NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4311-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AHMAD J. JOHNSON,
Defendant-Appellant. ____________________________
Argued January 29, 2020 – Decided February 10, 2020
Before Judges Haas and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-10-1770.
John Vincent Molitor argued the cause for appellant.
Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the brief).
PER CURIAM This post-conviction relief (PCR) case returns to us after remand
proceedings directed by our previous opinion. See State v. Johnson ("Johnson
II"), No. A-0032-16 (App. Div. Jan. 16, 2018). 1 As noted in that decision, we
ordered the trial court to conduct "an evidentiary hearing on all of the assertions
raised by defendant in his PCR petition" in order "to ferret out the facts and
possible strategies underlying the actions of defendant's trial and appellate
attorneys in connection with defendant's claims of ineffective assistance." Id.
at 6.
On remand, the matter was assigned to Judge Mark J. Nelson, who held
the hearing to address the issues identified in our decision in Johnson II.
Defendant's trial and appellate attorneys testified at the hearing, as did defendant
and three other witnesses. At the conclusion of the hearing, Judge Nelson denied
defendant's petition for PCR, and fully explained the basis for his rulings in a
comprehensive twenty-seven page written opinion containing his detailed
findings of fact and conclusions of law.
Defendant appeals from the May 6, 2019 order memorializing the judge's
decision. We affirm.
1 We also incorporate herein the procedural history and facts set forth in our opinion on defendant's direct appeal. State v. Johnson, ("Johnson I"), No. A- 6238-09 (App. Div. March 27, 2013), certif. denied, 216 N.J. 13 (2013). A-4311-18T3 2 Defendant raised seven arguments on remand in support of his petition for
PCR. The parties are fully familiar with Judge Nelson's thorough analysis of
each of those issues and, therefore, we need only provide the highlights here.
First, defendant asserted that his trial attorney was ineffective because he
failed to ensure that the trial judge abided by directives promulgated b y the
Administrative Office of the Courts for the conduct of jury selection, and his
appellate attorney failed to raise this as an issue on direct appeal. However,
Judge Nelson found that although not all of the procedures set forth in these
directives were applied by the trial judge, 2 there was no evidence that a biased
jury resulted from these inconsistencies. Thus, Judge Nelson concluded that
defendant failed to satisfy the second prong of the two-prong test of Strickland
v. Washington, 466 U.S. 668, 687 (1984), which requires a showing that defense
counsel's performance was deficient and that, but for the deficient performance,
the result would have been different.
Defendant next argued that his attorneys were ineffective because they did
not assert that the jury was "tainted" by the inclusion of a juror who told the trial
judge he was familiar with one of the witnesses for the State. However, when
2 For example, the judge read the list of potential witnesses to the jurors, but did not give them a written list of these individuals, and asked the jurors to "tell us something about yourself," instead of reading them the biographical question. A-4311-18T3 3 the judge questioned this juror, he admitted he did not know the State's witness
by name and stated he could be fair and impartial and follow the court's
instructions. Under these circumstances, Judge Nelson concluded that
defendant failed to meet either of the Strickland prongs.
In his third argument, defendant asserted that his attorneys provided poor
representation because his trial counsel did not object when a detective testified
he received information indicating that the car defendant hijacked from the
victim he later murdered might have been used in a shooting, and his appellate
attorney did not raise a Confrontation Clause claim on appeal based on the
admission of this evidence. However, because other witnesses provided this
same information to the jury based on their first-hand accounts, and defendant
had the full opportunity to cross-examine these witnesses, Judge Nelson found
there was no viable Confrontation Clause issue that could have been raised at
trial or on appeal.
Fourth, defendant argues that his attorneys were ineffective because they
failed to argue that a cross-racial identification charge should have been given
to the jury. However, we held in Johnson I that the trial judge's instructions to
the jury were proper under the pre-Henderson3 out-of-court identification rules.
3 State v. Henderson, 208 N.J. 208 (2011). A-4311-18T3 4 (slip op. at 28-29). Therefore, defendant's present claim was barred by Rule
3:22-5, which prevents a defendant from raising an argument on a petition for
PCR where there has been "[a] prior adjudication on the merits[.]"
