On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-06-1623.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 13, 2010 -- Decided:
Before Judges A.A. Rodriguez, C.L. Miniman and LeWinn.
Defendant Terence Thompson appeals from an order denying post-conviction relief (PCR) in connection with his 2000 convictions for first-degree felony murder, third-degree unlawful possession of a weapon, first-degree armed robbery, second-degree conspiracy to commit robbery, and second-degree possession of a firearm for an unlawful purpose. We now affirm the order denying PCR.
In the early morning hours of July 31, 1996, the Camden Police Department received a report of shots fired at the Pleasant Gardens Apartments. Several officers responded to the scene where the body of Michael Lamb was found. At least three shell casings were found at that time, and two additional casings were found in the daylight hours. No firearms were recovered from the scene. Bullets and bullet fragments were subsequently recovered from the victim's body during the autopsy. The autopsy revealed that Lamb suffered thirteen fatal wounds from seven bullets that injured his right lung, liver, right adrenal gland, spinal cord, brain, intestines, and pelvis.
Lamb was a drug dealer who had arranged to purchase drugs from Juan Collado for $15,000 in cash. Collado was staying with his friend, Richard Almanzar, in the Pleasant Gardens Apartments. Collado had traveled to Camden from New York about three weeks earlier to sell drugs with Almanzar's assistance. Collado and Almanzar had been introduced to another man involved in the drug trade, Ronnie Leary, and had also been introduced to Lamb for the purpose of selling a large quantity of drugs to him.
Although Collado had not previously sold drugs to Lamb, he arranged to do so on the night of July 30, 1996. Early in the evening, Collado and Almanzar met Leary and defendant at a pizzeria because Collado wanted to learn more about Lamb. While Collado was speaking with Leary, Lamb paged Collado about purchasing one and one-half kilos of cocaine. Leary told Collado that Lamb would likely purchase drugs from him once or twice and then rob him or have him killed. Collado asked Leary what he should do, Leary told him to set up the deal, and he agreed to do it.
The four men then planned to rob Lamb rather than sell drugs to him. The actual plan was for Collado and Almanzar to meet Lamb, who would be told to be alone and bring the money. They would check the money and have Lamb follow them in his car to the Pleasant Gardens Apartments. There, Leary and defendant were to be hiding so that Collado could lead Lamb into an ambush, and Leary and defendant could rob him. Collado and Almanzar arranged to meet Lamb later that night. When they met, Lamb followed Collado and Almanzar to the Pleasant Gardens Apartments.
Upon arriving there, Collado and Lamb exited their vehicles and walked down a sidewalk where Leary and defendant were waiting in the bushes. Defendant emerged behind Collado and Lamb, planning to grab the money. However, Collado and Lamb turned around and saw defendant coming at them. Lamb pulled out his gun and shot defendant. Defendant and Lamb began wrestling, and Leary and defendant began shooting Lamb, which both Collado and Almanzar saw. Collado grabbed the money and ran to his car, where Almanzar was waiting. Leary and defendant then got into Leary's minivan, and both vehicles drove away.
The two vehicles met just outside the apartment complex. Realizing defendant had been shot, Leary said that he would take defendant to the hospital. He would then contact Collado and Almanzar to meet, count the money, and distribute each person's share. Upon returning to the Pleasant Gardens Apartments, Collado and Almanzar were questioned by the police and taken to the police station for further questioning. The Camden police arrested Leary on August 7, 1996, after he admitted his involvement in Lamb's murder. Collado and Almanzar were also arrested for their involvement in the homicide.
On October 23, 1996, two investigators from the Camden County Prosecutor's Office visited defendant in the hospital. The investigators again spoke with defendant on October 25, 1996, after he was discharged. Defendant informed them that he was not fully truthful when he spoke with them on October 23, 1996, and he then confessed to the crimes.
A Camden County Indictment returned on June 4, 1997, charged defendant with second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (Count One); first-degree armed robbery, contrary to N.J.S.A. 2C:15-1 (Count Two); first-degree murder, contrary to N.J.S.A. 2C:11-3a(1) and -3a(2) (Count Three); first-degree felony murder, contrary to N.J.S.A. 2C:11-3a(3) (Count Four); second-degree possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count Five); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (Count Six); and second-degree certain persons not to have a weapon, contrary to N.J.S.A. 2C:39-7 (Count Ten). A jury trial was conducted on nine nonconsecutive days between January 19 and February 10, 2000. The jury returned its verdict on February 10, 2000, finding defendant guilty on Counts One, Two, Four, Five, and Six and not guilty on Count Three. Count Ten had been dismissed by the trial judge when he granted defendant's motion to dismiss.
Defendant was sentenced on April 28, 2000. The judge found defendant eligible for an extended term under N.J.S.A. 2C:43-7.1 and, after weighing the relevant aggravating and mitigating factors, imposed the following sentence: Count One was merged into Count Two, on which the judge imposed a prison term of twenty years with a ten-year period of parole ineligibility, to run concurrently with the sentences imposed under Counts Four and Five. On Count Four, the judge sentenced defendant to life in prison without parole, to run concurrently with the sentences imposed under Counts Two and Five. On Count Five, defendant was sentenced to ten years in prison with a parole ineligibility period of five years, to run concurrently with the sentences imposed under Counts Two and Four. On Count Six, defendant was sentenced to five years in prison with a parole ineligibility period of two and one-half years, to run consecutively to the sentences imposed under Counts Two, Four, and Five. Defendant received credit for 1233 days spent in custody.
Defendant appealed from his conviction and sentence and raised three points on appeal:
POINT I - THE TRIAL COURT ERRED IN FAILING TO HOLD A HEARING TO DETERMINE WHETHER THE DEFENDANT'S PHYSICAL CONDITION PRECLUDED HIS COMPETENCY TO STAND TRIAL.
POINT II - THE DEFENDANT'S PHYSICAL CONDITION RENDERED HIM INCOMPETENT TO GIVE VOLUNTARY STATEMENTS. (PARTIALLY RAISED BELOW[.])
POINT III - THE TRIAL COURT ERRED BY IMPOSING AN EXCESSIVE SENTENCE.
A. THE TRIAL COURT ERRED IN FAILING TO MERGE THE DEFENDANT'S CONVICTIONS FOR ROB[B]ERY AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO HIS CONVICTION FOR FELONY MURDER.
B. THE TRIAL COURT ERRED IN RUNNING THE DEFENDANT'S SENTENCE FOR POSSESSION OF A WEAPON WITHOUT A PERMIT CONSECUTIVELY WITH HIS OTHER CONVICTIONS. [Thompson, supra, slip op. at 2-3.]
We affirmed defendant's convictions but remanded for a sentencing modification. State v. Thompson, No. A-1745-00 (App. Div. Nov. 12, 2003), certif. denied, 179 N.J. 373, cert. denied, 543 U.S. 888, 125 S. Ct. 164, 160 L. Ed. 2d 148 (2004). On February 13, 2004, the judge merged the convictions on Counts One, Two, and Five with the conviction on Count Four. The aggregate prison sentence remained life in prison without parole.
On October 13, 2004, defendant filed a pro se verified PCR petition. PCR counsel filed a memorandum of law in support of the petition on December 19, 2006. Defendant raised the following issues:
POINT ONE -- COUNSEL['S] PERFORMANCE WAS DEFICIENT AND PETITIONER WAS PREJUDICED BY COUNSEL'S PERFORMANCE.
A. COUNSEL['S] FAILURE TO CALL CO-DEFENDANT LEARY AS A WITNESS WAS PREJUDICIAL IN THAT DEFENDANT WAS DENIED A VIABLE ...