State of New Jersey v. Daniel Johnson

• Court: New Jersey Superior Court Appellate Division
• Decided: February 18, 2025
• Docket: A-3088-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3088-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL JOHNSON, a/k/a LAMAR JOHNSON,

Defendant-Appellant. _______________________

Submitted October 16, 2024 – Decided February 18, 2025

Before Judges Gilson and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 14-11-1900.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Leandra L. Cilindrello, Assistant Prosecutor, on the brief).

PER CURIAM Defendant Daniel Johnson appeals from an April 20, 2023 order denying

his petition for post-conviction relief (PCR). We affirm.

I.

In November 2014, a Hudson County grand jury returned an indictment

that charged defendant with: first-degree felony murder, N.J.S.A. 2C:11-

3(a)(3); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; five

counts of first-degree armed robbery, N.J.S.A. 2C:15-1; five counts of second-

degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a);

second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5; first-degree

murder, N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2); and second-degree

certain person not to have a firearm, N.J.S.A. 2C:39-7(b).

The next month, in December 2014, a Passaic County grand jury returned

an indictment that charged defendant with: first-degree felony murder, N.J.S.A.

2C:11-3(a)(3); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2;

five counts of first-degree armed robbery, N.J.S.A. 2C:15-1; five counts of

second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-

4(a); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5; first-

degree murder, N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2); and second-

degree certain person not to have a firearm, N.J.S.A. 2C:39-7(b).

A-3088-22 2 The Hudson County case was transferred to Passaic County for trial. Prior

to trial, the court conducted a Wade1 hearing regarding the out-of-court

identifications made by G.W. and E.S. 2 The court ruled those identifications

were admissible.

On July 28, 2016, defendant was convicted by a jury of two Hudson

County charges: second-degree robbery of G.W. and second-degree conspiracy

to commit the robbery of G.W. Defendant was acquitted on all the Passaic

County charges.

Defendant was subsequently sentenced to sixteen years for the second-

degree robbery and a concurrent ten years for the second-degree conspiracy,

both subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. In February 2018,

the court amended the judgment of conviction to run defendant's sentence

consecutive to any parole violation.

In his direct appeal, defendant argued G.W.'s show-up identification was

impermissibly suggestive. We held the trial court properly considered the

factors articulated in State v. Henderson, 208 N.J. 208, 289 (2011) and weighed

the evidence. State v. Johnson, No. A-3626-16 (App. Div. May 14, 2019). We

1 United States v. Wade, 388 U.S. 218, 235 (1967). 2 We use initials to protect the victim's privacy. A-3088-22 3 ultimately affirmed the trial court's conclusion that defendant had not

demonstrated a substantial likelihood of irreparable misidentification.

The facts leading to defendant's convictions second-degree robbery and

second-degree conspiracy to commit the robbery are set forth in our opinion on

his direct appeal, and we need not repeat them here. We affirmed defendant's

conviction and sentence imposed on direct appeal. Ibid. at slip op. 1. The

Supreme Court denied defendant's petition for certification. State v. Johnson,

240 N.J. 128 (2019).

Defendant filed a self-represented PCR petition on November 4, 2021,

followed by two supplemental certifications. After oral argument on 20, 2023,

the PCR court rendered an oral opinion, denying defendant's PCR petition. After

considering the applicable law, the court concluded trial counsel's performance

was "anything but ineffective" because defendant was acquitted on eight out of

the ten Hudson County charges and all fourteen Passaic County charges. The

court's consideration went beyond the "ultimate results of the trial," and further

concluded trial counsel's performance was not deficient in any of the areas raised

by defendant nor prejudiced by any alleged deficient performance. Accordingly,

the court determined an evidentiary hearing was not warranted because

A-3088-22 4 defendant failed to present a prima facie case of ineffective assistance of

counsel. This appeal followed.

II.

On appeal, defendant articulates the following arguments for our

consideration:

POINT I: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

A. Trial Counsel Failed to Effectively Cross[-]Examine Victim [G.W.] Regarding His Identification of Defendant.

B. Trial Counsel Failed to Investigate an Exculpatory Witness.

When a PCR court does not conduct an evidentiary hearing, appellate

courts review the denial of a PCR petition de novo. State v. Harris, 181 N.J.

391, 420-21 (2004); State v. Lawrence, 463 N.J. Super. 518, 522 (App. Div.

2020). The PCR court's decision to proceed without an evidentiary hearing is

reviewed for an abuse of discretion. State v. Vanness, 474 N.J. Super. 609, 623

(App. Div. 2023) (citing State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.

2013)).

A-3088-22 5 To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-prong Strickland test: (1) "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment," and (2) "the deficient performance prejudiced the defense."

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,

58 (1987) (adopting the Strickland two-prong test in New Jersey). Under prong

one, a defendant must establish that "counsel's representation fell below an

objective standard of reasonableness." Strickland, 466 U.S. at 688. Under prong

two, a defendant must demonstrate "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694.

A defendant filing a PCR petition is not automatically entitled to an

evidentiary hearing. State v. Porter, 216 N.J. 343, 355 (2013); State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The PCR court should

grant an evidentiary hearing only when: "(1) the defendant establishes a prima

facie case in support of PCR; (2) the court determines that there are disputed

issues of material fact that cannot be resolved by review of the existing record;

and (3) the court determines that an evidentiary hearing is required to resolve

the claims asserted." Vanness, 474 N.J. at 623 (citing Porter, 216 N.J. at 354).

