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State of New Jersey v. Terence Thompson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 15, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TERENCE THOMPSON, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-06-1623.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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.

II.

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 DEFENSE TO CREATE REASONABLE DOUBT.

B. COUNSEL FAILED TO INTERPOSE A TIMELY OBJECTION[] TO ACCOMPLICES JUAN COLLADO AND RICHARD ALMANZAR TESTIFYING FOR THE STATE WEARING HANDCUFFS AND PRISON GARBS [sic] AND AS SUCH DEFENDANT IS RESPECTFULLY REQUESTING AN EVIDENTIARY HEARING TO FURTHER DEVELOP THE RECORD.

C. COUNSEL FAILED TO REQUEST ADEQUATE JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY.

D. COUNSEL['S] FAILURE TO REQUEST JURY INSTRUCTIONS ON IMPERFECT SELF-DEFENSE LED TO A COMPROMISE VERDICT.

Oral argument was heard on October 11, 2007, at the conclusion of which the judge denied the petition. An order memorializing the decision was entered the same day. This appeal followed.

Defendant raises the following issues for our consideration:

POINT ONE -- THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIRLY CONDUCTED POST-CONVICTION RELIEF HEARING (NOT RAISED BELOW).

(A) THE COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT DID NOT HAVE THE RIGHT TO BE PRESENT AT A NON-EVIDENTIARY POST-CONVICTION RELIEF HEARING.

(B) THE DEFENDANT WAS DENIED THE "OPPORTUNITY TO SPEAK ON HIS OWN BEHALF" IN POST-CONVICTION RELIEF. POINT TWO -- THE COURT ABUSED ITS DISCRETION BY APPLYING THE R. 3:22-4 PROCEDURAL BAR IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL WAS VIOLATED.

POINT THREE -- THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO STATE'S WITNESSES TESTIFYING IN PRISON GARB AND SHACKLED; TRIAL COUNSEL'S FAILURE TO CALL CO-DEFENDANT LEARY AS A DEFENSE WITNESS; TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY OR TO REQUEST A JURY INSTRUCTION ON IMPERFECT SELF-DEFENSE; AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S SUMMATION SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ON APPEAL.

POINT FOUR -- THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPHS 9 AND 10 OF THE NEW JERSEY CONSTITUTION.

POINT FIVE -- DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE SUBMISSIONS IN SUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S MEMORANDUM IN SUPPORT OF POST-CONVICTION RELIEF.

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 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). 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 (citation omitted). 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.

III.

In defendant's first point on appeal, he asserts two reasons supporting his claim that he was denied his right to a fairly conducted PCR hearing. First, defendant claims the PCR judge abused his discretion in ruling that defendant did not have the right to be present at the PCR hearing. Second, defendant claims he was denied an opportunity to speak on his own behalf at the PCR hearing since he was not present. Citing Rule 3:22-10, the State responds that the PCR judge "was well within [his] discretion" when he conducted the PCR hearing without defendant present.

Although a defendant "must be present for every scheduled event unless excused by the court for good cause shown," R. 3:16(a), at a PCR hearing, a "defendant's presence is not required . . . except as provided in R. 3:22-10." R. 3:16(b). Rule 3:22-10(a)*fn1 specifies that "[a] defendant in custody may be present in court in the court's discretion" and "shall be entitled to be present when oral testimony is adduced." See also State v. Mayron, 344 N.J. Super. 382, 386 (App. Div. 2001) (noting that the language of Rule 3:22-10 "permits, but does not mandate, [a] defendant's presence when a [PCR] petition is heard") (citing State v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989)).

We are satisfied that the PCR judge did not abuse his discretion in conducting the PCR hearing in defendant's absence. See United States v. Scurry, 193 N.J. 492, 504 (2008) (A trial court decision will constitute an abuse of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002))). No oral testimony was taken and he was thus not entitled to be present at the PCR hearing. R. 3:22-10.

IV.

We turn to the issue of whether defendant's PCR petition was procedurally barred. Defendant contends that the PCR judge abused his discretion when he applied the procedural bar of Rule 3:22-4 in denying his petition because his Fourteenth Amendment due process right to a fair trial was violated. He claims that his petition and the supporting arguments fall within the exceptions to Rule 3:22-4, particularly Rule 3:22-4(a)(3).*fn2 The State responds that Rules 3:22-3 and 3:22-4 bar defendant's claims of ineffective assistance of counsel because the claims could have been raised earlier, enforcement of the bar would not result in fundamental injustice, and denial of relief would not violate defendant's constitutional rights.

In his oral opinion, the PCR judge first found that, with the exception of defendant's claims regarding trial counsel's alleged failure to call Leary as a defense witness, all of defendant's claims could have been raised on direct appeal but were not. The judge therefore found that "each of these points falls under that umbrella."*fn3

PCR is governed by Rule 3:22. This rule specifically describes the grounds that are cognizable in a PCR matter, including "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." R. 3:22-2(a).

