State v. Green

• Decision Date: 23 May 1994
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Thomas GREEN, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 15

274 N.J.Super. 15

643 A.2d 18

STATE of New Jersey, Plaintiff-Respondent, v. Thomas GREEN, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted April 25, 1994.

Decided May 23, 1994.

Susan L. Reisner, Acting Public Defender, for appellant (William Welaj, designated counsel, of counsel and on the brief).

Deborah T. Poritz, Atty. Gen., for respondent (Paul H. Heinzel, Deputy Atty. Gen., of counsel and on the brief).

Before Judges BAIME, CONLEY and VILLANUEVA.

The opinion of the court was delivered by

BAIME, J.A.D.

Defendant Thomas Green appeals from convictions for felony murder ( N.J.S.A. 2C:11-3a(3)), possession of cocaine with intent to distribute ( N.J.S.A. 2C:35-5b(2)), theft by receiving stolen property ( N.J.S.A. 2C:20-7) and violating regulations pertaining to the purchase and sale of firearms ( N.J.S.A. 2C:39-10). The jury also found defendant guilty of reckless manslaughter ( N.J.S.A. 2C:11-4b), kidnapping ( N.J.S.A. 2C:13-1b(1)), possession of cocaine ( N.J.S.A. 2C:35-10a(1)), possession of a firearm for an unlawful purpose ( N.J.S.A. 2C:39-4a), and possession of a handgun without a permit ( N.J.S.A. 2C:39-5b), but these convictions were merged at sentencing. The trial court sentenced defendant to a thirty year custodial term to be served without parol eligibility on the felony murder conviction. A consecutive ten year sentence with a five year parole disqualifier was imposed on the possession of cocaine with intent to distribute conviction. Concurrent sentences were imposed on the remaining convictions.

Although numerous arguments are advanced in the copious briefs submitted by defendant and his appellate attorney, the principal claim is that he was deprived of the effective assistance of counsel. Defendant contends that he is entitled to an automatic reversal because the lawyer who conducted his defense at trial was suspended from the practice of law for failure to pay his assessment to the client security fund. He also asserts that trial counsel's chronic alcoholism and drug addiction, which became apparent only after the lawyer's arrest for possession of cocaine following the jury's verdict, created a rebuttable presumption that his representation was ineffective.

We hold that the attorney's temporary suspension for failure to pay the annual fee did not, by itself, deprive defendant of his constitutional right to counsel. We also conclude that trial counsel's drug dependency did not generate a presumption of inadequate representation. Our thorough examination of the record does not support the thesis that trial counsel made errors so serious as to deprive defendant of a fair trial. We thus affirm defendant's convictions.

I.

Defendant was tried on consolidated indictments. Stripped to its essentials, one indictment alleged that Green, Jon Brett Hemby and Milton Adams kidnapped and murdered Larry Williams. The other charged Green alone with drug and assorted narcotics-related offenses. The State's theory was that defendant and the codefendants were engaged in a drug distribution scheme and that they kidnapped and murdered Williams in retaliation for the victim's earlier robbery of one of their confederates.

Taalib Muhammad was the prosecution's chief witness. According to Muhammad, on August 24, 1989, he and Williams were walking along Dayton Street in Newark when they were accosted by defendant, Hemby and Adams who had emerged from one of two automobiles that had stopped suddenly at the curb. One of the men accused Muhammad and Williams of "beating [their] runner." While defendant's attention was focused on Muhammad, the other two men, both brandishing handguns, grabbed Williams and "shoved [him] into" one of the automobiles. As the two men grappled with Williams, Muhammad managed to seize defendant, placing him in a "choke hold." The other automobile, driven by a young woman, suddenly "u-turned," causing Muhammad to lose his balance and release the defendant. As defendant ran toward the car containing Williams, he shouted to his compatriots, "kill the mother fuckers." One of the armed men opened fire, narrowly missing Muhammad who was nevertheless able to escape.

Muhammad testified that he was familiar with defendant prior to the incident. Several weeks before the killing, he and Williams had robbed cocaine from several "dealers" in the area. Muhammad believed that defendant was associated with the men they had robbed because he was often seen driving a late model BMW or Volvo in the vicinity and frequenting a building from which cocaine was generally sold.

