STATE OF NEW JERSEY v. DONALD THOMAS (09-12-1320, PASSAIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1813-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v,
DONALD THOMAS,
Defendant-Appellant.
_________________________
Submitted July 19, 2022 – Decided August 11, 2022
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 09-12-1320.
Jardim, Meisner & Susser, PC, attorneys for appellant
(Michael V. Gilberti, on the briefs).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant, Donald Thomas, appeals from a February 11, 2021 Law
Division order denying his second petition for post-conviction relief (PCR).
After carefully reviewing the record in view of the governing legal principl es,
we affirm.
I.
This case arises from a gang-related armed robbery and felony murder
committed in July 2009. In 2012, a jury convicted defendant of first-degree
felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-
1(a)(2); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); and violations of regulatory provisions relating to firearms,
N.J.S.A. 2C:39-10(a). The weapons and robbery convictions were merged with
the felony murder conviction, and the trial judge granted the State's motion to
sentence defendant to an extended term of sixty years in prison, subject to the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On direct appeal, we affirmed defendant's convictions and sentence. State
v. Thomas, No. A-5424-11 (App. Div. Feb. 22, 2016). The Supreme Court
denied certification. State v. Thomas, 227 N.J. 217 (2016). In February 2017,
defendant filed his first PCR, claiming that he received ineffective assistance
from both his trial and appellate counsel. After hearing oral arguments on
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defendant's petition, the first PCR judge, who was also the trial judge, convened
an evidentiary hearing. In April 2018, the judge denied that petition. We
affirmed that decision, State v. Thomas, No. A-2032-17 (App. Div. Dec. 20,
2018).
On January 5, 2021, defendant filed the present PCR. He contends that
he is entitled to a new trial based on what he claims is newly discovered evidence
in the form of potential testimony from two witnesses, Z.J. and M.W. 1 The
second PCR judge (PCR court) denied defendant's petition without an
evidentiary hearing, rendering an oral decision on the record.
The relevant facts pertaining to the robbery and murder for which
defendant was convicted are set forth in our direct appeal opinion and in our
opinion affirming the denial of defendant's first PCR. To briefly summarize, the
State proved at trial that defendant, a ranking member of a street gang, ordered
a juvenile gang member, D.S., to rob and shoot the victim, L.O. D.S. was fifteen
years old at the time of the shooting. D.S. testified that he joined the street gang
when he was thirteen years old. D.S.'s brother introduced him to defendant, who
was "a big homey of [their] group," meaning that he had "ranking" in the gang.
1
Recognizing that this is a gang-related case, we use initials to protect the
privacy interests of the victim, his family, and witnesses.
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3
A few weeks before the shooting, defendant asked D.S. to hold a handgun
gun for him "until he asked for it back." On July 8, 2009—two days before the
robbery and murder—defendant told D.S. that he needed the gun back and D.S.
returned it to him.
According to D.S., on the night of the murder he was with defendant and
other gang members at a bar. Defendant asked D.S. to leave with him and they
walked out onto a street. Defendant gave D.S. a gun and ordered him to rob
L.O., who was sitting in a car parked on the street. Defendant ordered D.S. to
shoot L.O. if he did not comply.
While defendant watched, D.S. approached the driver's side of the car in
which L.O. and a friend were sitting. D.S. knocked on the window and pointed
a gun at L.O. and the friend. D.S. instructed L.O. "to give me his money and
his chain." When L.O. attempted to drive away, D.S. shot him. L.O. later
succumbed to his gunshot wounds. Together, D.S. and defendant ran from the
scene. D.S. returned the gun to defendant at defendant's request.
D.S. testified that he pulled the trigger on purpose "because [he] was told
to." D.S. testified that another gang member threatened him, leading D.S. to
believe that he would be killed if he refused to commit the robbery.
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At trial, the State presented video surveillance from the bar. The video
showed defendant with D.S. and two other men just before the murder. A
detective also testified that he investigated the murder and interviewed
defendant. The detective described several inconsistencies with defendant's
statements to the police, including that defendant initially denied knowing D.S.
Defendant raises the following contentions for our consideration:
POINT I
THE LAW DIVISION ERRED AS A MATTER OF LAW IN
APPLYING THE CARTER CRITERIA [STATE v. CARTER, 85
N.J. 300, 314 (1981)] AND IN DENYING MR. THOMAS THE
RELIEF REQUESTED.
