NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2442-22 A-3419-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL ATKINSON, a/k/a MICHEAL ATKINSON,
Defendant-Appellant. ___________________________
SHAQUILLE JOHN, a/k/a JOHN SHAQUILLE,
Submitted March 6, 2025 – Decided March 21, 2025
Before Judges Mawla and Natali. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 15-03-0210.
Jennifer N. Sellitti, Public Defender, attorney for appellant in A-2442-22 (David A. Gies, Designated Counsel, on the briefs).
Jennifer N. Sellitti, Public Defender, attorney for appellant in A-3419-22 (Steven E. Braun, Designated Counsel, on the brief).
William A. Daniel, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the briefs).
PER CURIAM
In these appeals that we scheduled back-to-back and consolidated for the
purpose of issuing a single opinion, defendants Michael Atkinson and Shaquille
John challenge orders denying their separate post-conviction relief (PCR)
petitions without evidentiary hearings. Unpersuaded by their contentions, we
affirm.
I.
We restate the facts relevant to this appeal from our prior opinion where
we affirmed Judge Regina Caulfield's order denying John's, Atkinson's, and co -
defendant and Bond Street shooting victim Jahid Watson's (Watson) application
to suppress evidence seized during a police search of a motel room. See State
A-2442-22 2 v. John, Nos. A-4139-22, A-5085-17, A-5677-17 (App. Div. Dec. 15, 2020) (slip
op. at 2). Those facts are as follows.
At approximately 9:00 p.m. on December 5, 2014, Detective Alfonso
Colon of the Elizabeth Police Department received a telephone call from an
anonymous individual, who reported hearing multiple shots fired in a home on
Bond Street in Elizabeth. The caller reported seeing two or three individuals
carrying another person out of the house. The caller also saw a man and a
woman taking duffel bags or suitcases from the house and placing them in a
shed. Detective Colon passed this information along to dispatch, who informed
him that Sergeant Julian Hilongos was investigating the report and that a
shooting victim had been brought to the hospital.
About ten or fifteen minutes later, the individual called Detective Colon a
second time. She told the detective a cab had come to the house on Bond Street,
and a man and woman carrying large bags got into the cab and left the premises. 1
The anonymous caller specifically identified this cab as Latino Taxi number 57.
Detective Colon forwarded this information to Sergeant Hilongos.
1 Detective Colon refers to the anonymous caller as "she." We do the same for consistency. A-2442-22 3 At the hospital, two police officers attempted to interview the shooting
victim, but he was uncooperative. However, the victim's mother and his former
girlfriend both identified the victim as Watson. The girlfriend reported that
Watson called her after he was shot, and she picked him up near the home on
Bond Street to drive him to the hospital.
After two officers unsuccessfully attempted to locate on Bond Street
where the shooting occurred, they learned from the caller's report a taxi had been
at a home on that street. The taxi company confirmed that one of its drivers had
picked up a man and a woman at a specific home on Bond Street and had taken
them to a motel on Routes 1 and 9, and then to the Spring Lane Motel.
Because he was concerned the bags the couple were carrying might
contain additional victims or weapons, Sergeant Hilongos called for additional
units to check for victims or suspects at the Bond Street home and at the Spring
Lane Motel. At the Bond Street home, officers found a large amount of blood
on the bottom panel of the screen door. The police knocked, announced their
presence, and entered the home. They did not locate any victims or other
individuals in the home but found blood on the kitchen floor and on the last step
before the second-floor landing. The officers then secured the home so they
could obtain a search warrant.
A-2442-22 4 Meanwhile, other officers arrived at the motel, went to the front office,
and spoke with the night manager, who allowed them to watch surveillance
footage. From the video, the officers learned that a man and a woman matching
the description given by the caller had arrived at the motel in a taxi around 10:40
p.m. They carried bags they took from the cab into the motel room.
