April 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY WISE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-11-3062, 00-11-3063, 00-11-3064, 00-11-3065.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 3, 2011
Before Judges Lisa and Alvarez.
Defendant Jeffrey Wise appeals from the May 6, 2009 denial of his application for post-conviction relief (PCR). For the reasons that follow, we affirm.
On September 6, 2002, after trial by jury, defendant was sentenced on four separate but related indictments to an aggregate forty years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). On count one of Essex County Indictment No. 00-11-3062, first-degree robbery, N.J.S.A. 2C:15-1, defendant was sentenced to twenty years subject to NERA; count three, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), was merged with count one. On count two, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), defendant was sentenced to a concurrent five years. In two separate Essex County Indictments, Nos. 00-11-3063 and 00-11-3065, defendant was charged with second-degree persons not to possess weapons, N.J.S.A. 2C:39-7(b), and concurrent sentences of ten years were imposed on each. Additionally, on counts one and two of Essex County Indictment No. 00-11-3064, both first-degree robberies, defendant was sentenced to concurrent twenty-year sentences subject to NERA, consecutive to the terms on the earlier indictments. Defendant received a five-year concurrent sentence on count three of that indictment, third-degree unlawful possession of a weapon, while count four, a second-degree possession for an unlawful purpose, was also merged into count one. Appropriate fines and penalties were imposed.
Defendant's direct appeal and petition for certification were denied. State v. Wise, No. A-4148-02 (App. Div. Dec. 27, 2004), certif. denied, State v. Wise, 183 N.J. 587 (2005). Although it was not decided until May 6, 2009, he filed this pro se petition for PCR on March 2, 2006.
The charges stemmed from two separate robberies occurring on August 22 and August 25, 2000. The victim, Claude Thomas, was the same in both instances; in the second incident, Thomas's nephew Shawn Moon was also robbed. On the first occasion, Thomas entered a particular housing complex in Newark to purchase heroin at approximately 7:30 p.m. He approached defendant, who claimed to be selling "good" drugs and asked Thomas to follow him. They walked towards the rear of the building when defendant suddenly put Thomas in a headlock. A third man appeared who pointed a handgun at Thomas and asked, "you want some of this?" Defendant took $70 from Thomas's pocket, and he and his accomplice fled. Thomas reported the incident to two uniformed Newark Police officers in the vicinity. Although they drove away in a marked vehicle, purportedly in search of the perpetrators, the officers never came back and no report was filed.
When Thomas returned to the same building to buy drugs with Moon around 2:00 a.m. on August 25, he encountered defendant and his accomplice once more. This time both drew guns; defendant brandished a weapon that appeared to be a .38 revolver. Defendant and his accomplice rummaged through the victims' pockets, this time taking $40 from Thomas. Thomas reported the incident to officers in a passing patrol vehicle, who searched the area without success. Thomas and his nephew were driven to the station where, after questioning, they were permitted to leave. Again, however, no police report was filed.
On August 28, at approximately 12:30 p.m., Thomas saw defendant near the scene of the robberies and immediately located two police officers. As the officers escorted defendant back towards Thomas to confirm his identification of the perpetrator, defendant indicated, according to the arresting officer who testified at trial, that he "didn't know what was going on . . . . He was unaware of why -- basically, he didn't even know the other gentleman, never came in contact with him from what I could tell." When arrested, defendant had $30.50 in his possession. At the police station, Thomas was informed no reports had been filed about the August 22 and August 25 robberies. He then gave statements as to both incidents.
Months prior to trial, defense counsel had an on-the-record discussion with the court as to whether the four indictments would be tried jointly. Subsequently, the State apparently made a joinder application which was granted, although we have no record of those proceedings.
At a March 7, 2001 pretrial conference, the court asked defense counsel about the status of witnesses whose names defendant had recently provided. Counsel explained he was experiencing some difficulty in locating them. The court directed that summaries of the proposed witnesses' testimony be supplied by March 9, 2001.