However, PCR "is not . . . a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending." R. 3:22-3; see State v. Cerbo, 78 N.J. 595, 605 (1979) ("In the absence of the timely raising of an issue available on direct appeal or a constitutional infringement, relief will be granted in such proceedings only in exceptional circumstances involving a showing of fundamental injustice." (citations omitted)). "Fundamental injustice will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or, absent conscious abuse, if inadvertent errors mistakenly impacted a determination of guilt or otherwise wrought a miscarriage of justice for the individual defendant." State v. Mitchell, 126 N.J. 565, 587 (1992) (citations and internal quotation marks omitted).

Further, a ground for relief that was not raised in the conviction proceedings or any appeal from the conviction "is barred from assertion in a proceeding under this rule." R. 3:22-4(a). There are, however, three exceptions to the general rule if "the court on motion or at the hearing finds":

(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or

(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or

(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey. [Ibid.]

This rule "sharply limits what may be raised on PCR." State v. Martini, 144 N.J. 603, 609 (1996), cert. denied, 519 U.S. 1063, 117 S. Ct. 699, 136 L. Ed. 2d 621 (1997). Where the exceptions do not apply, consideration is properly barred. State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000); State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971). However, a defendant's failure to raise ineffective assistance of counsel as an issue on appeal rarely bars raising that issue in a PCR petition. R. 3:22-4(a)(2); State v. McQuaid, 147 N.J. 464, 484 (1997).

Of course, "[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." R. 3:22-5.

We are satisfied that the PCR judge correctly ruled that defendant's due process claims were procedurally barred. Defendant's first argument regarding the State's witnesses testifying in restraints and prison garb is based on factual information developed entirely at trial and could have been raised on direct appeal. R. 3:22-3. The same is true regarding defendant's argument that the lack of a jury instruction on imperfect self-defense deprived him of his due process rights. Ibid. Defendant's claim that he had a due process right to proof beyond a reasonable doubt, which was violated when the State failed to prove an unlawful mens rea, also could and should have been raised on direct appeal. Because it was not, it is barred by Rule 3:22-3. Finally, even defendant's claim that his counsel was ineffective with respect to these three issues could have been raised on direct appeal because it is based solely on events occurring entirely at trial. Ibid.

Rule 3:22-4(a) also bars defendant's PCR petition. First, defendant cannot show that the facts on which his claims are based could not have been discovered before this petition. Because his claims are based on information in the trial record, they are barred by Rule 3:22-4(a)(1). Surely, the exercise of reasonable diligence would have revealed the alleged problems.

Second, defendant has not made a showing of "fundamental injustice" because he has not proven that the prosecutor or the judge abused the process under which he was convicted or made other inadvertent errors impacting the determination of his guilt. R. 3:22-4(a)(2). Thus, the above claims do not fall within the exception found in Rule 3:22-4(a)(2). This is particularly so considering the significant amount of evidence proving defendant's guilt. Mitchell, supra, 126 N.J. at 587.

Last, the new rules of constitutional law cited by defendant are State v. Artwell, 177 N.J. 526 (2003), and State v. Kuchera, 198 N.J. 482 (2009). In Artwell, decided three years after defendant's trial, the Supreme Court "conclude[d] that the trial court's failure to state on the record its reasons for requiring defendant's witness to appear in restraints was reversible error." Artwell, supra, 177 N.J. at 530.

The Court held that, "[b]ecause the appearance of a defense witness in restraints presents a risk of unfair prejudice to a defendant, the trial court may subject a witness to physical restraint only when it has reason to believe it is necessary to maintain the security of the courtroom." Id. at 537 (citation and internal quotation marks omitted). The Court required trial judges to conduct hearings on the use of restraints, state their reasons for permitting restraints on the record outside the presence of the jury, and give appropriate jury instructions. Id. at 537-38. Because the trial judge had not complied with this procedure, Artwell was deprived of a fair trial, and his conviction was reversed. Ibid.

As to witnesses appearing in prison garb, the Artwell Court found that the State had no vital interest in a defense witness's attire. Id. at 539. "Instead, that practice only prejudices a defendant both by undermining his or her witness's credibility and suggesting a defendant's guilty by association. Accordingly, going forward, a trial court may not require a defendant's witness to appear at trial in prison garb." Ibid. (emphasis added) (citations omitted).

In Kuchera, supra, 198 N.J. at 486, the Court extended the rule in Artwell to the State's witnesses. Because Kuchera did not object to the State's witnesses appearing in restraints, the Court reviewed defendant's contentions under the plain-error standard. Id. at 497. However, the restriction on State's witnesses appearing in prison garb was not based on a defendant's right to a fair trial but on the Court's right to supervise the criminal courts. Id. at 486. Thus, it is not of constitutional dimension.