In any event, the eyewitness's cross-racial identification of defendant in
this case was corroborated by other evidence presented at the trial, including
defendant's own admissions to another witness concerning his involvement in
the shooting. See State v. Cromedy, 158 N.J. 112, 198-99 (1999) (holding, prior
to Henderson, that cross-racial identification charges should be given only when
the identification is not corroborated by other evidence giving it independent
reliability). Thus, Judge Nelson found that a cross-identification instruction was
not necessary and, accordingly, defendant's attorneys were not ineffective for
failing to raise this issue.
Defendant next argued his trial attorney was "disloyal" to him because he
was overheard talking to two assistant prosecutors about a rumor that defendant
allegedly threatened to harm him and, based on this conversation, the attorney
might not have worked diligently on his behalf. After hearing the testimony of
the attorney and defendant, Judge Nelson found that defense counsel "brushed
off" the rumor as soon as he heard it, saying "it was just some s[c]uttlebutt from
the jail that people say and it had no bearing on him or the trial." The judge
A-4311-18T3 5 found that the attorney's statement that the incident had no impact on his
relationship with defendant was credible and, therefore, the judge rejected
defendant's claim on this point.
In his sixth argument on remand, defendant asserted that his attorney
should have called three witnesses who stated they saw a man running away
after the murder. Prior to the hearing, defendant alleged that if the witnesses
had been called to testify, they would have aided him in his claim of third-party
guilt.
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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-4311-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AHMAD J. JOHNSON,
Defendant-Appellant. ____________________________
Argued January 29, 2020 – Decided February 10, 2020
Before Judges Haas and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-10-1770.
John Vincent Molitor argued the cause for appellant.
Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the brief).
PER CURIAM This post-conviction relief (PCR) case returns to us after remand
proceedings directed by our previous opinion. See State v. Johnson ("Johnson
II"), No. A-0032-16 (App. Div. Jan. 16, 2018). 1 As noted in that decision, we
ordered the trial court to conduct "an evidentiary hearing on all of the assertions
raised by defendant in his PCR petition" in order "to ferret out the facts and
possible strategies underlying the actions of defendant's trial and appellate
attorneys in connection with defendant's claims of ineffective assistance." Id.
at 6.
On remand, the matter was assigned to Judge Mark J. Nelson, who held
the hearing to address the issues identified in our decision in Johnson II.
Defendant's trial and appellate attorneys testified at the hearing, as did defendant
and three other witnesses. At the conclusion of the hearing, Judge Nelson denied
defendant's petition for PCR, and fully explained the basis for his rulings in a
comprehensive twenty-seven page written opinion containing his detailed
findings of fact and conclusions of law.
Defendant appeals from the May 6, 2019 order memorializing the judge's
decision. We affirm.
1 We also incorporate herein the procedural history and facts set forth in our opinion on defendant's direct appeal. State v. Johnson, ("Johnson I"), No. A- 6238-09 (App. Div. March 27, 2013), certif. denied, 216 N.J. 13 (2013). A-4311-18T3 2 Defendant raised seven arguments on remand in support of his petition for
PCR. The parties are fully familiar with Judge Nelson's thorough analysis of
each of those issues and, therefore, we need only provide the highlights here.
First, defendant asserted that his trial attorney was ineffective because he
failed to ensure that the trial judge abided by directives promulgated b y the
Administrative Office of the Courts for the conduct of jury selection, and his
appellate attorney failed to raise this as an issue on direct appeal. However,
Judge Nelson found that although not all of the procedures set forth in these
directives were applied by the trial judge, 2 there was no evidence that a biased
jury resulted from these inconsistencies. Thus, Judge Nelson concluded that
defendant failed to satisfy the second prong of the two-prong test of Strickland
v. Washington, 466 U.S. 668, 687 (1984), which requires a showing that defense
counsel's performance was deficient and that, but for the deficient performance,
the result would have been different.
Defendant next argued that his attorneys were ineffective because they did
not assert that the jury was "tainted" by the inclusion of a juror who told the trial
judge he was familiar with one of the witnesses for the State. However, when
2 For example, the judge read the list of potential witnesses to the jurors, but did not give them a written list of these individuals, and asked the jurors to "tell us something about yourself," instead of reading them the biographical question. A-4311-18T3 3 the judge questioned this juror, he admitted he did not know the State's witness
by name and stated he could be fair and impartial and follow the court's
instructions. Under these circumstances, Judge Nelson concluded that
defendant failed to meet either of the Strickland prongs.
