specialized in general and forensic psychiatry and addiction medicine. He opined on the issue of whether "benzodiazepines, barbiturates, and opioids contributed sufficiently to [Johns's] mental state and psychiatric/neuropsychiatric/addiction medicine condition at the time to have impeded or otherwise significantly affected her ability . . . to have identified [defendant] as the shooter of her deceased husband . . . and herself."

Among the documents he reviewed were statements from two EMS workers at the scene of the shooting where they heard Johns identify "Moon" as the shooter. He also reviewed a statement from a witness who arrived at the scene before the police and to whom Johns stated, "'Moon did, Moon did it.'" He considered a photographic identification signed by Johns stating that "'the guy who shot me and Salaam. His name is Moon. He escape [sic] out of Northern State.'" He reviewed police reports describing Johns's condition at the time as "conscious responsive." He noted Johns's written statement ten days after the shooting in which she gave a lengthy account of the shooting. Additionally, he reviewed the grand jury proceedings at which Johns testified and gave a consistent identification of defendant as the shooter. Further, he considered medical records, including a MICU Medical Incident Report Form describing Johns's condition on first examination as "'conscious/lethargic.'" Her medical records from November 14 to 23, 1995, revealed a therapeutic level of Dilantin for seizures and positive test results at 12:13 p.m. on November 14, 1995, for barbiturates, benzodiazepines, and opiates without any quantitative assessment whereas a test done at 12:08 p.m. was negative. He did note that there was no other mention in the hospital records of these agents, "leaving an open question concerning her licit or illicit use of these agents leading up to the time of the shooting."

Dr. Greenfield thoroughly discussed his findings and reached the following opinion:

In summary, it is my psychiatric/neuro-psychiatric/addition medicine/toxicologic opinion . . . that the toxicologic (and other clinical) information obtainable from the laboratory chemistry tests on [Johns] on her admis sion to University Hospital on November 14, 1995, . . . do not permit inferences with a degree of reasonable medical probability one way or another about the potential cognitive impairing effects which representatives of those three agents of psychoactive medications and/or drugs may have had on [Johns] at the time in connection with her identification of [defendant] as the shooter in this incident, an identification which was made by her very shortly after the actual shooting. On the other hand, [Johns's] accurate identification of [defendant] as the shooter is consistent with her [inferable] mental state at the time (including potential effects of benzodiazepines, barbiturates, or opioids, and of the impact of the gunshot wound on her brain), which does not begin to be become altered . . . until sometime[] after that identification has been made.

 

Finally, . . . it is also my professional opinion . . . that even if expert evaluation and testimony had been obtained at the time of the original litigation and trial in this matter, that evaluation and testimony would not likely have been relevant to the outcome in this matter, in that it would likely have supported the inferences and opinions expressed above in this present report.

 

The State, too, obtained a medical report from Dr. Azuriah Eshkenazi, who, quite succinctly, "completely agree[d] with Dr. Greenfield's opinion" and expressed that "there is no way that one could come to a conclusion that the witness was intoxicated and could not have recognized [defendant]."

In her July 30, 2009, written decision, the PCR judge recited the findings of both experts and explained that, "[i]n light of these reports, and the absolute death knell even the defense expert's report sounded to the last defense theory, the defense was given yet another opportunity to provide anything else to supplement its position before this remand was resolved on the papers" but forwarded only his client's written objection to his own expert report, and neither counsel requested oral argument.

The judge then considered defendant's written objection that his trial and appellate counsel were ineffective because they failed to notice the State's error in identifying the tests as based on urine, not blood, trial counsel's failure to elicit facts upon which a favorable expert opinion could have been based, and appellate counsel's failure to raise the issue. She then applied Strickland's test to determine ineffective assistance of counsel and concluded that defendant had failed to prove the second prong of Strickland, prejudice from counsel's ineffective representation, because the blood test simply did not have enough information on which to base an attack on Johns's credibility. She concluded that defendant's written objection "does not raise any issues of merit."

More specifically, as to trial counsel's failure to elicit facts, the judge determined that the issue was barred under Rule 3:22-5 because we determined in Thompson I, supra, slip op. at 4-5, that examination on the issue of drug ingestion was properly foreclosed in the absence of an expert report. As to trial counsel's failure to locate witnesses who could testify to Johns's drug use, she noted that defendant provided no statements or even names of such people and, thus, he failed to raise an issue with respect to same. Therefore, she denied the petition in its entirety. An order was entered that day. This appeal followed.

Defendantraises thefollowing issuesfor ourconsideration:

POINT I - SINCE [DEFENDANT] MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STANDARDS ARTICULATED BY THE COURTS IN [STRICKLAND], STATE V. PRECIOSE,[4] AND STATE V. CUMMINGS,[5] UNDER [RULE] 3:22 CRITERIA THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING [PCR] WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.

 

POINT II - THE ORDER DENYING [PCR] SHOULD BE REVERSED BECAUSE [DEFENDANT] WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF [PCR] COUNSEL.

 

POINT III - THE COURT'S RULING DENYING [PCR] VIOLATED [DEFENDANT'S] RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

POINT IV - DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN [PCR].

 

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Id. at 420 (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord defer ence to credibility determinations, id. at 420-21 (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)).