A. THE COURT ERRED IN REJECTING MR.
THOMAS' PETITION
i. THE STANDARD FOR NEWLY-
DISCOVERED EVIDENCE.
ii. THE COURT ERRED IN HOW IT APPLIED
THE STANDARD FOR NEWLY-
DISCOVERED EVIDENCE.
iii. [M.W.]'S AFFIDAVIT PROVIDES
SUBSTANTIVE, EXCULPATORY
EVIDENCE.
iv. [Z.J.'S] AFFIDAVIT PROVIDES
SUBSTANTIVE EXCULPATORY EVIDENCE.
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B. THE COURT ERRED IN NOT ORDERING AN
EVIDENTIARY HEARING ON THESE MATTERS.
Defendant also contends in his reply brief:
POINT I
[M.W.]'S AFFIDAVIT PROVIDES SUBSTANTIVE,
EXCULPATORY EVIDENCE
POINT II
WHEN VIEWED TOGETHER WITH [M.W.]'S
TESTIMONY, [Z.J.'S] AFFIDAVIT PROVIDES
SUBSTANTIVE, EXCULPATORY EVIDENCE
POINT III
THE COURT ERRED IN NOT ORDERING AN
EVIDENTIARY HEARING ON THESE MATTERS.
II.
Because we affirm substantially for the reasons explained by the PCR
court, we need not re-address defendant's arguments at length. We add the
following comments.
Post-conviction relief serves the same function as a federal writ of habeas
corpus. State v. Preciose, 129 N.J. 451, 459 (1992). "A jury verdict that has
been upheld on appeal 'should not be disturbed except for the clearest of
reasons.'" State v. Nash, 212 N.J. 518, 541 (2013) (quoting State v. Ways, 180
N.J. 171, 187 (2004)). Accordingly, when petitioning for PCR, a defendant must
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establish by a preponderance of the credible evidence that he or she is entitled
to the requested relief. Ibid. (citing Preciose, 129 N.J. at 459). The defendant
must allege and articulate specific facts that "provide the court with an adequate
basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
We review the denial of a PCR petition affording "deference to the trial court's
factual findings . . . 'when supported by adequate, substantial and credible
evidence.'" State v. Harris, 181 N.J. 391, 415 (2004) (alteration in original)
(quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).
Short of obtaining immediate relief, a defendant may prove that an
evidentiary hearing is warranted to develop the factual record. See Preciose,
129 N.J. at 462–63. A defendant is entitled to an evidentiary hearing only when
(1) he or she is able to prove a prima facie case, (2) there are material issues of
disputed fact that must be resolved with evidence outside of the record, and (3)
the hearing is necessary to resolve the claims for relief. R. 3:22-10(b). A
defendant "must do more than make bald assertions" to establish a prima facie
case entitling him to an evidentiary hearing. State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999); see also State v. Porter, 216 N.J. 343, 355 (2013)
(second alteration in original) ("[A] defendant is not entitled to an evidentiary
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hearing if the 'allegations are too vague, conclusory, or speculative to warrant
an evidentiary hearing[.]'" (quoting State v. Marshall, 148 N.J. 89, 158 (1997))).
Aside from the substantive constitutional principles that govern PCR
claims, our Supreme Court has promulgated court rules that prescribe the
practices and procedures for filing and reviewing PCR petitions. R. 3:22-1 to
-12. Rule 3:22-4(b) explains when a defendant may file a second or subsequent
petition for PCR. That rule provides:
A second or subsequent petition for post-conviction
relief shall be dismissed unless:
(1) it is timely under R. 3:22-12(a)(2); and
(2) it alleges on its face either:
(A) that the petition relies on a new rule of
constitutional law, made retroactive to
defendant's petition by the United States
Supreme Court or the Supreme Court of New
Jersey, that was unavailable during the pendency
of any prior proceedings; or
(B) that the factual predicate for the relief sought
could not have been discovered earlier through
the exercise of reasonable diligence, and the facts
underlying the ground for relief, if proven and
viewed in light of the evidence as a whole, would
raise a reasonable probability that the relief
sought would be granted; or
(C) that the petition alleges a prima facie case of
ineffective assistance of counsel that represented
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the defendant on the first or subsequent
application for postconviction relief.
