On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-11-4698.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 6, 2011 -
Before Judges Cuff, Sapp-Peterson, and Simonelli.
Defendant Adonis Thomas appeals from an order denying his petition for post-conviction relief (PCR). He is serving three consecutive life terms in prison with thirty-year parole ineligibility terms on each term for the murder of two men, and a twenty-five year parole ineligibility term for the attempted murder of a third. Following an evidentiary hearing on defendant's claim that his trial attorney provided ineffective assistance of counsel because he failed to pursue an alibi defense and locate his alibi witness,*fn1 Judge Casale entered an order dismissing the petition. We affirm.
On September 13, 1997, Hassan Carter, David Hodge, and Derek Smith drove to the Shadows nightclub in Newark. Carter parked his car on South 12th Street, placed the pull-out radio under the seat, and secured an anti-theft club to the steering wheel. They entered the nightclub at approximately 11:00 p.m. and left around 2:30 a.m. During this time, defendant broke the window of the car and took out the radio. As the three men approached Carter's car, they noticed that the parking lights and the interior light were on. Upon closer inspection of the car, they saw that the passenger-side window was broken, the radio was gone, and the club was not on the wheel.
The three friends got into the car, and saw Lonnie McNeil, sitting on the porch of 123 South 12th Street. Carter started the car and moved forward towards McNeil. Carter asked McNeil whether he had seen anyone break into his car. As McNeil and Carter spoke, Smith "saw a guy come out from the side of the house with his hands over his face and with a gun pointing at [them] . . . ." Smith exited the car from the driver's side and began to run towards Central Avenue. He noticed Hodge trying to get out of the car as well. As Smith was running, he heard five or six gunshots. A neighbor, Crystal Roberson, and McNeil identified defendant as the shooter. Carter died as a result of multiple gunshot wounds. Hodge was killed by a gunshot wound to the back.
This court ordered an evidentiary hearing regarding defendant's alibi based on a 2003 statement of Vernon Smallwood, also referred to as Raheem. Smallwood stated that he was drinking with defendant at a nearby bar at the time of the shootings. At the evidentiary hearing ordered by this court, four witnesses testified: the trial attorney, Smallwood, and two investigators from the Public Defender's Office.
Janine Beer represented defendant at his 1998 trial. She testified that defendant told her "he was at a bar called the Blue Ang[el] Bar sleeping when someone name[d] Raheem woke him up and told him that there had been a shooting outside . . . ." Beer stated that her files note that Raheem lived at 142 or 146 South 10th Street and she had a phone number for him. She also testified that she had a diagram of the area that defendant helped her draw. This diagram had the name Vernon written on it. She stated that she and her investigator, Dalton Bramwell, spent a lot of time on the case because it was a double homicide and they went to the scene of the shooting many times. Although she did not do any field work on the alibi, she testified that Bramwell went to the bar to speak with the barmaid but was never able to locate Vernon or Raheem, who she learned were the same person.
Having read the statement that Smallwood submitted in 2003, trial counsel stated that she would have used his statement because it was consistent with the defense, if she determined he was a credible witness. She also testified that she did not know that McNeil had a pending charge at the time of the trial or that he had been admitted to the Pretrial Intervention Program (PTI).
Smallwood testified that at the time of the shooting he was in the Blue Angel Bar on the corner of South 11th Street and Central Avenue. He stated that defendant arrived at the bar at approximately 12:30 or 1:00 a.m., about an hour-and-a-half or two hours after Smallwood arrived. Although they were not friends, Smallwood knew of defendant because he was close to defendant's father. When defendant arrived at the bar, the two exchanged greetings, and defendant sat a few seats away from him. There were only seven people in the bar. About forty-five minutes after defendant arrived, "somebody came running into the door, [and] said some people down the street had got shot . . ." At that time, defendant was sitting at the bar talking to some other people. Smallwood and defendant left the bar and walked toward the scene of the shooting.
Smallwood stated he learned about a week after the shooting that defendant had been arrested, so he went to speak with defendant's father. Smallwood testified he told defendant's father that defendant was at the bar at the time of the shooting, and he and a couple of people in the bar at the time could verify defendant's presence there. Smallwood then went to the county jail to see defendant. He stated he gave defendant his name so defendant could call him as a witness. Smallwood testified that he expected someone from the Public Defender's Office or the Prosecutor's Office would contact him, so he did not come forward. He acknowledged he was familiar with the location of these offices from his prior dealings with the criminal justice system. At the hearing, Smallwood could not remember if he lived at 142 or 144 South 10th Street during that time. He later remembered that he lived at 144 South 10th Street, but conceded he gave this address because the prosecutor asked him the question three times.
Smallwood also testified that he gave a statement on January 21, 2003, the first time he spoke with anyone about the shooting. In this statement, he related that defendant was not drinking when he was at the bar. At the hearing, Smallwood related that he "didn't have [his] eyes on him 24/7 so [he couldn't] say he was definitely not drinking but [he knew] the bartender didn't serve him drinks."
Francis Riley,*fn2 an investigator with the Public Defender's Office, testified that McNeil was arrested under the name Lonnie Neal on June 23, 1997, and was admitted into the PTI program on June 12, 1999. He further testified that McNeil failed to appear for a violation of PTI, and on August 25, 2000, his PTI was terminated. On September 22, 2000, McNeil was sentenced to three years in state prison after pleading guilty to unlawful possession of a handgun. He could not state when anyone realized Lonnie McNeil and Lonnie Neal were the same person. Riley admitted that he did not obtain any identification, a photograph, or any fingerprints from him. Riley was recalled to testify on the second day of the hearing, and testified that he attempted to subpoena McNeil for the hearing. He agreed that McNeil was being "intentionally deceptive" to avoid appearing in court.
Bramwell, another investigator for the Public Defender's Office, testified that he was assigned to investigate defendant's case in 1997 and 1998. He noted the investigative request directed him to several witnesses, including a young man named Raheem. He testified that he probably saw the diagram of the house that trial counsel possessed.
Bramwell testified that "the alibi was to find a young man, and go to [a] bar that's on . . . Central Avenue, where [defendant] was attending a party." Bramwell went there to look for an individual named Raheem. He noted that trial counsel might have given him the name Vernon, but she did not have a last name. Furthermore, trial counsel did not give him an exact address where Bramwell could find this individual. Bramwell went to a multi-dwelling house on South 10th Street, but the only person who answered the door did not know of anyone who fit the description provided by Bramwell. However, he kept ringing the doorbells, left his cards, and asked several other people in the community if they knew this individual. He also spoke to one of defendant's cousins, who told Bramwell that she would give his card to Raheem.
Bramwell also searched for Raheem at the bar. He testified that he spoke with some of the barmaids. They told him they remembered defendant being in the bar the day of the party, but that the day of the party was not the day of the shooting. He did not show them a photo of defendant because the only photo he had was one of defendant in jail, and he does not "like to show a jail photo of someone because it sends the wrong message." Neither barmaid remembered Raheem.
When Bramwell learned that Vernon was Raheem's real name, he returned to the area, but was unable to speak with anyone at the house on South 10th Street. He noted at the hearing that he is familiar with the convention of using street names in Newark, ...