STATE OF NEW JERSEY v. THOMAHL COOK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3740-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAHL COOK,

Defendant-Appellant.

__________________________________

December 7, 2012

Submitted November 14, 2012 - Decided

Before Judges Reisner and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-11-1562.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thomahl Cook appeals from the September 10, 2010 order denying his application for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

I.

A.

In February 2000, Cook was convicted by a jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2). Two months later, Cook was sentenced to a term of sixty years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Cook appealed. We affirmed the conviction, vacated the NERA sentence, and remanded for resentencing. State v. Cook, No. A-5166-99 (App. Div. Oct. 23, 2002) (Cook I). The Supreme Court affirmed. State v. Cook, 179 N.J. 533 (2004).

On remand, the Law Division imposed a sixty-year term with a mandatory thirty-year period of parole ineligibility. We affirmed the sentence, State v. Cook, No. A-3510-02 (App. Div. Aug. 31, 2005) (Cook II), and the Supreme Court denied further review. State v. Cook, 185 N.J. 392 (2005).

In his Law Division application for PCR, Cook argued sixteen discrete points, which focused mainly upon multiple instances of alleged ineffective assistance of counsel. After oral argument, but without conducting an evidentiary hearing, the PCR court rendered an oral decision that addressed every argument raised by Cook. An order memorializing the denial of PCR was issued on September 10, 2010, and this appeal followed.

B.

On appeal, Cook presents the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO EFFECTIVELY PURSUE AN ALIBI-TYPE DEFENSE.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PRESENT RELEVANT TESTIMONY WHICH AFFIRMATIVELY SUPPORTED A THIRD PARTY GUILT DEFENSE.

D. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO THE TESTIMONY OF AN IMPORTANT WITNESS (HEATHER STONBELY) ARISING OUT OF LATE DISCOVERY PROVIDED BY THE STATE, BY FAILING TO REQUEST A CONTINUANCE TO INVESTIGATE SUCH LATE DISCOVERY, AND BY FAILING TO PRESENT EVIDENCE TENDING TO CONTRADICT THE SUBSTANCE OF SUCH TESTIMONY.

E. TRIAL COUNSEL WAS REMISS BY FAILING TO REQUEST THE TRIAL COURT INSTRUCT THE JURY REGARDING ITS DUTY WITH RESPECT TO CORROBORATION OF THE DEFENDANT'S ALLEGED CONFESSION TO THE POLICE.

F. TRIAL COUNSEL'S ATTEMPT TO PRESENT A DEFENSE THROUGH CROSS-EXAMINATION WAS DETRIMENTAL TO THE DEFENSE IN SEVERAL MATERIAL RESPECTS.

G. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, HE WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

POINT II: THE COURT ERRED IN DENYING POST CONVICTION RELIEF COUNSEL'S MOTION TO INSPECT AND COPY EVIDENCE AND FOR ADDITIONAL DISCOVERY IN THE STATE'S POSSESSION TO PRESENT TO A CRIME SCENE RECONSTRUCTION EXPERT IN ORDER TO PREPARE A REPORT WHICH COULD POTENTIALLY IMPACT THE VERACITY OF THE "CONFESSION" ALLEGEDLY MADE BY THE DEFENDANT TO THE POLICE, THEREBY SUPPORTING POST CONVICTION RELIEF COUNSEL'S CONTENTION THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

Our review of the record convinces us that none of these contentions warrants the award of PCR.

C.

Cook, then twenty-four years old, was convicted of the purposeful and knowing murder of fifteen-year-old Katrina Suhan carried out during the early morning hours of February 14, 1998. Cook, supra, 179 N.J. at 540.

Suhan was last seen as she walked home after roller skating with a friend in South Amboy. Sometime after 12:30 a.m., a commotion on Stevens Avenue a female wanting to be left alone and one or more males arguing with her was heard by several people in the area. Ibid.

Suhan's lifeless body was found in the afternoon of February 15 in a rough wooded area behind the Hill Lanes bowling alley in nearby Old Bridge. She was face down and partially covered by a shopping cart. There were pieces of concrete resting on her upper torso and head. In addition, her clothing was in disarray. Suhan's pants were pulled down below her waist and the hood of her jacket was torn in places. There were numerous injuries to Suhan's head. The cause of death was described as blunt trauma to her head. Ibid.