However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

In his first point on appeal, defendant contends that we ordered a full evidentiary hearing for "all of the defendant's claims of ineffective assistance of trial and appellate counsel" during which those claims were "to be thoroughly explored," quoting Thompson II, supra, 405 N.J. Super. at 172 (emphasis added). He urges that he was entitled to such a hearing with respect to the expert opinions submitted to the court as well as all the other issues he raised in his PCR petition. We disagree.

In Strickland, supra, 466 U.S. at 685, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692, the United States Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, the defendant must demonstrate that the professional errors were so prejudicial as to deprive him of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

Once both experts opined that no conclusions could be drawn from the hospital records about Johns's ability or inability to accurately identify defendant, defendant was no longer able to prove that his counsel was ineffective in failing to secure expert testimony because he suffered no prejudice from that failure. That development eliminated six of defendant's PCR claims.

Although we did order that all of defendant's claims were to be explored, we did not necessarily mandate an evidentiary hearing with respect to each. Rather, the first PCR judge simply did not address Point II in defendant's PCR brief or the other fourteen issues raised by defendant pro se and they were, therefore, included in the remand. Unfortunately, the second PCR judge did not address them in any respect either. As a consequence, we will exercise our original jurisdiction and consider those issues.

In the second point of defendant's PCR petition, defendant alleged that the lower court erred in denying his request for a mistrial and in failing to voir dire the jury concerning Wright's knowledge of Northern State Prison and defendant. Of course, both of these issues could have reasonably been raised on direct appeal, Rule 3:22-4(a)(1), and defendant does not allege that "denial of relief would be contrary to a new rule of constitutional law," Rule 3:22-4(a)(3). Thus, defendant may not raise these issues as a ground for PCR unless he can demonstrate that his appellate counsel provided ineffective assistance in failing to raise the issue on direct appeal. R. 3:22-4(a)(2). The same can be said of the judge's alleged failure to voir dire the jury. Thus, we must decide whether appellate counsel was ineffective in failing to raise these issues and whether defendant was prejudiced by that failure.

The Strickland/Fritz test governs claims of ineffective assistance of appellate counsel. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987); see also State v. Moore, 273 N.J. Super. 118, 125 (App. Div.) (stating that "ineffective assistance of counsel claims, particularly ineffective assistance of appellate counsel, are congruous with the exceptions to the procedural bar of R. 3:22-4 because they . . . (2) involve infringement of constitutional rights; or (3) present exceptional circumstances involving a showing of fundamental injustice"), certif. denied, 137 N.J. 311 (1994).

Mistrials are granted "only in those situations which would otherwise result in manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969); see also R. 3:20-1 ("The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice."). A decision granting or denying "a mistrial is within the sound discretion of the trial judge." DiRienzo, supra, 53 N.J. at 383. We generally do not disturb the denial of a mistrial "unless there [was] a clear showing of mistaken use of discretion by the trial court," Greenberg v. Stanley, 30 N.J. 485, 503 (1959), resulting in manifest injustice, State v. Labrutto, 114 N.J. 187, 207 (1989). Defendant has shown neither here. As a consequence, his appellate counsel was not ineffective in failing to raise the mistrial issue on appeal.

The same can be said of jury voir dire. That is an obligation committed to the sound discretion of the trial judge. State v. Wakefield, 190 N.J. 397, 496 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Defendant has shown no mistaken exercise of discretion in the voir dire and has not demonstrated any manifest injustice. Again, he has failed to make out a prima facie case of ineffective assistance of appellate counsel.

Turning to the fourteen remaining issues defendant raised without point headings, six relate to the grand jury proceedings. Defects in the grand jury proceedings have been superseded by the trial on the merits and are no longer cognizable, even under the umbrella of ineffective assistance of trial counsel. See State v. Allah, 170 N.J. 269, 288 (2002) (noting that "most grand jury errors are rendered moot by a conviction after a fair trial").

Three of the remaining issues relate to trial counsel's alleged failures to investigate fact witnesses at University Hospital, witnesses living in the building of the crime scene, and alibi defense witnesses. Here, defendant has failed to make out a prima facie case of ineffective assistance of trial counsel because he did not submit affidavits from any of these witnesses, although he was required to do so. Cummings, supra, 321 N.J. Super. at 170 ("[P]etitioner . . . must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification."). Thus, these claims have no merit.

That leaves five ineffective assistance of counsel issues: (1) failure to press timely pretrial motions; (2) failure to suppress "perjurious" statements respecting a telephone bill; (3) failure to highlight the State's evidence that the crime was committed by third parties, such as blood at the crime scene; (4) failure to request a post-verdict voir dire of the jury concerning the testimony of Wright; and (5) failure to request a mistrial after the prosecutor commented in summation that Detective Sheppard "'[k]new who Moon was'" so it was easy and quick to get his photograph, highlighting the issue of Northern State Prison, in contravention of the judge's ruling.

We have carefully considered each of these issues and are satisfied that defendant has failed to demonstrate that the outcome of his trial would have been different had counsel explored them. Where sufficient prejudice has not been shown, we need not address the first prong of the test for ineffective assistance of counsel. Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699-700.

Affirmed.

1 United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

3 That issue was defense counsel's alleged failure to retain an expert to opine on the effect of the drugs found in Johns's blood upon her ability to observe and recall the events of the crime and the persons involved.

4 State v. Preciose, 129 N.J. 451 (1992).

5 State v. Cummings, 321 N.J. Super. 154 (App. Div.), certif. denied, 162 N.J. 199 (1999).