Believing that these individuals had been present at the scene of the
shooting and might be carrying weapons, Sergeant Hilongos instructed officers
to report to the motel. Once at the motel, the officers knocked on the door and
announced their presence. After a few minutes, a woman opened the door. The
police arrested the woman, later identified as co-defendant Nicole Robbins, and
the man she was with, who was later determined to be another co-defendant,
Myles Sneed. The officers conducted a protective sweep of the room, and in the
bathroom, they found a rifle. They secured the room in anticipation of applying
for a search warrant.
Sneed later cooperated with the officers and consented to a search of the
motel room he had rented, and of the house on Bond Street, where he had been
staying for some time. After he signed the written consent form, the police
searched the motel room and found an extended ammunition magazine,
marijuana, the key and receipt for the room, and approximately $900 in cash.
A-2442-22 5 The State was ultimately able to connect the rifle found in the motel
bathroom to an armed robbery of a bodega that occurred on October 19, 2014.
During the robbery, three individuals had entered the store, and two of the
robbers began shooting their weapons. As a result, the robbers killed one victim
and wounded another. Shell casings found at the scene matched the rifle's shell
casings.
On March 13, 2015, a Union County grand jury returned a ten-count
indictment charging defendants with robbery, conspiracy, murder, felony
murder, attempted murder, and related firearms offenses. Thereafter, John and
Robbins filed a motion to suppress the rifle seized from the motel room.
Atkinson and other co-defendants joined in the motion.
Judge Caulfield denied the motion finding the police properly entered the
Bond Street home without a warrant under the emergency aid exception because
they had a reasonable basis to believe an injured person may have been in the
home given the blood found on the door and the report of gunfire in or near the
home. The judge also held the police properly entered the motel room without
a warrant based on the exigent circumstance that the room's occupants were
armed and properly discovered the rifle during a protective sweep.
A-2442-22 6 Following the denial of their motion to suppress, both Atkinson and John
pled guilty to first-degree aggravated manslaughter and admitted during their
plea colloquies to discharging a firearm in the Elizabeth bodega while intending
to rob the establishment. Each repeatedly answered in the affirmative to the
judge's questions concerning their satisfaction with their respective counsels'
representation and advice, and indicated they were entirely satisfied with their
performance. The judge thereafter sentenced John to a twenty two-year
custodial sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
72, imposed applicable fines, and awarded jail credits from the date of his arrest
amounting to 1193 days. The judge sentenced Atkinson to an eighteen-year
custodial NERA sentence, imposed fines, and awarded all of his gap time credits
as jail time credits, totaling 1232 days.
As noted, defendants appealed the order denying their application to
suppress evidence seized from the motel room. John, slip op. at 3. We affirmed
the judge's order on December 15, 2020. Ibid. The Supreme Court denied both
John's and Atkinson's petitions for certification. See State v. John, 247 N.J. 142
(2021).
John filed a timely pro se PCR petition claiming his plea counsel's
representation was constitutionally deficient because counsel "fail[ed] to
A-2442-22 7 challenge the existence of the alleged anonymous caller" and failed to "move
for the disclosure of the caller to verify [her] existence." He also filed a
counseled brief in which he asserted plea counsel was ineffective in failing to
"obtain the full discovery, including the identity and existence of an anonymous
caller," and argued the caller's testimony could lead to his exoneration. John
maintained the anonymous caller, if she had been identified, could have testified
as to the identity of the suspects leading to his possible exoneration or a more
favorable plea. He also argued under the cumulative error doctrine, counsel's
failure to learn the identity of the anonymous caller coupled with "other
[unspecified] errors recited in prior submitted briefs and supplemental briefs,
prejudiced [John's] right to a fair . . . trial."
Atkinson filed a similar timely pro se petition in which he too claimed his
plea counsel provided ineffective assistance "due to his failure to challenge the
existence of the alleged anonymous caller, . . . move for disclosure of the caller
to verify the caller's existence," and "verify . . . the credibility of the anonymous
caller." Additionally, Atkinson attested his counsel ignored his repeated
requests to "uncover the identity of the anonymous caller" and "obtain any
record[s] that would confirm" the existence of the anonymous caller.