On that date, counsel advised the court that, although defendant had spoken to possible witnesses, they would not be available until the following Monday and, as a result, the judge granted an extension of time. No further record has been supplied with regard to this issue.
On the first day of trial, April 3, 2001, counsel explained that, on two occasions since the March 9 status conference, he had attempted to subpoena the following witnesses at addresses supplied by defendant: Lori Banks, Philip Malone, Amira Malone, and Carla Ware. Initially, investigators were not able to serve the subpoenas or conduct interviews because they could not gain access to the apartment building where the witnesses lived. Investigators were able to gain entry during a second visit, but the person occupying the apartment to which defendant directed them denied knowing him or any of the witnesses. Defendant was then given the subpoenas so he could attempt service himself, but they inadvertently noticed the witnesses for the wrong court date. When counsel learned of the mistake, he sent out new subpoenas by overnight mail. Defendant also attempted to serve corrected subpoenas the night prior to, and the morning of, trial, but was not successful.
Although he claimed to have served the subpoenas bearing the wrong court date, defendant did not supply any proof of service. The record does not identify any witnesses ever appearing on defendant's behalf, and counsel only summarized the anticipated testimony of one witness, Philip Malone. In support of the defense theory that Thomas's accusations were trumped-up falsehoods, Malone would corroborate that, immediately prior to his arrest on August 28, 2000, defendant sold Thomas less cocaine than Thomas paid for and the two men had argued as a result. Although counsel acknowledged none of the proposed witnesses, including Malone, had any information regarding either robbery, he contended that Malone's testimony was supported by the absence of any robbery reports filed with the Newark Police Department.
Defendant testified that on August 28 he sold Thomas $30 worth of cocaine for $50. Five minutes later, Thomas returned demanding a $20 refund. They argued, Thomas left, and approximately fifteen minutes later defendant was arrested. On cross-examination, he explained the difference between the $50 Thomas allegedly paid him and the $30.50 in his possession at the time of arrest as attributable to his purchase of $20 worth of marijuana, which he smoked with others until taken into custody.
As a final summation comment, the prosecutor stated:
In conclusion, I just want to say that on August 22nd Mr. Thomas was victimized, he was robbed. On August 25th both Shawn Moon and Mr. Thomas were victimized again. Later . . . on the 25th, to some degree, they were victimized a third time, unfortunately, by the system when they attempted to report . . . what had happened to them. Please don't let them be victimized again by the system here today.
The State contended that defendant was guilty both as a principal and as an accomplice; therefore, the judge charged the jury on both theories, adhering to the model jury charges. The judge also gave the jury instructions as to first- and second-degree robbery.
On May 10, 2002, the court denied defendant's application for a new trial. At sentencing, the court declined the State's application to impose a discretionary extended term of imprisonment on defendant as a persistent offender. See N.J.S.A. 2C:44-3a.
In support of his petition for PCR, defendant produced affidavits from Arlene Fields, with whom defendant has two children, and Edward Harris. In her July 16, 2008 affidavit, Fields said that on August 22, 2000, she and defendant attended an all-day cookout; hence, he could not have committed a robbery. She also averred that because defendant visited with their children from 9:00 a.m. to about 6:00 p.m. on August 25, 2000, he did not commit a robbery on that date either.
Harris, incarcerated when he signed his affidavit on July 16, 2008, purported to be a long-time friend of defendant. He too claimed he attended the August 22 cookout, remembered seeing defendant there, and denied any robbery took place in that general area on that date. Furthermore, he was present on August 28, 2000, when a man approached defendant asking about cocaine. Defendant sold the man "a clip of cocaine" and returned a few minutes later to demand a refund. Shortly thereafter, defendant was arrested.
The court denied defendant's petition for PCR in a lengthy oral opinion, principally because it was untimely. The judge also determined the certifications submitted in support of the application lacked credibility, among a host of other reasons with which we agree.