The same evening Suhan went roller skating, Cook had been at the Bridgewater Commons Mall where he met an acquaintance, fourteen-year-old T.S. During a conversation with T.S., Cook mentioned that T.S. reminded him of "Kat." Cook parted company with T.S. after walking her home from the mall sometime around midnight. Id. at 541.

During the ensuing police investigation, Cook was interviewed. After many hours of interrogation, Cook eventually confessed to Suhan's murder. Cook recounted that he made sexual advances to Suhan, which she rejected. Her rejection enraged him, and he first struck her in the face with his fist and then admitted to hitting Suhan with a wooden board and some rocks or concrete located near the body. Id. at 545.

Prior to the commencement of Cook's trial, defense counsel brought up the unsolved homicide of Nancy Noga, which occurred in January 1999 after Cook was in custody very close to where Suhan's body was found. Defense counsel argued the similarities between the two homicides and sought to introduce its details at trial to establish reasonable doubt that Cook was Suhan's killer.

A hearing pursuant to N.J.R.E. 104 was held to determine whether or not there was sufficient similarity in the crimes to permit the defense to introduce the Noga homicide into evidence. On January 31, 2000, the trial judge denied defense counsel's motion to enter details about the Noga homicide into evidence, finding that while there were superficial similarities between the two homicides, "the weight to be given this evidence is far too speculative."

At trial, defense counsel's vigorous cross-examination of the State's witnesses forced an acknowledgment that there was no forensic evidence tying Cook to the Suhan murder because none had been collected. Thus, the primary evidence against Cook was the oral recount of his unrecorded and unsigned confession.1 In addition, defense counsel's cross-examination elicited that the State had no idea how Cook supposedly got from Somerville, where he lived, to South Amboy, where the murder was committed.

After the State rested its case, defense counsel moved to dismiss the case entirely arguing that "the State has not presented a prima facie case. . . .[T]here are two uncorroborated oral statements of the defendant, which were obtained after a [fifteen]-hour interrogation." The motion was denied. Following Cook's decision not to testify, the defense rested its case. The jury's guilty verdict followed.

II.

We begin our analysis of Cook's arguments with the presumption that he received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); see also State v. Loftin, 191 N.J. 172, 198-99 (2007).

We review claims of ineffective assistance of counsel under the two-factor test established by the United States Supreme Court in Strickland and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland standard for ineffective assistance of counsel claims under Article I, Paragraph 10 of New Jersey Constitution). See State v. McDonald, 211 N.J. 4, 29-30 (2012). First, Cook must demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. With respect to both factors of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his right to relief by a preponderance of the evidence. See State v. Echols, 199 N.J. 344, 357 (2009).

Also,

[t]he right to counsel guarantees defendants the right "to competent counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a standard of "reasonableness under prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Deficient performance is established by proving that "counsel's acts or omissions fell 'outside the wide range of professionally competent assistance' considered in light of all the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). And, the evaluation as to the reasonableness of an attorney's performance must be "'viewed as of the time of counsel's conduct.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694).

[State v. Gaitan, 209 N.J. 339, 350 (2012).]

Cook contends that defense counsel was ineffective because he failed to effectively pursue an alibi-type defense. Instead, because there was no forensic evidence linking Cook to the murder, the case ultimately came down to Cook's confession and other circumstantial evidence tying him to the crime. During cross-examination of the State's witnesses, defense counsel was able to demonstrate that almost no documentation had been prepared by police and very little physical evidence had been collected.

This was further buttressed during summation where defense counsel stated that the police never took fingerprints from Suhan's body or exemplars from the people Suhan had interacted with the evening prior to her death. Defense counsel exhorted the jury to acquit by arguing that the State had not proven its case because no one could show how Cook had managed to get to South Amboy, the location of the crime.

Notwithstanding these efforts, Cook suggests that the defense should have proffered the live testimony of persons who were with Cook on the night in question in order to bolster the theory that he could not have been present when Suhan was murdered.