In his third argument, defendant asserted that his attorneys provided poor
representation because his trial counsel did not object when a detective testified
he received information indicating that the car defendant hijacked from the
victim he later murdered might have been used in a shooting, and his appellate
attorney did not raise a Confrontation Clause claim on appeal based on the
admission of this evidence. However, because other witnesses provided this
same information to the jury based on their first-hand accounts, and defendant
had the full opportunity to cross-examine these witnesses, Judge Nelson found
there was no viable Confrontation Clause issue that could have been raised at
trial or on appeal.
Fourth, defendant argues that his attorneys were ineffective because they
failed to argue that a cross-racial identification charge should have been given
to the jury. However, we held in Johnson I that the trial judge's instructions to
the jury were proper under the pre-Henderson3 out-of-court identification rules.
3 State v. Henderson, 208 N.J. 208 (2011). A-4311-18T3 4 (slip op. at 28-29). Therefore, defendant's present claim was barred by Rule
3:22-5, which prevents a defendant from raising an argument on a petition for
PCR where there has been "[a] prior adjudication on the merits[.]"
In any event, the eyewitness's cross-racial identification of defendant in
this case was corroborated by other evidence presented at the trial, including
defendant's own admissions to another witness concerning his involvement in
the shooting. See State v. Cromedy, 158 N.J. 112, 198-99 (1999) (holding, prior
to Henderson, that cross-racial identification charges should be given only when
the identification is not corroborated by other evidence giving it independent
reliability). Thus, Judge Nelson found that a cross-identification instruction was
not necessary and, accordingly, defendant's attorneys were not ineffective for
failing to raise this issue.
Defendant next argued his trial attorney was "disloyal" to him because he
was overheard talking to two assistant prosecutors about a rumor that defendant
allegedly threatened to harm him and, based on this conversation, the attorney
might not have worked diligently on his behalf. After hearing the testimony of
the attorney and defendant, Judge Nelson found that defense counsel "brushed
off" the rumor as soon as he heard it, saying "it was just some s[c]uttlebutt from
the jail that people say and it had no bearing on him or the trial." The judge
A-4311-18T3 5 found that the attorney's statement that the incident had no impact on his
relationship with defendant was credible and, therefore, the judge rejected
defendant's claim on this point.
In his sixth argument on remand, defendant asserted that his attorney
should have called three witnesses who stated they saw a man running away
after the murder. Prior to the hearing, defendant alleged that if the witnesses
had been called to testify, they would have aided him in his claim of third-party
guilt. Judge Nelson heard the testimony of each of these witnesses and
concurred with defense counsel's credible assertion that the witnesses had
limited knowledge of the events they allegedly perceived, contradicted
themselves during their testimony, and were unable to adequately describe what
they saw due to how dark it was on the street that night. Under these
circumstances, the judge concluded that defendant's attorney made a proper
tactical decision to refrain from calling these witnesses, whose hazy accounts
would have been further damaged on cross-examination. Therefore, Judge
Nelson found that defendant did not meet either prong of the Strickland test.
Finally, defendant argued that his trial attorney failed to keep him apprised
of what transpired during sidebar conferences after his listening device failed.
However, Judge Nelson found that defense counsel's testimony that he "used the
A-4311-18T3 6 lawyer-shuttle system to speak with his client" was credible. Therefore, the
judge rejected defendant's claim that he received ineffective assistance on this
score.