On appeal, defendant raises the following issues:
POINT I -
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Trial counsel failed to object to inflammatory and inappropriate remarks made by the prosecutor during closing argument
B. Trial counsel was ineffective in failing to propose an adequate charge and in failing to object to the erroneous charge
C. Trial counsel failed to investigate potential witnesses
D. Trial counsel failed to file a motion to suppress defendant's statements to police
E. Trial counsel failed to consult with defendant in a meaningful manner
F. Trial counsel failed to file a severance motion
POINT II -
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
POINT III -
THE TRIAL COURT ERRED IN NOT CHARGING THE JURY CONCERNING VERDICT OPTIONS AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED
POINT IV -
THE TRIAL COURT ERRED IN PERMITTING THE JOINDER OF TWO SEPARATE ROBBERY CASES INTO A SINGLE TRIAL AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED
POINT V -
THE TRIAL COURT ERRED IN NOT CHARGING THE JURY ON THE USE OF OTHER CRIME EVIDENCE AND THE OBLIGATION TO DECIDE EACH CASE SEPARATELY. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED
POINT VI -
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS
POINT VII -
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR
POINT VIII -
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4
POINT IX -
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Defendant also raises the following issue pro se:
THE TRIAL COURT ERRED IN NOT CHARGING THE JURY IN ACCORDANCE WITH STATE v. BIELKIEWICZ, AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish counsel's deficiency prejudiced the defense by demonstrating 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. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 58 (1987).
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must prove counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
"'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). Thus, an attorney's decisions about trial strategy should not be characterized as ineffective merely because they did not produce the desired result. See id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's decisions about trial strategy were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.
Additionally, a defendant may not raise issues by way of PCR that should have been addressed on direct appeal. See R. 3:22-3 (stating that PCR "is not . . . a substitute for appeal"). In fact, as Rule 3:22-4(a) provides, issues not raised on appeal may not be raised on PCR review unless "(1)  the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (2)  enforcement of the bar . . . would result in fundamental injustice; or (3)  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."
Prosecutors are afforded considerable leeway in closing argument so long as their comments are reasonably related to the scope of the evidence presented. State v. Harris, 141 N.J. 525, 559 (1995). Prosecutors are expected to make vigorous and forceful arguments to juries. Ibid. Forceful or graphic statements are grounds for reversal only where so egregious that the statements deprive a defendant of a fair trial. State v. Ramseur, 106 N.J. 123, 322 (1987). On the other hand, a prosecutor may always respond to assertions made by defense counsel. State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996).
On appellate review, a jury charge must be read as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973). Parties are not entitled to have a jury charged in their own words; rather, a charge that is accurate and provides the jury with all essential elements of the crimes will suffice. See State v. Vick, 117 N.J. 288, 291 (1989); State v. Thompson, 59 N.J. 396, 411 (1971). As the Supreme Court has explained, [c]orrect charges are essential for a fair trial. A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations. Thus, the court must explain the controlling legal principles and the questions the jury is to decide. So critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error. [State v. Martin, 119 N.J. 2, 15 (1990) (internal citations omitted).]
Defendant contends counsel was ineffective because he did not adjourn the trial so defendant could subpoena potential witnesses and did not adequately investigate potential witnesses or otherwise properly investigate the matter. We do not agree.
"'The exercise of utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their assistance.'" Fritz, supra, 105 N.J. at 63-64 (quoting Moore v. United States, 432 F. 2d 730, 739 (3d Cir. 1970)). In evaluating this ineffective assistance allegation, the fact that defendant had ample time to identify witnesses and assist in their investigation is irrelevant: the focus is more properly on whether counsel was adequately prepared. Id. at 64. Claims of purely speculative deficiencies in representation are insufficient to justify reversal. Ibid. In Fritz, for example, defendant never identified missing witnesses or described their potential testimony. Ibid.
Likewise, defendant in this case has never explained the testimony prospective witnesses would have given, other than Malone, whom he asserts would have corroborated his argument with Thomas on the night of his arrest. It is noteworthy, however, that Malone had no knowledge of either alleged robbery and that, despite counsel's efforts, he could not be produced.
