On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-03-0958.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 16, 2011 - Decided:March 3, 2011
Before Judges Axelrad and R. B. Coleman.
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:
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).
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 ...