STATE OF NEW JERSEY v. JERMAINE THOMPSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5935-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE THOMPSON,

Defendant-Appellant.

_______________________________

March 3, 2011

Submitted: February 16, 2011 - Decided:

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-03-0958.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Jermaine Thompson appeals from the February 27, 2009 order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He alleged ineffective assistance of trial counsel in failing to object to and request jury instructions. We affirm.

Defendant was convicted by a jury in 1995 of twenty-six serious crimes - seven counts of third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b; third-degree receipt of stolen property, N.J.S.A. 2C:20-7; seven counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of the lesser-included offense of fourth-degree aggravated assault, N.J.S.A. 12-1b(4); seven counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; first-degree kidnapping, N.J.S.A. 2C:13-1b(1); and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. On July 11, 1995, defendant was sentenced to an aggregate custodial term of seventy-five years with thirty years of parole ineligibility.

Defendant filed a direct appeal, asserting the following arguments:

POINT I

THE TRIAL COURT'S INADEQUATE AND MISLEADING INSTRUCTION OF KIDNAPPING DEPRIVED THE DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION.

A. THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT IT MUST FIND THAT THE DEFENDANT KNOWINGLY EITHER HARMED THE VICTIM OR RELEASED HER IN AN UNSAFE PLACE IN ORDER TO CONVICT THE DEFENDANT OF FIRST DEGREE KIDNAPPING. (NOT RAISED BELOW).

B. THE TRIAL COURT PREJUDICIALLY MISREPRESENTED THE STATE'S EVIDENCE AND OMITTED THE DEFENDANT'S EVIDENCE DURING ITS INSTRUCTION TO THE JURY ON THE CRIME OF KIDNAPPING (NOT RAISED BELOW).

C. THE TRIAL COURT'S GENERAL INSTRUCTION TO THE JURORS THAT THEIR VERDICT MUST BE UNANIMOUS WAS INADEQUATE WITH REGARD TO KIDNAPPING BECAUSE THE STATE PROCEEDED ON MULTIPLE THEORIES OF LIABILITY SUPPORTED BY CONCEPTUALLY DISTINCT ACTS: THE INSTRUCTION SHOULD HAVE REQUIRED THE JURORS TO REACH A UNANIMOUS DECISION ON A SINGLE THEORY OF LIABILITY. (NOT RAISED BELOW).

POINT II

THE DEFENDANT'S RIGHT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE.

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INCOMPLETE AND PREJUDICIAL JURY INSTRUCTION ON THE LAW OF CONFESSIONS. (NOT RAISED BELOW).

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT ADMITTED OUT-OF-COURT IDENTIFICATION EVIDENCE WITHOUT PROPERLY INSTRUCTING THE JURY ON THE LAW OF OUT-OF-COURT IDENTIFICATIONS. (NOT RAISED BELOW).

POINT V

THE DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION BY THE IMPROPER ADMISSION OF HEARSAY EVIDENCE. (NOT RAISED BELOW).

POINT VI

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT IT COULD NOT INFER FROM EVIDENCE TO PROVE SOME COUNTS THAT THE DEFENDANT HAD A CRIMINAL DISPOSITION AND THEREFORE COMMITTED ALL COUNTS OF A MULTI-COUNT INDICTMENT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION. (NOT RAISED BELOW).

POINT VII

THE TRIAL COURT'S INSTRUCTION TO THE JURY OF THE LAW OF ATTEMPT WAS INCOMPLETE AND PREJUDICIAL, THEREBY VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEEN AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION. (NOT RAISED BELOW).

POINT VIII

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

B. THE TRIAL COURT ERRED BY IMPOSING MULTIPLE CONSECUTIVE SENTENCES.

We affirmed defendant's conviction and sentence. State v. Thompson, No. A-216-95T4 (App. Div. May 6, 1997). We incorporate by reference the procedural and factual history of the case. Id. at 1-10.