A-2442-22 8 Judge Caulfield denied both Atkinson's and John's petitions in separate,
well-reasoned written decisions finding neither defendant satisfied the two -part
test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). 2 In each
opinion, the judge found defendants failed to establish Strickland's performance
prong because there was insufficient evidence presented that the police knew
the caller's identity or to support their argument the call was fabricated by the
police. The judge also noted the officers' subsequent investigations
corroborated the information provided by the caller and therefore disclosing the
caller's identity was unnecessary to ensure a fair determination of the issues
raised.
Further, the judge explained even if the police knew the caller's identity,
any motion to compel her identity would have been unsuccessful in light of
N.J.R.E. 516. She also found John's claim the caller's identity would have led
to his exoneration, and Atkinson's claim the call was fabricated solely to justify
the search of the motel room, were both baseless and bald assertions.
2 To establish ineffective assistance of counsel, a convicted defendant must satisfy the two-part test enunciated in Strickland, 466 U.S. at 687, by demonstrating that: 1) counsel's performance was deficient, and 2) the deficient performance actually prejudiced the accused's defense. The Strickland test has been adopted for application under our State constitution. See State v. Fritz, 105 N.J. 42, 58 (1987). A-2442-22 9 With respect to Strickland's prejudice prong, the judge found the record
devoid of evidence suggesting the caller's identity would have altered the
outcome of the motion to suppress or defendant's plea negotiations. She also
noted both John's and Atkinson's counsel secured favorable plea offers given the
severity of the charges and possibility of significantly longer custodial sentences
if convicted in each case. As neither defendant established a prima facie case
of ineffective assistance of counsel, the judge denied their request for an
evidentiary hearing.
In A-3419-22, John presents the following argument for our
consideration:
THE IDENTITY OF THE ALLEGED ANONYMOUS CALLER SHOULD HAVE BEEN REVEALED TO THE DEFENSE AND TRIAL DEFENSE COUNSEL WAS INEFFECTIVE BY FAILING TO RAISE A MOTION SEEKING THE CALLER'S IDENTITY.
In A-2442-22, Atkinson presents the following arguments:
POINT I
DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVENESS WHERE HIS GUILTY PLEA TO THE BODEGA CRIME AND THE STRENGTH OF HIS REASONS FOR SEEKING TO WITHDRAW IT WERE DEPENDENT ON THE NATURE OF THE RELATIONSHIP BETWEEN AN UNIDENTIFIED INFORMANT AND A LAW ENFORCEMENT OFFICER.
A-2442-22 10 A. The motion judge erred in determining that defendant presented "no evidence" the police knew the identity of the unnamed informant.
B. Defendant's motion to suppress was reasonably likely to succeed on its merits if the nature of the relationship between the unidentified informant and the law enforcement officer had been properly presented.
C. Although defendant ple[d] guilty, he would have insisted on going to trial if the motion to suppress was successful.
POINT II
THE RELIABILITY OF THE UNIDENTIFIED INFORMANT'S REPORT WITHOUT CONSIDERING THE NATURE OF THE RELATIONSHIP BETWEEN HER AND THE LAW ENFORCEMENT OFFICER REQUIRES AN EVIDENTIARY FOUNDATION.
POINT III
THE INFORMANT'S IDENTITY SHOULD HAVE BEEN DISCLOSED TO THE DEFENDANT BECAUSE SHE WAS AN ESSENTIAL WITNESS ON A BASIC ISSUE IN THE CASE.
John further expounds on his single point by contending the "identity of
the alleged anonymous caller was integral to his defense." He claims questions
remain regarding: 1) "how [the caller] knew there had been gunshots" as
opposed to similar non-criminal disturbances such as construction or a car
A-2442-22 11 backfire; 2) the lack of an "explicit identification" of the individuals seen in the
vicinity of the Bond Street home; 3) the "caller's eyesight, the distance between
the caller's location and the Bond Street address"; and 4) "any physical
obstructions blocking the caller's view." John argues these issues were left
unaddressed because of the caller's anonymity and answers to those questions
may have generated reasonable doubt as to his guilt. He also claims the police
could have easily determined, if they did not already know, the caller's identity
through a caller identification mechanism on their phones.
