May 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ADONIS THOMAS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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, and that parents do not always know their children's street names.
Judge Casale filed a written opinion denying defendant's PCR application. He first analyzed defendant's claim that he received ineffective assistance of counsel for failure to locate and call Smallwood as an alibi witness. Judge Casale stated that an examination of the relevant case law "in light of the facts of the case, and Smallwood's testimony clearly reveals that the efforts of trial counsel and her investigator fall well within any valid definition of 'reasonable professional assistance.'" Furthermore, he noted that even if Smallwood had been located, "he probably would not have been used, and his testimony is so biased and incredible it would not have changed the result."
Judge Casale's assessment of the impact of Smallwood's alibi evidence was informed by his findings of inconsistencies between Smallwood's version of events at the bar and defendant's testimony at the Miranda*fn3 hearing. Smallwood stated defendant did not drink; defendant testified he "did cognac shots and drugs" that evening. Defendant referred to a party at the bar; Smallwood stated there were only seven patrons. Moreover, Smallwood knew defendant and his family for years and had a criminal record that included three indictable convictions by 1997.
By contrast, Judge Casale found trial counsel and Bramwell credible, and noted that "whatever information was given by defendant was properly followed up by them." He stated: It is unclear whether [defendant] identified "Raheem" as "Vernon." It is unclear whether he gave the proper address. Even Smallwood didn't know his own proper address. Bramwell was familiar with the area and the people located therein. He visited the area numerous times. He spoke to barmaids at the Blue Angel, defendant's family members, interviewed residents of the neighborhood. He went to the addresses provided by . . . defendant. Despite these efforts, which were substantial ("it was a homicide"), Bramwell was unable to corroborate defendant's alibi, other than to confirm he did frequent the Blue Angel Lounge, and was at a party there with Smallwood the night before the shootings.
Thus, the judge determined that there was no showing of ineffective assistance of counsel on this issue because defendant failed to satisfy the first prong of the relevant test. Furthermore, even if defendant met the first prong, the second would fail. "Simply put, Smallwood was a terrible witness. He lacked credibility, specificity, was biased in favor of defendant, and his criminal record would have affected what little credibility he possessed in front of a jury."
Next, Judge Casale discussed defendant's claim that the alibi witness constitutes newly discovered evidence that justifies a new trial. He noted: "[D]efendant and Smallwood both admit meeting and discussing the 'alibi' prior to trial, and Smallwood provided defendant with the information needed to contact him. Therefore, defendant's contention that the 'alibi' was not known nor discoverable prior to trial is baseless." The court thus rejected defendant's contention that he should be granted a new trial.
While this matter was pending on remand, two new issues emerged: whether trial counsel properly addressed evidence of gun powder residue and whether the prosecutors improperly withheld information about McNeil's pending criminal charges. As to the first issue, that trial counsel was ineffective because she "failed to obtain expert testimony regarding the lack of gunpowder residue testing in an effort to obtain a Clawans*fn4 charge on the State's failure to have done such testing," Judge Casale rejected this claim. He stated defendant did not provide any case law in support of this contention.
Finally, Judge Casale discussed defendant's claim that the State violated the Brady*fn5 standard for disclosure of the criminal charges pending against McNeil. Characterizing this argument as the "best argument advanced by defendant," the judge rejected the claim, noting that there was "no evidence produced that the Assistant Prosecutor who tried the case possessed this knowledge prior to or at trial." He stated there was no "competent proof that the witness who testified against [defendant] at trial is the same person who had the pending drug and gun charges at the time of trial." Moreover, the judge pointed out the fact that he had provided defendant with "ample opportunity to produce this witness at a hearing, but defendant was unable to do so." Furthermore, Judge Casale remarked that this issue "goes far beyond the scope of the Appellate Division remand[, which] was based upon ineffective assistance of counsel regarding the alibi witness, Vernon 'Raheem' Smallwood."
Nevertheless, Judge Casale noted that it is hard to believe that the person who received PTI from the State really received a benefit as he eventually wound up in State Prison for 3 years. If he provided such a benefit to the State with his trial testimony in 1998, why was he not protected in 2000 on his PTI Termination?
Moreover, Judge Casale stated that "there was overwhelming testimony as to defendant's guilt even if McNeil's testimony was totally discredited." Lastly, the judge held that the issue was not proper for a PCR application, and should have been raised on direct appeal. He noted, however, that in light of the Appellate Division's ruling on the overwhelming evidence in the case, it is very difficult to comprehend that this argument would have carried much weight at that forum. As the record shows, McNeil was a very reluctant witness. His reticence at trial could hardly be construed as an attempt to curry favor with the State.
Defendant subsequently located McNeil, and filed an affidavit signed by Lonnie Neal in support of his motion for reconsideration. In the affidavit, Lonnie Neal stated that the name McNeil was mistakenly recorded on his statement to police and the charges against him were under the name Neal.
Judge Casale denied defendant's motion for reconsideration. He held the motion was not timely. On the merits, Judge Casale stated that "the affidavit of Mr. Neal does not mean that the Court's prior decision was clearly incorrect or -- or irrational, that the Court did not consider the evidence, the Court had its new information that would change the result." He noted that Neal "never says in any affidavit that he was offered a deal in return for favorable testimony or that he -- the State curried favor with him." He repeated the reasons given in his written opinion, and concluded that this affidavit does not change the end result. Finally, Judge Casale indicated that this request for a rehearing was "not a proper application on a motion for reconsideration."