[R. 3:22-4.]
Turning to the substantive legal principles governing this appeal, the test
for granting a new trial based on newly-discovered evidence is stringent. See
Carter, 85 N.J. at 314. The Court in Carter stressed
that to qualify as newly discovered evidence entitling a
party to a new trial, the new evidence must be (1)
material to the issue and not merely cumulative or
impeaching or contradictory; (2) discovered since the
trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably
change the jury's verdict if a new trial were granted. All
three tests must be met before the evidence can be said
to justify a new trial.
[Ibid. (citations omitted).]
III.
Applying the foregoing legal principles to the matter before us, we agree
with the PCR court that defendant failed to meet the demands of the Carter test.
Defendant argues that the guilty verdicts for felony murder and robbery are
based on what he characterizes as the "uncorroborated testimony" of D.S.
Defendant argues that affidavits sworn to by Z.J. and M.W. "directly refut[e]
[D.S.'s] story, casting great doubt on the jury's verdict and establishing
[defendant's] innocence." The PCR court carefully reviewed those affidavits
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and correctly applied the three-element test for a new trial based on newly
discovered evidence.
We note with respect to Z.J.'s affidavit, the PCR court initially determined
that defendant's new PCR contention was procedurally barred because Z.J.'s
potential testimony was already considered as part of the first PCR. In these
circumstances, we believe defendant's second PCR was subject to dismissal
because he failed to establish that the factual predicate for the relief he seeks
could not have been discovered earlier through the exercise of reasonable
diligence. R. 3:22-4(b)(2)(B). Despite this deficiency, the PCR court proceeded
to consider defendant's contention on its merits, applying the substantive test for
newly discovered evidence set forth in Carter.
The PCR court determined that Z.J. was not a newly-discovered witness
because defendant had previously presented the same affidavit from her as part
of his first PCR. Defendant has thus failed to establish the second prong of the
Carter test, which requires that the potential testimony could not have been
discovered by reasonable diligence.
The PCR court also examined the content of Z.J.'s May 14, 2019 affidavit
in view of the trial evidence and determined that she failed to provide details
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about the gun she claims to have observed 2 so that her affidavit does not
establish that the gun she saw in her hallway was the gun used to commit the
present murder. We add that, as an acknowledged gang member, D.S. might
have had access to more than one gun. The PCR judge concluded that defendant
failed to establish the third prong of the Carter test because Jones' testimony
would not have led the jury to a different verdict. We have no basis upon which
to overturn that determination. This is not a situation in which the alleged newly
discovered evidence "would shake the very foundation of the State's case and
almost certainly alter the earlier jury's verdict." Nash, 212 N.J. at 549.
Turning to M.W.'s affidavit, the gravamen of defendant's argument is that
it weakens D.S.'s testimony. 3 As the PCR judge aptly noted, even accepting as
true the claims made in M.W.'s affidavit, his testimony would merely contradict
2
Z.J. attests in her May 14, 2019 affidavit that
[o]n the day of July 10, 2009, I noticed a hand gun in
my hallway. I asked [whose] gun it was and that they
need[ed] to take it out of my hallway. That's when
[D.S.] said it was his gun and he grabbed it and put it
in his pants and said[,] "My bad, I'm sorry, I got it."
3
In his October 16, 2019 affidavit, M.W. attests that he did not discuss the
robbery with defendant and D.S. in the bar that night. He instead claims that
they simply had drinks together, in direct contradiction to D.S.'s account of what
transpired at the meeting at the bar.
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and impeach portions of D.S.'s testimony. M.W.'s potential testimony thus fails
to meet the requirements set forth in the first prong of the Carter test. 85 N.J. at
314. Relatedly, the PCR court also determined that M.W.'s potential testimony
would not have changed the jury verdict. We agree that defendant has failed to
establish that M.W.'s testimony was "of the sort that would probably change the
jury's verdict if a new trial were granted." Ibid.To the extent we have not addressed them, any remaining contentions
raised by defendant lack sufficient merit to warrant discussion. See R. 2:11-
3(e)(2).
Affirmed.
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