Next, he maintains the caller did not witness any illegal activity and, in
fact, witnessed events suggesting a non-criminal or accidental shooting given
the observation of the probable shooters assisting the injured victim into a
vehicle. Since, according to John, the caller did not witness a crime, the judge
erred in finding N.J.R.E. 516 would have shielded the caller's identity and
potential testimony.
In Atkinson's first point, he asserts, the "nature of the relationship between
the unnamed source and Detective Colon is significant because an unidentified
caller's 'veracity' and 'basis of knowledge' are 'relevant in determining the value
of [their] report.'" Contrary to the judge's decision, the record reveals Detective
Colon had a relationship with the anonymous caller because, according to his
A-2442-22 12 testimony at the suppression hearing, she called Detective Colon's cell phone.
He avers the "failure of [his] trial attorney to investigate the nature of the
relationship was unreasonable" because without information probative of the
caller's reliability, the anonymous information she conveyed was insufficient to
establish probable cause to support a warrantless search of the motel room. On
this point, he explains information that "two unknown persons traveled from a
residence where blood was observed to the Spring Lane Motel and checked in
without alarming either the motel manager or other guests" was insufficient to
justify a warrantless search when the information was based on an anonymous
caller's report.
In sum, defendants argue without information received from the
anonymous caller, the police would not have had sufficient information to
investigate the chain of events ultimately resulting in the rifle's discovery in the
motel room. And, if their counsel would have moved to compel the caller's
identity, defendants would have attempted to discredit her purported percipient
observations.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
A-2442-22 13 181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed
questions of fact and law. Id. at 420. Where an evidentiary hearing has not been
held, like here, we "conduct a de novo review of both the factual findings and
legal conclusions of the PCR court." Id. at 421.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a
criminal proceeding has the right to the assistance of counsel in his or her
defense. The right to counsel includes "the right to the effective assistance of
counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland, 466 U.S.
at 686).
Under the first prong of the Strickland standard, a petitioner must show
that counsel's performance was deficient. It must be demonstrated that counsel's
handling of the matter "fell below an objective standard of reasonableness" and
that "counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466
U.S. at 687-88.
Under the second prong, a defendant "must show that the deficient
performance prejudiced the defense." Id. at 687. There must be a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
A-2442-22 14 proceeding would have been different." Id. at 694. A petitioner must
demonstrate that "counsel's errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable." Id. at 687. "The error committed
must be so serious as to undermine the court's confidence in the jury's verdict or
result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, 466
U.S. at 694).
"With respect to both prongs of the Strickland test, a defendant asserting
ineffective assistance of counsel on PCR bears the burden of proving [their]
right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J.
339, 350 (2012) (citing State v. Echols, 199 N.J. 344, 357 (2009); State v.
Goodwin, 173 N.J. 583, 593 (2002)). A failure to satisfy either prong of the
Strickland standard requires the denial of a petition for PCR. Strickland, 466
U.S. at 700; Nash, 212 N.J. at 542; Fritz, 105 N.J. at 52.
In a matter involving a guilty plea, to show prejudice, a defendant must
establish "a reasonable probability that, but for counsel's errors, [the defendant]
would not have pled guilty and would have insisted on going to trial." State v.
Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State
v. DiFrisco, 137 N.J. 434, 457 (1994)). A defendant must show that, "had [they]
been properly advised, it would have been rational for [them] to decline the plea
A-2442-22 15 offer and insist on going to trial and, in fact, that [they] probably would have
done so." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011).
We reject defendants' arguments and affirm the May 31, 2023 order in A -
3419-22, and the January 25, 2023 order in A-2442-22 for the reasons expressed
in Judge Caulfield's cogent and well-reasoned written decisions. We add the
following comments to amplify our decisions.