On appeal, defendant raises the same seven arguments he unsuccessfully
pressed before Judge Nelson. Thus, defendant asserts:
POINT I
THIS COURT SHOULD REVERSE THE PCR JUDGE'S DECISION TO FIND DEFENDANT'S TRIAL AND APPELLATE ATTORNEYS' FAILURES TO CHALLENGE THE NUMEROUS INTENTIONAL VIOLATIONS OF THE LAW GOVERNING JURY SELECTION DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THIS COURT SHOULD REVERSE THE PCR JUDGE'S DECISION TO FIND THERE WAS NO BASIS FOR DEFENDANT'S TRIAL AND APPELLATE COUNSEL TO CHALLENGE POTENTIAL JURY TAINT BECAUSE THE TRIAL COURT ADMITTED A JUROR'S FAMILIARITY WITH ONE OF THE STATE'S WITNESSES RAISED THE SPECTER OF JURY TAINT AND THE TRIAL COURT DID NOT COMPLY WITH THE SUPREME COURT'S AND APPELLATE DIVISION'S DECISIONS MANDATING HOW A JUDGE MUST ADDRESS POTENTIAL JURY TAINT.
POINT III
A-4311-18T3 7 THIS COURT SHOULD REVERSE THE PCR JUDGE'S DECISION TO FIND DEFENDANT'S TRIAL AND APPELLATE COUNSEL WERE NOT INEFFECTIVE WHEN THEY DID NOT RAISE THE INTENTIONAL VIOLATIONS OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
POINT IV
THIS COURT SHOULD REVERSE THE PCR JUDGE'S DECISION TO FIND THERE WAS NO BASIS TO REQUEST A CROSS-RACIAL IDENTIFICATION CHARGE BECAUSE THE PCR JUDGE DID NOT CONSIDER THE PIVOTAL CASE UPON WHICH DEFENDANT'S ARGUMENTS RESTS.
POINT V
THIS COURT SHOULD REVERSE THE PCR JUDGE'S DECISION TO DISREGARD AND IGNORE NEWLY DISCOVERED EVIDENCE OF DEFENDANT'S TRIAL COUNSEL'S DISLOYALTY.
POINT VI
THE PCR JUDGE'S DECISION TO DISCOUNT DEFENDANT'S WITNESSES' TESTIMONY WAS UNFAIR BECAUSE THE WITNESSES WERE UNBIASED AND HONEST AND THEIR TESTIMONY IMPLICATED A PRIME SUSPECT WHOM THE POLICE INTERVIEWED.
POINT VII
THIS COURT SHOULD REVERSE THE PCR JUDGE'S DECISION TO HOLD DEFENDANT WAS
A-4311-18T3 8 NOT EXCLUDED FROM SIDEBAR CONFERENCES BECAUSE THE RECORD DOES NOT SUPPORT THE DEFENDANT'S TRIAL COUNSEL'S TESTIMONY THAT HE USED THE LAWYER-SHUTTLE SYSTEM.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, 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).
To establish a prima facie claim of ineffective assistance of counsel, the
defendant is obligated to show not only the particular manner in which counsel's
performance was deficient, but also that the deficiency prejudiced his right to a
fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of this test, the defendant must demonstrate 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. Under the second prong, the defendant must show "that counsel's errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's
A-4311-18T3 9 unprofessional errors, the result of the proceeding would have been different."
Id. at 694.
There is a strong presumption that counsel "rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment." Id. at 690. Because prejudice is not presumed, Fritz, 105 N.J. at 52,
a defendant must demonstrate with "reasonable probability" that the result
would have been different had he received proper advice from his trial attorney.
Strickland, 466 U.S. at 694.
Moreover, the acts or omissions of counsel of which a defendant
complains must amount to more than mere tactical strategy. Id. at 689. As the
Supreme Court observed in Strickland,
[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).]
A-4311-18T3 10 Where, as here, the judge conducts an evidentiary hearing, we must
uphold the judge's factual findings, "so long as those findings are supported by
sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440
(2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we
defer to a trial judge's findings that are "substantially influenced by [the trial
judge's] opportunity to hear and see the witnesses and to have the 'feel' of the
case, which a reviewing court cannot enjoy." Ibid. (alteration in original)
(quoting Robinson, 200 N.J. at 15).
Having considered defendant's present contentions in light of the record
and these well-established principles, we discern no basis for disturbing Judge
Nelson's reasoned determination that defendant failed to satisfy the Strickland
test with regard to any of his seven contentions. Accordingly, we affirm the
judge's denial of defendant's PCR petition substantially for the reasons detailed
at length in his comprehensive written opinion.
Affirmed.
A-4311-18T3 11