We conclude that Rule 3:22-4(a)(3) does not permit defendant to challenge the appearance of the witnesses in prison garb as the rule in Artwell on this issue applied to the defendant's witnesses and was prospective only, and the rule in Kuchera had no constitutional underpinning. As a consequence, we only need to consider the appearance of the State's witnesses in restraints.

As a preliminary matter, we appear to have disagreed on the issue of whether the Artwell/Kuchera rules respecting restraints should be applied retroactively. Compare State v. King, 390 N.J. Super. 344, 363-65 (App. Div.), certif. denied, 190 N.J. 394 (2007), and State v. Russell, 384 N.J. Super. 586, 591-99 (App. Div. 2006), overruled on other grounds by Kuchera, supra, 198 N.J. at 500, with State v. Echols, 398 N.J. Super. 192, 214-15 (App. Div. 2008), rev'd on other grounds, 199 N.J. 344 (2009). However, these cases, except for Echols, were on direct appeal and understandably gave at least pipeline retroactivity to the Artwell and Kuchera limitations on witnesses testifying in restraints. We have found no case giving the rules in Artwell and Kuchera full retroactivity.

In Echols, supra, 398 N.J. Super. at 200-21, on appeal from the denial of PCR, we recognized that the defendant's contention that the trial judge erred in allowing witnesses to appear in restraints and prison garb "cannot be the basis for relief because the case law did not fully develop until after the trial in this case." Id. at 215 (citations omitted). We also observed that "it is readily apparent that these new parameters on the appearances of defendants and witnesses during trial were intended to have only prospective effect." Ibid. (citing Artwell, supra, 177 N.J. at 539).

In reversing our determination that the defendant in Echols was entitled to PCR on other grounds, the Supreme Court did not disturb our conclusion that the rules in Artwell and Kuchera could not be raised on PCR. Echols, supra, 199 N.J. at 359-65. For the following reasons, we are satisfied that the Supreme Court would grant only pipeline retroactivity to these rules.

"A case announces a new rule of law for retroactivity purposes if there is a 'sudden and generally unanticipated repudiation of a long-standing practice.'" State v. Feal, 194 N.J. 293, 308 (2008) (quoting State v. Purnell, 161 N.J. 44, 53 (1999)). The rules in Artwell and Kuchera are new rules of law. In such a case, there are four options:

(1) make the new rule of law purely prospective, applying it only to cases whose operative facts arise after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying the old rule to all other pending and past litigation; (3) grant the new rule . . . [pipeline] retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and, finally, (4) give the new rule complete retroactive effect. [Ibid. (quoting State v. Burstein, 85 N.J. 394, 402-03 (1981)).]

To determine which level of retroactivity is appropriate, the Supreme Court requires courts to conduct a three-pronged inquiry: "'(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.'" State v. Knight, 145 N.J. 233, 251 (1996) (quoting State v. Nash, 64 N.J. 464, 471 (1974)).

The first factor in this analysis may be applicable when the effect of the new rule "'is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function' and raises [a] 'serious question about the accuracy of guilty verdicts in past trials.'" Feal, supra, 194 N.J. at 308-09 (quoting Burstein, supra, 85 N.J. at 406-07). On the other hand, "in cases where the new rule is designed to enhance the reliability of the fact-finding process, but the old rule did not 'substantially impair' the accuracy of that process, a court will balance the first prong against the second and third." Ibid. (citations omitted). Here, permitting the State's witnesses to testify in restraints did not "substantially impair" the reliability of the fact-finding process, permitting us to "balance the first prong against the second and third." Ibid. (citations omitted).

The second factor assesses whether the old rule was "administered in good faith reliance" on constitutional norms and whether the "number of precedents reaffirming its validity" had caused the rule to "bec[o]me firmly entrenched in the law." Purnell, supra, 161 N.J. at 55-56 (citations and internal quotation marks omitted). Finally, under the third factor, retroactivity is usually not afforded if it "'undermine[s] the validity of large numbers of convictions.'" Feal, supra, 194 N.J. at 309 (quoting Knight, supra, 145 N.J. at 252).

We are satisfied that the second and third prongs strongly militate against complete retroactive application of Kuchera because such an application will disturb many convictions that have been affirmed on direct appeal. As a consequence, defendant cannot challenge the appearance of the State's witnesses, Collado and Almanzar, in restraints on PCR, and his attorney cannot be found to have been ineffective in failing to raise the issue.

That leaves only the issue of whether defendant was denied his due process right to present a complete defense because his counsel failed to call co-defendant Leary, whose testimony allegedly could have established a reasonable doubt. This issue is not barred by Rules 3:22-3 or -4. Thus, we must consider whether defendant was deprived of the effective assistance of counsel in this last respect.