Now on PCR, defendant proffers two affidavits lacking in credibility. It is incredible that the mother of defendant's children would have waited years after his conviction and incarceration to produce a purported alibi for both robberies. Similarly, while Harris's claim corroborates Malone's proposed testimony, it contradicts the testimony of the responding officer as it places Thomas with the officer at the moment of arrest.
In our view, counsel's efforts at investigation were more than adequate. Counsel engaged in reasonable attempts to produce witnesses whose testimony may or may not have been helpful to defendant. Because defendant has never explained how their testimony would have aided him, no colorable claim has been made.
Defendant also asserts his attorney was ineffective in failing to sever the robberies into separate trials. Indictments may be tried together where offenses could have been joined in a single indictment or accusation. R. 3:15-1(a). Two or more offenses may be charged in the same indictment if the offenses charged "are of the same or similar character or are based on the same act or transaction or on [two] or more acts or transactions connected together or constituting parts of a common scheme or plan." R. 3:7-6. Permissive joinder is proper even where separate offenses of the same nature are joined in a single indictment if they are connected together or constitute part of a common scheme or plan. State v. Baker, 49 N.J. 103, 105, cert. denied, 389 U.S. 868, 88 S. Ct. 141, 19 L. Ed. 2d 144 (1967).
If a single trial of two separate and unconnected offenses is likely to result in prejudice to the defendant, he or she may move for severance, Rule 3:15-2(b), which will be liberally granted if there is the possibility of substantial harm. Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 3:7-6 (2011). The test is whether, under N.J.R.E. 404(b), evidence of one crime would be substantively admissible to prove guilt of the other; if so, the two crimes may be tried together. State v. Chenique-Puey, 145 N.J. 334, 341 (1996).
We have not been provided the transcript of the joinder motion. It is defendant's burden to present evidence to enable us to determine whether joinder was appropriate. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (stating that on appeal defendants must produce the evidence, including transcripts, necessary for adequate review). That burden has not been met here.
In any event, defendant is procedurally barred from raising this issue by Rule 3:22-4. The question of whether a single trial of these two robberies was unduly prejudicial should have been considered on direct appeal. In any event, without a record, we have no means to determine whether any of the exceptions contained in the rule are applicable.
Defendant contends counsel was ineffective because he did not request the jury be charged on the use of other-crimes evidence with reference to each robbery. In other words, defendant argues the court's failure to specifically charge the jury that it must decide each robbery independently was prejudicial and rendered the trial unfair. Defendant asserts the jury needed to be told how to "compartmentalize" each robbery; however, he does not identify an omitted instruction or provide a case requiring such an instruction be given where similar crimes committed on two different dates are being tried. Nor does defendant explain, in light of the decision to try the indictments jointly, why such an instruction was necessary.
The judge instructed the jury it must find every essential element of each charged offense proven beyond a reasonable doubt. The judge clearly explained that there were two separate robberies that occurred on different days; he referred to the necessary guideposts in the deliberation process in terms of "the particular Count in the particular Indictment that you are considering."
In fact, the verdict sheets presented to the jury were divided by indictment; accordingly, the jury's decision was recorded in the very "compartmentalized" fashion defendant asserts was necessary. The judge said "to assist you in recording a verdict I have prepared a verdict sheet for you, actually, there's two verdict sheets, one for each set of charges . . . ." Defendant's contention is a "bald assertion" and therefore insufficient to support a claim of ineffective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170.
Again, we note defendant suggests no fact or case bringing this argument within one of the exceptions to Rule 3:22-4, rendering it barred from further consideration.
Defendant contends counsel was ineffective for failing to request either a Hampton*fn1 or Kociolek*fn2 instruction. A Hampton instruction should be given where a defendant's statement is critical to the State's case and the defendant challenges either whether the statement or some portion of it was made, or its overall credibility. State v. Jordan, 147 N.J. 409, 425 (1997). Failure to give such a charge is reversible error when the omission is clearly capable of producing an unjust result.
