STATE OF NEW JERSEY VS. TIANLE LI (11-05-0690, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1834-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIANLE LI,

Defendant-Appellant.
_______________________

Submitted April 13, 2021 – Decided June 24, 2021

Before Judges Gilson and Moynihan.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. 11-05-0690.

Ferro & Ferro, attorneys for appellant (Nancy C. Ferro,
on the briefs).

Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 After the State presented evidence of: a contentious divorce between

defendant Tianle Li and her husband, Xiaoye Wang; defendant's prior threats to

poison her husband; defendant's access to thallium through her work at Bristol-

Myers Squibb; her initial denial of access to thallium; records showing the

thallium bottles ordered by defendant were returned to storage with less content

than when defendant received them despite other records showing defendant

never used any thallium in the chemical reactions she performed at work; articles

about thallium found in defendant's laptop case; defendant's booking of one-way

flights to China for her and her son; and defendant's admission to her cellmate

that she had poisoned her husband with the thallium she obtained from work,

defendant was convicted by jury of first-degree murder, N.J.S.A. 2C:11-3(a)(1),

(2), and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4), in

connection with the thallium-poisoning death of her husband. We affirmed

defendant's conviction. State v. Li, No. A-1318-13 (App. Div. Apr. 24, 2018)

(slip op. at 4), certif. denied, 236 N.J. 35 (2018).

Defendant now appeals from the PCR court's order denying her petition

for post-conviction relief (PCR) without an evidentiary hearing, arguing:

POINT ONE

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 THE PCR COURT ERRED IN DENYING POST-
CONVICTION RELIEF ON DEFENDANT'S
APPLICATION.

POINT TWO

TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL ON THE ISSUE OF
INTERVENING CAUSE BY FAILING TO PRESENT
MEDICAL EXPERT TESTIMONY.

POINT THREE

TRIAL COUNSEL GAVE INEFFECTIVE
ASSISTANCE REGARDING DEFENDANT'S RIGHT
TO TESTIFY ON HER OWN BEHALF.

POINT FOUR

MULTIPLE ERRORS BY COUNSEL
CUMULATIVELY PREVENTED DEFENDANT
FROM RECEIVING A FAIR TRIAL.

Reviewing the factual inferences drawn by the trial court and its legal

conclusions de novo because the trial court did not conduct an evidentiary

hearing, State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016), we are

unpersuaded and affirm substantially for the reasons set forth in Judge Michael

A. Toto's written decision in which he concluded defendant's claims were

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procedurally barred and failed to meet the Strickland-Fritz standard1 for

establishing ineffective assistance of counsel.

Judge Toto aptly set forth the facts of this case in his written decision; we

will repeat only those necessary to address defendant's claims. As the trial

judge, Judge Toto granted the State's in limine motion and precluded defendant

from asserting as an intervening cause the alleged medical malpractice of the

doctors who treated Wang after his admission to the hospital on January 14,

2011 until his demise twelve days later.

Defendant claims her trial counsel was ineffective for failing to submit a

medical expert report in response to the State's motion, instead relying on four

affidavits of merit authored in support of the Wang estate's civil suit against the

hospital and doctors. Defendant also avers trial counsel failed to call a medical

expert to testify "on the issue of intervening cause for failure to obtain timely

heavy metal test results" that would have supported her

1
To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the two-pronged test formulated in Strickland v. Washington, 466
U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105
N.J. 42, 58 (1987), first by "showing that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment," then by proving he suffered prejudice due to counsel's deficient
performance, Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 52.
Defendant must show by a "reasonable probability" that the deficient
performance affected the outcome of the proceeding. Fritz, 105 N.J. at 58.
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 theory . . . that the medical malpractice and gross
negligence of the medical personnel in failing to
promptly request and follow through with heavy metal
tests, including thallium, had caused the death of . . .
Wang. Conversely, had . . . Wang been diagnosed in a
timely manner which met the standards of reasonable
medical care, he would have been able to survive and
recover.

We agree with Judge Toto that defendant was barred from raising this

issue because we had addressed it on direct appeal and concluded "[t]his was

not a case involving an intervening cause." Li, slip op. at 25. We observed

"[n]othing broke the causal chain between defendant's administration of

thallium to Wang and his death," id. at 27, the intended consequence of

defendant's poisoning with, as Judge Toto noted in his decision, thallium levels

that exceeded the limits of the reporting system at the Mayo Clinic lab to which

Wang's urine samples were sent. Specifically, we held: "No action or inaction

of the hospital staff altered the natural course of events between the

administration and Wang's death." Ibid.

"[A] defendant may not use a petition for post-conviction relief as an

opportunity to relitigate a claim already decided on the merits." State v.

McQuaid, 147 N.J. 464, 483 (1997); see R. 3:22-5. Defendant's argument is

therefore barred.

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 Defendant's references to the State's witnesses' testimony and the report

submitted by Steven M. Marcus, M.D. do not alter our previous determination.