A-3088-22 6 Although we sustained the trial judge's findings, defendant revisited the

issue of G.W.'s show-up identification in his PCR petition restated as an

ineffective assistance of counsel claim. Defendant contends trial counsel was

ineffective for failing to comply with his request to put G.W. back on the stand

and "more vigorously" cross-examine him regarding the show-up identification.

Acknowledging defendant essentially renewed the argument concerning

G.W.'s show-up identification in his PCR petition that was raised on direct

appeal, the PCR judge noted that he was the same judge that conducted the

suppression hearing and ruled the identification was admissible, which was

affirmed on appeal. Nonetheless, the judge addressed defendant's PCR claim.

The PCR judge reviewed defendant's submissions and the trial record and

found "defendant offer[ed] no explanation, examples or legal supports as to . . .

his assertion that not engaging in further cross-examination amounts to

ineffective assistance of counsel." The court also noted trial counsel highlighted

inconsistencies on G.W.'s cross-examination, and started a "forceful"

summation by stating show-ups are "inherently suggestive." The court reasoned

defendant's argument was not supported by the record that "would suggest that

any additional cross-examination of [G.W.] would have resulted in [G.W.] being

exposed and it was unlikely that G.W. would have withdrawn his previous

A-3088-22 7 identification of the defendant as one of the actors who robbed him."

Accordingly, the court concluded trial counsel's performance was not deficient,

and defendant was not prejudiced.

Having conducted a de novo review of the record, we reject defendant's

contention. We first agree with the PCR judge that defendant's show-up

identification issue was raised and resolved on appeal. "[A] prior adjudication

on the merits ordinarily constitutes a procedural bar to the reassertion of the

same ground as a basis for post-conviction review." State v. Preciose, 129 N.J.

451, 476 1280 (1992) (citing R. 3:22-5). Thus, defendant cannot use the PCR

proceedings to re-litigate claims already decided on the merits in his direct

appeal. State v. McQuaid, 147 N.J. 464, 483 (1997).

We also discern no error in the PCR judge in denying defendant's petition.

Defendant failed to show that counsel's performance was deficient in the cross-

examination of G.W. The trial transcript shows otherwise. Nor has defendant

show prejudice supported by "specific facts and evidence supporting [his]

allegations." Porter, 216 N.J. 355. Defendant has failed to identify how a more

vigorous cross-examination would have likely led to a different result.

We next address defendant's argument that trial counsel failed to

investigate and interview an exculpatory witness—A.N., a Passaic County jail

A-3088-22 8 paralegal, who defendant claimed assisted co-defendant Zaire Palms in

preparing an affidavit that Palms committed the crime against G.W.

Here, the judge ruled any testimony from A.N. regarding the intention of

or statements from Palms made to exculpate defendant would be inadmissible

hearsay under N.J.R.E. 801(c). The court determined that no exception to the

hearsay rule would have allowed the admission of the statements. Thus, the

court determined the appropriate witness to testify was Palms, who appeared in

court, invoked his Fifth Amendment right, and refused to testify. Consequently,

trial counsel was barred from calling him as a witness under State v. Nunez, 209

N.J. Super. 127 (App. Div. 1986). The State was also barred from introducing

the affidavit in its case-in-chief to show consciousness of guilt. The PCR judge

did not find trial counsel was "ineffective or his actions prejudiced the

defendant" because trial counsel was unable to cross-examine Palms or present

evidence.

Under Rule 3:22-4, "a defendant is barred from raising any issue in a PCR

petition that could have been raised on direct appeal unless one of three

enumerated exceptions apply." State v. Wildgoose, 479 N.J. Super. 331, 344

(App. Div. 2024) (citing State v. Nash, 212 N.J. 518, 546 (2013)). Those

exceptions do not apply here because defendant could have challenged the trial

A-3088-22 9 court's evidentiary ruling excluding A.N.'s testimony on direct appeal.

Therefore, a defendant is precluded from raising an issue on PCR that could

have been raised on direct appeal. State v. McQuaid, 147 N.J. 464, 483 (1997).

On direct appeal, defendant did not argue the trial judge erred in excluding

A.N.'s testimony. Since defendant "may not use post-conviction relief to assert

a new claim that could have been raised on direct appeal," defendant's

exculpatory witness argument is barred pursuant to Rule 3:22-4.

We are also convinced defendant has not established a prima facie case

for ineffective assistance of counsel by failing to call A.N. as a witness.

Defendant has not established how A.N.'s testimony is an exception to the

hearsay rule, and therefore admissible. Considering Palm's invocation of the

Fifth Amendment and refusal to testify, defendant has failed to establish A.N.'s

testimony would have changed the result of the trial as required under the

Strickland/Fritz test. See Strickland, 466 U.S. at 668.

In sum, defendant has failed to meet his burden by a preponderance of the

evidence. We discern no error in the court's denial of defendant's claims without

an evidentiary hearing, based on our conclusion that the record does not

substantiate a prima facie claim for PCR.

Affirmed.

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