On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-02-0562.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 4, 2011 - Decided Before Judges C.L. Miniman and LeWinn.
Defendant Al'Shamoon Thompson appeals from a July 30, 2009 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted in 1997 of first-degree purposeful and knowing murder of Leeman Bernard Hicks, first-degree attempted murder of Kenya Johns, second-degree aggravated assault of Johns, third-degree unlawful possession of a handgun, second-degree possession of a handgun for an unlawful purpose, and fourth-degree possession of a silencer. The facts supporting that conviction were recited in our opinion affirming the conviction and sentence subsequently imposed. State v. Thompson (Thompson I), No. A-0406-97 (App. Div. Jun. 23, 1999) (slip op. at 2-3).
At sentencing, the judge determined that defendant was eligible for Graves Act treatment under N.J.S.A. 2C:43-6c. Id. at 3. He merged the convictions for aggravated assault and possession of a handgun for an unlawful purpose with his conviction for first-degree attempted murder of Johns. Ibid. On the murder conviction, the judge sentenced defendant to a custodial term of life with a thirty-year period of parole ineligibility. Ibid. On attempted murder, he sentenced defendant to a consecutive term of twenty years with a ten-year period of parole ineligibility. Ibid. On the unmerged handgun offense, the judge sentenced defendant to a five-year term to run consecutively to the twenty-year term. Ibid. He also sentenced defendant to an eighteen-month concurrent term on his conviction for possessing a silencer. Ibid. Thus, "[t]he aggregate sentence [was] life in prison plus twenty-five years with a forty-year period of parole ineligibility." Ibid. In his appeal from his conviction and sentence, defendant raised the following issues:
POINT I - THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL WHEN PROSECUTION WITNESS TIM WRIGHT REPEATEDLY STATED THAT HE KNEW DEFENDANT FROM NORTHERN STATE PRISON.
POINT II - THE COURT ERRED IN REFUSING TO ALLOW DEFENDANT TO QUESTION JOHNS[,] WHO WAS THE SOLE EYEWITNESS, ABOUT DRUGS FOUND IN HER SYSTEM AT THE TIME OF THE OFFENSE.
POINT III - THE PROSECUTOR'S ALLUSION TO DEFENDANT'S EXERCISE OF HIS CONSTITUTIONAL RIGHT TO REMAIN SILENT CONSTITUTED REVERSIBLE ERROR. (Not Raised Below). [Id. at 3-4.]
We affirmed and addressed Point II as follows:
As to the limitations on cross-examination of [Johns], the trial judge ruled that she could be questioned as to the specifics of her drug use, but that she could not be cross-examined on a hospital drug screen which revealed the presence of unquantified amounts of opiate and barbiturate metabolites in her urine. He concluded that, in the absence of expert testimony to explain what the urine screening results meant (in terms of when the drugs were ingested or their effect), the probative value of the test results would be outweighed by their prejudice to the State. N.J.R.E. 403.
Clearly, the hospital drug screen indicated that [Johns] had ingested a drug [sometime] in the recent past, thus providing a good faith basis for questions by defense counsel as to her drug use on the night in question.
We agree, however, that in this case, without specific evidence which would link the urine test results to impaired perception, the relevance of the document itself was attenuated at best. On the other hand, the prejudice to the State that the jury would ascribe to the report----that it would be viewed as negative character evidence of [Johns]----was significant. Under the particular circumstances of this case, the judge's N.J.R.E. 403 analysis is entitled to our deference. [Id. at 4-6.]
Defendant filed a pro se verified PCR petition. He asserted four grounds supporting such relief:
POINT I - [DEFENDANT] WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL['S] FAILURE TO REQUEST EXPERT TESTIMONY CONTRARY TO [U.S. CONST. AMEND. VI] AND [N.J. CONST. (1947)] ART. I, PARA. 10.
POINT II - THE LOWER COURT ERRED[:] (a) DENYING REQUEST FOR MISTRIAL; (b) FAIL[ING] TO [VOIR] DIRE THE JURY, CONCERNING THE STATE WITNESS [WRIGHT'S] KNOWLEDGE OF NORTHERN STATE PRISON AND KNOWLEDGE OF DEFENDANT[,] DENIED OF [sic] THE RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT III - [DEFENDANT] WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CONTRARY TO [U.S. CONST. AMEND. VI] AND [N.J. CONST. (1947)] ART. I, PARA. 10.
POINT [IV] - THE ACCUMULATION OF ERRORS DEMAND THAT [DEFENDANT] BE RETRIED. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
Defendant more specifically listed twenty instances of alleged ineffective assistance of counsel.
The Public Defender assigned to represent defendant filed a brief on his behalf in which counsel raised the following issues:
POINT I - [DEFENDANT] WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL [-] THE ROOTS OF THE RIGHT TO EFFECTIVE COUNSEL AND THE APPLICABLE STANDARD OF REVIEW[.]
A. The Standards Set Forth In [Cronic*fn1 ] and ...