Ibid. "If, however, the defendant's statement is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt, or if the defendant has acknowledged the truth of the statement, the failure to give a Hampton charge would not be reversible error." Id. at 425-26 (emphasis added). Here, the statement at issue was defendant's volunteered response to police, as he was walked towards the victim for identification purposes, that he did not know what was going on and was not acquainted with Thomas.
In this case, defendant's words did not decisively tip the scale in the State's favor. Defendant contends his statement only became probative as a rebuttal to his theory of the case. An equally plausible explanation, however, is that if defendant had in fact sold drugs to Thomas, he still would have protested his innocence and denied knowing him. Accordingly, the omission of the Hampton charge was not an error.
Likewise, the omission of the Kociolek charge was not error. That charge informs jurors about the "generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Kociolek, supra, 23 N.J. at 421. As the Supreme Court has previously stated, it is a rare case where the failure to give that charge, standing alone, constitutes reversible error.
Jordan, supra, 147 N.J. at 428. In this case, nothing in defendant's brief statement to the arresting officer was critical to the State's case. The actual content of the statement did not turn on the use of specific words or a unique turn of phrase.
Given defendant's relatively innocuous comments, counsel's failure to request either the Hampton or Kociolek charge did not affect the outcome of the proceeding. Since these claims do not constitute exceptions to the bar contained in Rule 3:22-4, they will not be considered further. Although lacking in merit, the issues should have been raised on the direct appeal.
Defendant asserts counsel was ineffective because he did not request a charge in accord with State v. Bielkiewicz, 267 N.J. Super., 520, 528 (1993), advising the jury as to their options where the State's theory is accomplice liability. Here, the judge's instructions tracked the model jury charge closely.
A court is obligated to give accurate and understandable jury instructions regarding accomplice liability even where not requested. See State v. Weeks, 107 N.J. 396, 410 (1987). Defendant contends the jury should have been presented with the option of finding him guilty of a lesser-included offense because, during the August 22, 2000 robbery, he did not wield a gun. As to that incident, Thomas testified defendant lured him into a dark apartment hallway and put him in a headlock while defendant's accomplice pointed a gun as both men rifled through his pockets. These facts, however, do not call for a Bielkiewicz instruction.
The difference in grading between first- and second-degree robbery does not relate to the defendant's possession/use of a weapon. The distinction is based on whether or not the jury would believe Thomas's description of the first robbery. See N.J.S.A. 2C:15-1(b) (stating "[r]obbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon"). If Thomas was believed, the co-defendant's use of a deadly weapon while he and defendant searched Thomas's pockets reflected a shared mental state, making the Bielkiewicz charge unnecessary. For this reason, the jury did not need to be cautioned about the specific intent required by each grade of offense.
Defendant's attorney did not render less than professional counsel by failing to request a Bielkiewicz instruction, as none was warranted. Additionally, the procedural bar of Rule 3:22-4 is applicable.
Defendant asserts the prosecutor's statement to the jury that it should not victimize Thomas "a third time" was prejudicial prosecutorial misconduct. He further asserts his attorney's failure to object to the statement constituted ineffective assistance.
The facts here are analogous to situations where a jury is told that it would abdicate its obligations by failing to convict. See State v. Knight, 63 N.J. 187, 193 (1973). In Knight, although the Court did not sanction a prosecutor's comment that if members of the jury did not convict, they would not have "'met the responsibility' thrust upon them," it found the comment harmless because the prosecutor also noted several times during closing that the heart of the case was the issue of witness credibility. Ibid. Combined with the jury instructions' clear direction to reach a verdict based solely on the evidence, the remark was not unduly prejudicial. Ibid.
The comment in summation here is similarly harmless. The prosecutor merely responded to defense counsel's argument that the robberies never occurred at all, and that Thomas's claims were pure retaliation for a drug deal gone bad. This single comment falls well within the substantial leeway afforded to prosecutors. Trial counsel was not ineffective in failing to object, nor was his failure to do so prejudicial to defendant.