V.

In Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692 (1984), 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.; see also State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002). Second, the defendant must demonstrate that the professional errors were so prejudicial as to deprive him of a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

Consequently, informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. Petrozelli, supra, 351 N.J. Super. at 22. Trial strategy is clearly within the discretion of competent trial counsel. State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div.), certif. denied, 94 N.J. 531 (1983).

A.

Defendant contends that the failure to call Leary was not a permissible strategic decision given the capacity of the testimony to establish reasonable doubt in the jurors' minds. He contends that the PCR court "abuse[d] its discretion when it denie[d] post-conviction relief based on an incorrect standard of trial 'strategy.'"

The State responds that the decision to refrain from calling Leary as a witness was a strategic decision made by counsel and defendant after they discussed whether to call Leary and the reasons for not calling him. It further argues that defendant has failed to establish the second Strickland prong because the alleged failure to call Leary did not change the outcome of the trial. Even if Leary testified that defendant did not shoot Lamb, he was acquitted of knowing or purposeful murder without that testimony, and there was sufficient evidence to sustain the conviction for felony murder.

Where a defendant has failed to prove the second prong of Strickland, a court is not required to analyze the sufficiency of the proofs respecting the first prong. Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699-700. A review of the record strongly supports the State's contention that defendant cannot prove the second prong of Strickland even if his counsel's performance fell below the standard of reasonable competence. Defendant was charged with first-degree knowing or purposeful murder. The jury acquitted him on that charge. Defendant participated in the planned robbery beyond any reasonable doubt. During the execution of the robbery, Lamb was murdered. These facts establish the elements of felony murder, of which defendant was convicted. N.J.S.A. 2C:11-3a(3) (stating that criminal homicide constitutes murder if committed while the actor, acting either alone or with one or more other persons, is committing a robbery and in the course thereof, "any person causes the death of a person other than one of the participants"). Here, the felony and the murder occurred close in time and place, were causally connected, and were all part of a continuous transaction. State v. Mirault, 92 N.J. 492, 500 (1983). Whether or not defendant was the shooter, having been shot himself, he was there when the shooting started and was guilty of felony murder. Thus, we need not consider whether defendant has satisfied the first prong of Strickland.

B.

Defendant also argues that trial counsel rendered ineffective assistance when he did not object to the prosecutor's statements during summation regarding the credibility of a police officer who testified. The challenged statement was as follows:

You saw Sergeant Folks on the witness stand, his demeanor. He's a friendly, outgoing type guy. I'm sure that's the way the defendant took him. He wasn't overbearing and belligerent with [defendant]. He talked to him in a normal every day manner like all of you probably speak with one another in the jury room.

Defendant claims that counsel's performance in this regard was deficient under the first prong of the Strickland test and that he suffered prejudice because counsel's failure to object strengthened the State's case and weakened his.

As the State correctly observes, defendant is raising this claim for the first time on appeal. It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). This is particularly so when the opportunity to present the question or issue to the trial court was readily available. See Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Accordingly, only issues of sufficient public concern or that concern a lower court's jurisdiction will be considered for the first time on appeal. Ibid.; see also State v. Churchdale Leasing, Inc., 115 N.J. 83, 100 (1989) ("When an issue is of sufficient public concern, however, we may consider it even if it is raised for the first time on appeal." (citations omitted)).

Because defendant did not present this issue to the PCR judge, we decline to entertain it on appeal. The issue does not go to the jurisdiction of the PCR court or concern a matter of sufficient public interest to justify our consideration because it is barred by Rules 3:22-3 and -4(a), the prosecutor's comment was made in response to defense counsel's summation, and it was unlikely to have affected the outcome of this case. See State v. Johnson, 216 N.J. Super. 588, 617 (App. Div.) (finding that "errors complained of, even if valid, did not affect the outcome of the proceeding"), certif. denied, 107 N.J. 647 (1987).

C.

Defendant also raises a claim of ineffective assistance of appellate counsel. He alleges that appellate counsel was ineffective because had these issues of ineffective assistance of trial counsel been raised on direct appeal, his convictions would not have been affirmed. The State first responds that this issue was not raised before the PCR court and should therefore not be considered here. It further argues that there is no substantive merit to defendant's argument because appellate counsel "vigorously represented defendant" and defendant has failed to establish the two-prong Strickland test. Because defendant did not raise this issue before the PCR judge, we will not consider it on appeal. Nieder, supra, 62 N.J. at 234. We also note that appellate counsel is not required to raise every possible issue on appeal and, even had he raised the issues raised in this appeal, they would have been found to be without merit.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are defendant's claim that he was denied his right to confrontation during the PCR hearing and his attempt to incorporate by reference all other issues raised in his submissions to the PCR judge.

Affirmed.


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