The PCR judge noted that "in order to establish an alibi, one must say, well something happened at a particular time and at that particular time [Cook] was someplace else." Because the actual time of death could not be ascertained, defense counsel was unable to credibly mount a conventional alibi defense. Further, the PCR judge concluded that the jury charge regarding Cook's general denial of guilt because Cook contended he was not present at the time and place where the murder was committed was appropriate given the inability to determine the time of death. Therefore, according to the PCR judge, defense counsel's attempt to establish reasonable doubt by demonstrating the putative impossibility of defendant traveling to South Amboy was a strategic decision made at the time of the trial and did not "rise to a level sufficient to grant a new trial."

Our standard of review is plenary on questions of law in a PCR appeal, but the factual findings of the PCR court are granted deference if they are supported by adequate, substantial, and credible evidence. State v. Harris, 181 N.J 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We agree with the PCR court's conclusion that Cook's better-alibi-defense theory did not satisfy either part of the Strickland test for ineffective assistance of counsel. Although another attorney presenting a defense at trial might have chosen to offer additional evidence of the implausibility of the State's timeline, we cannot discern that defense counsel was ineffective in the way he handled the difficult temporal issues, particularly in light of Cook's confession, which filled in many of the State's gaps.

Cook also argues that he was unfairly prejudiced by trial counsel's failure to put forth third party guilt evidence during the trial. Defense counsel, in fact, ably attempted to pursue the use of the Noga homicide but was thwarted by an adverse ruling of the trial judge. The determination that there were insufficient similarities between the two cases to warrant its inclusion into evidence was affirmed on appeal. We relied upon the trial court's "comprehensive and thoughtful written opinion," Cook I, slip op. at 16, to validate the elimination of third party guilty evidence. Defense counsel cannot be labeled ineffective for reasonably pursuing a line of defense and then failing. State v. Gary, 229 N.J. Super. 102, 116 (App. Div. 1988)

We, like the PCR judge, view these circumstances as not "ris[ing] to a level of ineffective assistance of counsel under the circumstances." Instead, Cook's argument actually operates as a stealth direct appeal, re-challenging the discretionary evidentiary decision that the Noga events had no evidentiary significance to Cook's case. Such a do-over is not permitted in an application for PCR, Rule 3:22-3, because our Rulesdo not provide an opportunity to relitigate a case that has already been decided on the merits. R.3:22-5; State v. Preciose, 129 N.J.451, 459 (1992).

Cook further argues that he was unfairly prejudiced by his attorney's failure to present a defense beyond cross-examination of the State's witnesses. We disagree.

Defense counsel zealously pursued a reasonable doubt defense at trial. The PCR judge noted that defense counsel "did in fact create doubt" through each witness he cross-examined. Ultimately, however, the final decision was up to the jury to determine if there was reasonable doubt sufficient to find Cook not guilty. Bald assertions are insufficient to support a finding that counsel's conduct was deficient. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (finding to obtain relief based on claims of ineffective assistance of counsel a "petitioner must do more than make bald assertions"), certif. denied, 162 N.J. 199 (1999).

Cook's confession remained a formidable hurdle to reasonable doubt. As noted by the PCR judge, "[w]hen you have a confession and you don't have anything else the reasonable doubt defense is reasonable, under those circumstances." Thus, mounting this type of defense was a matter of strategy, and we have no occasion to second-guess the reasonableness of such decisions. See Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Cook argues that he was unfairly prejudiced by the failure of trial counsel to hire a crime scene reconstruction expert. During the PCR proceedings Cook sought discovery of all of the evidence gathered in the course of the investigation of the Suhan murder to provide it to a forensic expert who might thereafter come up with something to challenge the conviction. The discovery was denied as unnecessary.

While the courts of New Jersey have recognized the right of defendants in post-conviction relief petitions to obtain discovery, it is not meant to allow a fishing expedition. State v. Marshall, 148 N.J. 89, 269-70, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) ("[W]e note that PCR 'is not a device for investigating possible claims, but a means for vindicating actual claims.'") When motions are made for discovery they must be based on a showing of good cause. Id. at 270. In addition, the discovery requested must also be relevant. State v. Lee, 190 N.J. 270, 282 (2007). We observe no error in the PCR court's ruling and further conclude that Cook failed to demonstrate how a crime scene expert's speculative opinions would have made a difference at trial.

We have reviewed the balance of Cook's arguments and conclude that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Cook offered many different versions of what happened the night of February 13 to February 14 before confessing his culpability.