This PCR ensued and was denied on the record following oral argument on February 27, 2009. In a submission of PCR counsel, defendant asserted ineffective assistance of trial counsel in failing to: (1) instruct the jury that it must find defendant either knowingly harmed the victim or released her in an unsafe place in order to convict him of first-degree kidnapping; (2) object to the court prejudicially misrepresenting the State's evidence and omitting defendant's evidence during its instruction to the jury on the crime of kidnapping; (3) argue the trial court's general instruction to the jurors that their verdict must be unanimous was inadequate with regard to kidnapping because the State proceeded on multiple theories of liability supported by conceptually distinct acts - the instruction should have required the jurors to reach a unanimous decision on a single theory of liability; (4) object to the court failing to instruct the jury on the law of confessions; (5) object to the court's failure to instruct the jury that it could not infer from evidence to prove some counts that defendant had a criminal disposition and therefore committed all counts of a multi-count indictment; and (6) object to the court's jury instructions on the law of attempt. In a pro se submission, defendant argued the trial judge violated Rule 1:8-2(d) when he and the trial attorneys agreed to designate a juror as an alternate.

The PCR judge found the petition was time-barred under Rule 3:22-12, which the State concedes is incorrect as the five-year time limitation begins to run from the date of entry of the judgment of conviction, not from the date on which the jury returned its verdict. See State v. Riley, 216 N.J. Super. 383 (App. Div. 1987).

The judge alternatively found, for the most part, the PCR allegations were the same as those rejected on direct appeal though couched in terms of ineffective assistance of counsel, and thus barred by Rule 3:22-5, which states:

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.

Nevertheless, the judge addressed and rejected each of the allegations of ineffective assistance of trial counsel and court error as without substantive merit, providing a detailed explanation as to why the arguments were insufficient to warrant relief under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced the defendant's right to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). See also State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey); State v. Preciose, l29 N.J. 451, 462-63 (l992) (to establish a prima facie claim of ineffective assistance of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits). This appeal ensued.

Defendant renews the arguments on appeal through counsel, asserting:

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. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO THE TRIAL COURT'S PREJUDICIAL SUMMARIZATION OF THE STATE'S PROOFS REGARDING THE CHARGE OF KIDNAPPING WHILE IGNORING THE DEFENSE'S THEORY OF THE CASE.

C. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO THE TRIAL COURT'S CHARGE TO THE JURY REGARDING KIDNAPPING.

D. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT BY FAILING TO OBJECT TO THE TRIAL COURT'S INADEQUATE AND INCOMPLETE CHARGE REGARDING ORAL STATEMENTS MADE BY THE DEFENDANT.

E. RULE 3:22-5 DID NOT OPERATE AS A PROCEDURAL BAR SERVING TO PRECLUDE THE TRIAL COURT FROM ADJUDICATING THE DEFENDANT'S CONTENTIONS ON A SUBSTANTIVE BASIS.

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

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12 SINCE THE PETITION WAS TIMELY FILED WITHIN FIVE YEARS OF THE DATE SENTENCING WAS IMPOSED.

Appellate PCR defense counsel concedes we did address and reject almost all of defendant's PCR claims on direct appeal, but argues in broad terms they are not procedurally barred because the ineffective assistance claims rise to the level of significant constitutional issues. See State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970) (stating that Rule 3:22-5 can be relaxed where the constitutional problems raised are of substantial import), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972). He additionally challenges some of our rulings on direct appeal as erroneous.

Based on our review of the record and applicable law, we are satisfied defendant's PCR claims are procedurally barred under Rule 3:22-5 and defendant failed to make a prima facie showing of ineffective assistance of trial counsel within the Strickland/Fritz test warranting an evidentiary hearing. Defendant's arguments renewed on appeal were sufficiently addressed by the PCR judge and do not warrant additional discussion save for the following brief comments. R. 2:11-3(e)(2).

Prior adjudication of an issue, particularly on direct appeal, generally bars PCR relief. See, e.g., State v. Harris, 181 N.J. 391, 494 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Marshall, 148 N.J. 89, 147-52, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. McQuaid, 147 N.J. 464, 484 (1997). A prior adjudication on the merits of an issue on direct appeal is conclusive and cannot be re-litigated, even if of constitutional dimensions. See, e.g., State v. Trantino, 60 N.J. 176, 180 (1972); State v. Smith, 43 N.J. 67, 74 (1964), cert. denied, 379 U.S. 1005, 85 S. Ct. 731, 13 L. Ed. 2d 706 (1965). Defendant's arguments raised on PCR were raised on direct appeal and rejected by us in a lengthy opinion. Defendant is not entitled to another bite of the apple by re-framing his prior challenges in terms of ineffective assistance of counsel. Moreover, our prior decision on direct appeal settled those issues "for all subsequent stages of the suit[,]" and are not subject to review by this court on PCR. See State v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974) (citation and quotation marks omitted).

Affirmed.