Williams's body was discovered on Frelinghuysen Avenue the next day. He had a single bullet wound to the chest. Upon canvassing the area, the police located a 13 year old girl who had witnessed the incident. She observed five men engaged in an altercation. Although the witness was unable to identify any of the individuals involved, she testified that she observed a tall man "holding" a shorter person who was protesting that he was "not the one who had done it." Another man stood on the grass restraining a fourth individual. According to the witness, a fifth man emerged from near a parked automobile and fired several shots.

Subsequent to the victim's death, Muhammad, who was incarcerated on other charges, described the incident to a prosecutor's investigator. Although Muhammad claimed that he did not expect favorable treatment, he ultimately entered into a plea agreement relating to pending drug charges. Muhammad identified defendant and the codefendants from photographic arrays. He also showed the police where defendant resided.

Defendant was arrested at his home on October 20, 1989. The police discovered a substantial amount of cocaine as well as drug paraphernalia, including a triple beam scale, a bowl containing a sifter and rubber bands, and a large quantity of empty vials. The police also confiscated a police scanner radio, a pistol, and a .22 caliber revolver containing ten rounds of ammunition.

Defendant was transported to police headquarters where he was advised of his constitutional rights. In his written statement, defendant admitted that he was present when Williams was shot but denied participation in the kidnapping and killing. Defendant claimed that he was lured to the scene by Muhammad upon the pretense that he had a supply of firearms for sale. According to defendant, Hemby, who was also present, shot and killed Williams, Muhammad's accomplice in the scheme, after Muhammad pulled out a gun and threatened to kill Green. Defendant explained that Hemby and Adams grabbed Williams and Hemby shoved him into defendant's automobile. Defendant denied that any shots were fired during the altercation on Dayton Street. The shooting took place "across the street from Kentucky Fried Chicken on Frelinghuysen Avenue."

Defendant elected to testify. According to his account, Terrence Romer and Muhammad approached him outside the apartment complex where he and Romer resided to determine whether he was interested in purchasing an Uzi machine gun. After agreeing upon a price, Muhammad departed, but returned to the apartment building shortly thereafter and directed defendant to drive his car to a location on Dayton Street. Accompanied by Muhammad, Williams, Hemby and Adams and followed by his girlfriend, Andrea Miles, defendant drove to the prearranged spot. Defendant testified that Muhammad handed him the key to his automobile which was parked nearby and told him to open the trunk. Defendant recounted that, after he gave $300 to Hemby, Muhammad grabbed him, put a gun to his head, and threatened to kill him. While this was taking place, Hemby allegedly seized Williams and threw him into defendant's automobile. Defendant testified that he then "broke away" from Muhammad's grip and ran to his car. He heard "a couple" of "gunshots." With Adams seated in the hatchback area and Hemby restraining Williams in the back seat, defendant drove off. While driving, defendant heard Williams moaning. Hemby told defendant he had shot Williams in the leg. Defendant testified that he immediately stopped the car and Hemby and Adams pushed Williams out the door. Throughout his testimony, defendant disavowed the assertion that he participated in the kidnapping and shooting of Williams. While admitting that his statement to the police deviated from his trial testimony in various particulars, he claimed that he signed the document only because he was told his girlfriend would otherwise be arrested and his child taken to a foster home.

Defendant's account of the incident was partially corroborated by Terrence Romer and the victim's girlfriend, Mindy Thomas. Thomas testified that she, Muhammad and Williams ingested drugs on the night of the killing. Muhammad and Williams then left their hotel room, carrying toy guns which Thomas believed resembled an Uzi machine gun, and a .38 caliber revolver. Romer testified that Muhammad approached him outside the apartment building and inquired whether he knew anyone interested in buying a gun. At that point, defendant allegedly arrived and agreed to purchase a weapon. Muhammad allegedly left the area but returned shortly thereafter with Williams. Romer last saw defendant, Hemby, Adams, Muhammad and Williams enter Green's automobile.

Based upon this evidence, the jury found defendant guilty of the specified charges. Prior to sentencing, defendant's trial attorney, R.R., was arrested for possession of cocaine. It was also learned that the attorney had been suspended from the practice of law for failing to pay his assessment to the client security fund and that his suspension continued throughout defendant's trial. The Public Defender's Office assigned an attorney to represent defendant at sentencing.

While this appeal was pending, we granted defendant's application for a remand to the Law Division to enable him to move for a new trial based upon newly discovered evidence...