Defendant maintains the trial judge failed to properly instruct the jury about the limited purpose for which evidence regarding his involvement in the drug trade was admitted. Certainly, a defendant is entitled to present evidence to the jury of other crimes "if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him." State v. Williams, 214 N.J. Super. 12, 20 (App. Div. 1986). In those instances, "prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility[.]" State v. Garfole, 76 N.J. 445, 452-53 (1978).
The relevant Model Jury Charge states: The defense has introduced evidence that: [OR] You are about to hear evidence that: [Describe the evidence of other crimes, wrongs, or acts offered by the defense.]
The evidence has been offered because [Describe the defensive purpose for which the defense offered the evidence.]
You should consider this evidence, along with all other evidence in the case, in determining whether or not the State has proven beyond a reasonable doubt that defendant is the person who committed [insert appropriate offense]. [Model Jury Charge (Criminal), Proof of Other Crimes, Wrongs, or Acts - Defensive Use (N.J.R.E. 404b) (Approved 5/22/00) (internal citations and emphasis omitted).]
The difference between this charge, and that given when the State introduces "evidence of other crimes, wrongs, or acts" is significant. See R. 404(b).
When the State proffers the evidence, a jury must be told it is not to consider the evidence as establishing propensity, but for some specified limited purpose:
Whether this evidence does in fact demonstrate [state the specific purpose for which the State offers it] is for you to decide. You may decide that the evidence does not demonstrate [state the purpose] and is not helpful to you at all. In that case, you must disregard the evidence. On the other hand, you may decide that the evidence does demonstrate [state the purpose] and use it for that purpose.
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that (he/she) is a bad person. That is, you may not decide that, just because the defendant has committed other crimes, wrongs, or acts, (he/she) must be guilty of the present crime[s]. I have admitted the evidence only to help you decide the specific question of [describe specific purpose]. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that (he/she) committed other crimes, wrongs, or acts. [Model Jury Charge (Criminal), Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404b) (internal citations and emphasis omitted).]
Hence the applicable Model Jury Charge, which was not given in this case, merely reminds the jury that prior crimes evidence, when offered defensively, should be taken into account along with all the other evidence in the case. Had the judge given the instruction, he would have merely reminded the jury that defendant's theory of the case was that Thomas's claims were completely false, motivated by his desire for revenge against defendant because of a drug deal gone bad. Both counsel extensively commented about this in their closings; in fact, defense counsel presented the theory to the jury in his opening statement.
The omission here, if error at all, was harmless because the jury heard repeatedly, through other means, that it was obliged to consider the evidence of defendant's drug sale along with all the other evidence in the case. Thomas unequivocally explained his presence at the robbery location was the result of his desire to buy illegal drugs. From opening to closing, counsel wove presentation of that evidence into the singular defense theory presented to the jury. From everything they heard throughout the trial, including the charges that were given, the jury well understood they were to consider all the evidence in reaching a verdict. Therefore, it was not deficient performance on counsel's part not to have requested the defensive use of prior bad acts instruction. Failure to give the instruction did not prejudice the outcome.
Moreover, since defendant had the opportunity to address this issue on direct appeal and failed to do so, he is barred from raising it at this juncture. No further discussion is warranted in light of Rule 3:22-4.
To avoid application of the bar contained in Rule 3:22-4, a defendant must establish "exceptional circumstances." State v. Mitchell, 126 N.J. 565, 587 (1992). No such circumstances were established by any of defendant's initial claims. They certainly are not established in his remaining points, which lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). These include defendant's assertion that the jury should have been charged a lesser-included theft by deception, that a motion to suppress defendant's statement should have been filed, that no meaningful consultations took place between him and defense counsel, that counsel should have filed a motion for a new trial (which counsel did file), that trial counsel should have argued NERA was inapplicable, that the cumulative errors in the trial proceedings rendered the trial process unfair, and that the PCR judge erred by not allowing defendant an evidentiary hearing at which to more fully develop his claims.