The judge correctly found both John and Atkinson failed to satisfy the
Strickland performance prong. First, even if we indulge defendants' claim the
police had prior involvement with the caller based on the fact the call was
received on the officer's cell phone, neither defendant presented facts sufficient
to overcome the privilege provided in N.J.R.E. 516.
The informer's privilege against disclosure of their identity is well -
established and "considered essential to effective enforcement of the criminal
code." State v. Milligan, 71 N.J. 373, 381 (1976) (citing State v. Infante, 116
N.J. Super. 252, 257 (App. Div. 1971)). "Without a strong showing of need,
courts will generally deny a request for disclosure." State v. McDuffie, 450 N.J.
Super. 554, 568 (App. Div. 2017) (quoting State v. Florez, 134 N.J. 570, 578
(1994)). N.J.R.E. 516 "provides that a witness need not provide the identity of
an informant unless the identity of that person has already been otherwise
A-2442-22 16 disclosed or 'disclosure of his identity is essential to assure a fair determination
of the issues.'" Florez, 134 N.J. at 578.
The purpose of the privilege is twofold: "to protect the safety of the
informant and to encourage the process of informing." State v. Sessoms, 413
N.J. Super. 338, 343 (App. Div. 2010) (citing Roviaro v. United States, 353 U.S.
53, 60 (1957)). The privilege "protect[s] the public interest in a continuous flow
of information to law enforcement officials." Ibid. (quoting Grodjesk v.
Faghani, 104 N.J. 89, 97 (1986)).
Both John and Atkinson failed to provide or support their petitions with
facts sufficient to establish a "strong showing of need" for the caller's identity
necessary to overcome the privilege. See McDuffie, 450 N.J. Super. at 568
(quoting Florez, 134 N.J. at 578). Thus, the failure of defendants' counsel to file
a motion to compel the State to disclose the identity of the caller does not qualify
as constitutionally deficient performance because any such motion would not
have been successful. State v. O'Neal, 190 N.J. 601, 619 (2007) (holding it is
"not ineffective assistance of counsel for defense counsel not to file a meritless
motion").
Second, the judge properly concluded both defendants failed to establish
how learning the identity of the caller was essential to their defense and
A-2442-22 17 necessary to ensure a fair determination of the issues. At the outset, we reject
any argument that the police fabricated the existence of the call. There is simply
no proof in the record for such an allegation. State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999).
Defendants' arguments are reduced to unfounded and speculative
contentions regarding deficiencies in the caller's eyesight, her purported
inability to distinguish a gunshot from other sounds, and whether her
observations were suggestive of innocent or criminal activity. We are
unpersuaded by these arguments because they fail to acknowledge that the police
independently corroborated each critical fact conveyed by the caller. Indeed,
they observed blood at the Bond Street residence, confirmed the existence of a
shooting victim, and confirmed a taxi transported individuals to the hotel where
the firearm connected to the bodega shooting was recovered.
The judge correctly found that neither defendant presented evidence
sufficient to establish Strickland's prejudice prong. Again, all of the critical
facts that led the police to the motel were independently corroborated. The judge
properly concluded it would not have been rational for defendants to have
rejected the State's plea offer. Maldon, 422 N.J. Super. at 486. Atkinson and
John faced the possibility of significantly longer custodial sentences if convicted
A-2442-22 18 at trial and, instead, accepted plea offers for considerably shorter sentences. The
pleas also afforded each defendant significant jail credits. Thus, given the
severity of the sentences defendants faced at trial, and the evidence against them,
it would have been irrational for them to reject their respective pleas. Ibid.
Finally, because defendants did not establish a prima facie case of
ineffective assistance of counsel, we also conclude the judge did not abuse her
discretion in denying defendants' requests for evidentiary hearings. See State v.
Preciose, 129 N.J. 451 (1992). To the extent we have not addressed specifically
any of defendant's remaining arguments, it is because we have concluded that
they are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
Affirmed in A-3419-22 and A-2442-22.
A-2442-22 19