While the snippets of trial testimony from the State's medical experts, in the

light most favorable to defendant, may establish delayed diagnosis of thallium

poisoning, they do not alter that Wang died as a direct consequence of that

poisoning. Moreover, Marcus's report does not establish the treatment Wang

received was an intervening cause. Indeed, Marcus conceded "[i]t is impossible

to know for certain what the final outcome might have been if the diagnosis had

been made appropriately and promptly." Marcus observed that "there are cases

of thallium poisoning that are successfully treated with survival" which he

opined "would have likely have been the case . . . if the [hospital] staff had

treated [Wang] early in the course of his hospitalization." The survival of which

Marcus spoke is that from defendant's poisoning. Even assuming the hospital

staff was negligent, even grossly negligent, that did not set "the natural course

of events" that led to Wang's death, State v. Pelham, 176 N.J. 448, 461 (2003)

(citation omitted); defendant did that by poisoning him with thallium.

Defendant counsel's representation was not ineffective. An intervening

cause was not, nor could it have been, established.

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 We fully agree with Judge Toto's analysis and conclusion that the record

belies defendant's argument that her counsel failed "to properly inform

defendant of the repercussions of her not testifying on her own behalf at trial."

As the judge noted in his PCR decision, in response to his questioning during

the trial, defendant confirmed counsel had discussed her right to testify and that

she had sufficient time to consult with counsel about that decision. Judge Toto

also recounted that counsel had represented

to the [c]ourt that he had thoroughly explained to
[defendant] her right to testify, and that he was
confident that her decision not to was made
"intelligently, voluntarily, and of her own free will." In
fact, the record reflects that trial counsel reported
"spend[ing] an exhausted [(sic)] amount of time"
discussing with [defendant] "all of her choices, her
options, and the possible benefits, or detriments she
might derive as a result of her testifying."

[(Third alteration in original.)]

Defendant does not challenge the judge's description of the record. She

contends that she would have testified at an evidentiary hearing "why she [did

not] testify at trial and . . . what she would have testified to[.]" "Defendant may

not create a genuine issue of fact, warranting an evidentiary hearing, by

contradicting [her] prior statements without explanation." Blake, 444 N.J.

Super. at 299. Defendant's bald averments, belied by the record, do not establish

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a prima facie claim, and an evidentiary hearing is not to be used to explore PCR

claims. See State v. Marshall, 148 N.J. 89, 157-58 (1997). As such, we agree

with Judge Toto that defendant did not establish a claim of ineffective assistance

of counsel on that issue.

The balance of defendant's claims concerning what she terms "trial

counsel's cumulative errors" is meritless. Her claim of prejudice because "not

all of her medical records were admitted for use in cross-examination of the

[S]tate's expert witness and for use during jury deliberations" (1) should have

been raised on direct appeal and is thus barred, R. 3:22-4(a); (2) does not specify

what those records were, how she would have introduced them into evidence

and how they would have made a difference in the case to satisfy the second

prong of Strickland-Fritz; and (3) does not establish trial counsel's

ineffectiveness in that any records relating to an intervening cause are irrelevant

as it was not an issue in the case.

Defendant does not inform how the list of commercial sellers of thallium,

which she claims her counsel failed to introduce to show its ready availability,

would have been authenticated or otherwise offered into evidence at trial.

Moreover, the failure to introduce that list had little impact on the outcome of

the trial, see Fritz, 105 N.J. at 58, considering the evidence established defendant

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ordered four bottles of thallium and had direct access to it through her

employment at Bristol-Myers Squibb; Bristol-Myers Squibb records of chemical

reactions performed by defendant showed no entry that defendant used any of

the ordered thallium at work; and five articles about thallium were found in

defendant's laptop case.

Defendant claims "counsel should have produced a toxicology expert to

testify as to the purpose of EDTA, which was found in her possession[,]" to

counter the State's assertion it was used to mask thallium and to establish it could

be used "to remove heavy metals from the body so that defendant had been trying

to help . . . Wang." But defendant has not proffered what the expert would have

opined. A "defendant must allege specific facts and evidence supporting [her]

allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make

bald assertions that [she] was denied the effective assistance of counsel," State

v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). It is incumbent upon

defendant to assert what any witness's testimony "would have revealed,

supported by affidavits or certifications based upon the personal knowledge of

the affiant or the person making the certification." Ibid. "[B]ald assertions" of

deficient performance are insufficient to support a PCR application. Ibid.; see

also Porter, 216 N.J. at 355-57 (reaffirming these principles in evaluating which

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of a defendant's various PCR claims warranted an evidentiary hearing). In other

words, a defendant must identify what any expert or witness would have

revealed and demonstrate the way the evidence probably would have changed

the result. Fritz, 105 N.J. at 64-65.

Defendant's argument that counsel's failure to call her aunt to testify was

ineffective fails for the same reason.

Finally, as we did on direct appeal, Li, slip op. at 29-30, we determine

defendant's arguments regarding the admission of the untranslated "symptom"

writings relating to Wang's condition—which defendant has not translated and

provided in the PCR record—to be without sufficient merit to warrant

discussion, R. 2:11-3(e)(2).

Defendant has failed to establish her trial counsel rendered ineffective

assistance.

Affirmed.

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