On appeal, through counsel, defendant raises the following arguments:
THE COURT ABUSED ITS DISCRETION IN NOT FINDING THAT THE STATE FAILED TO DISCLOSE THAT A WITNESS HAD A PENDING CRIMINAL CHARGE WHEN HE TESTIFIED.
THE COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING NECESSARY TO ESTABLISH THAT THE STATE FAILED TO TURN OVER BRADY MATERIAL DURING THE TRIAL.
THE COURT ERRED IN FAILING TO FIND THAT THE DEFENDANT HAD RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL FOR NOT CALLING VERNON SMALLWOOD AS A WITNESS DURING TRIAL.
In a pro se supplemental brief, defendant raises the following arguments:
Point I: Trial Counsel was Ineffective for
Failing to Find and to Present Vernon Smallwood as an Alibi Witness at Trial.
Point II: Vernon Smallwood's Testimony at
Defendant's Trial Could not Have been Impeached by Use of Defendant's Pretrial Hearing Testimony.
Point III: The Proffered Testimony of Vernon
Smallwood is Newly Discovered Evidence Requiring a New Trial.
Point IV: The Cumulative Effect of Trial
Counsel's Failure to Present an Alibi Defense and the State's Failure to Disclose Material Evidence Deprived Defendant of Due Process.
Point V: The Proffered Testimony of Vernon
Smallwood Combined with the Undisclosed Impeachment Evidence Constitute Newly Discovered Evidence Requiring a New Trial.
In all criminal prosecutions, the defendant has a Constitutional right to assistance of counsel. U.S. Const. amend. VI. To establish a claim for ineffective assistance of counsel, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). New Jersey adopted this analysis in State v. Fritz, 105 N.J. 42, 58 (1987).
As to the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Attorneys are held to a standard of "reasonable competence." State v. Davis, 116 N.J. 341, 351 (1989).
With respect to the second prong, it requires "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. That is, "there is 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.
We discern no basis to disturb the disposition of this petition. Judge Casale had the opportunity to hear the testimony of the key witnesses regarding the purported alibi defense, including the alibi witness. Not only did he find the alibi witness not credible, he also found the trial attorney and the two investigators credible witnesses. The judge specifically noted the inconsistencies between the testimony of defendant and his alibi witness about events at the bar on the evening of the shooting, and recognized the "baggage" the alibi witness carried as a witness. The judge accepted the trial attorney's testimony that she would have evaluated his credibility and the risks posed to the defense, if he had been located before or during trial. His familiarity with defendant and his family, his serious criminal record, and the inconsistencies between the version of events offered by defendant and Smallwood counseled against using him as a witness.
In addition, defendant did not establish a need for an evidentiary hearing on the issue of the prosecutor's knowledge of the criminal charges against McNeil. Nor did defendant establish as a matter of law that the failure of the prosecutor to reveal the charges denied defendant due process of law and requires a new trial.
In Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Our Supreme Court has noted there are three elements to a Brady violation: "The evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material." State v. Nelson, 155 N.J. 487, 497 (1998), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999).
In determining whether the evidence is favorable to the accused, the Supreme Court has noted the Brady rule encompasses both impeachment and exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985).
As to the second element, the disclosure rule "applies only to information of which the prosecution is actually or constructively aware." Nelson, supra, 155 N.J. at 498. However, courts can impute the knowledge to an individual prosecuting attorney. See, e.g., State v. Russo, 333 N.J. Super. 119, 135 (App. Div. 2000) (imputing the knowledge of a Newark police officer to the Essex County Prosecutor's Office and the individual trial prosecutor). Thus, "the 'prosecution' for Brady purposes encompasses not only the individual prosecutor handling the case, but also extends to the prosecutor's entire office, as well as law enforcement personnel and other arms of the state involved in investigative aspects of a particular criminal venture." Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 824 (10th Cir.) (citation and footnote omitted), cert. denied sub nom. Mondragon v. Smith, 516 U.S. 905, 116 S. Ct. 272, 133 L. Ed. 2d 193 (1995); see also Nelson, supra, 155 N.J. at 499.
Finally, evidence will be deemed material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494; see also State v. Landano, 271 N.J. Super. 1, 36 (App. Div.), certif. denied, 137 N.J. 164 (1994).
Although beyond the scope of the remand ordered by this court, Judge Casale addressed the issue, and we will do so also. First, we are reluctant to impute knowledge to the assistant prosecutor, who tried this case in 1998, of the charges pending against McNeil. Our review of his June 1998 testimony reveals no suggestion that either the prosecutor or defense counsel knew that McNeil used another name. Both counsel addressed him as Mr. McNeil; neither inquired whether he used another name. McNeil did not disclose he used another name. He responded to a subpoena directed to and served on Lonnie McNeil. The fact that it is not apparent from the record that the assistant prosecutor knew that McNeil used another name counsels against imputing knowledge of the pending charges under the name Lonnie Neal. Moreover, the record is bereft of any information to suggest that the assistant prosecutor should have known of the charges.
Furthermore, the state of the trial evidence in support of the verdict is such that there is not a reasonable probability that disclosure of the pending charges and his PTI admission to the jury would have so damaged his credibility that the verdict would be undermined. McNeil was a reluctant witness. He testified that he was afraid of the police. He never spoke to either the police or anyone from the prosecutor's office until about a week before the trial and then only in response to a subpoena. In short, he did not present himself as a witness eager to help the State obtain a conviction and secure any benefit to himself.
Finally, defendant's argument that discovery of the alibi witness and the impeachment evidence is newly discovered evidence that warrants a new trial is without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).