STATE OF NEW JERSEY v. LINCOLN JOHNSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6997-03T56997-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LINCOLN JOHNSON,

Defendant-Appellant.

 

Submitted January 18, 2006 - Decided March 7, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-08-1029.

Henry F. Furst, attorney for appellant.

Nancy Kaplen, Acting Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Lincoln Johnson was found guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7. Defendant thereafter entered a guilty plea to third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b. He was sentenced to an aggregate prison term of twenty-eight years, the specific details of which are not germane to this appeal.

Defendant raises the following arguments for our consideration on appeal:

I. DEFENSE COUNSEL'S FAILURE TO MOVE TO REOPEN THE SUPPRESSION HEARING IN LIGHT OF THE EGREGIOUS FALSIFICATION OF FACTS BY THE DETECTIVES REGARDING STERLING'S PURPORTED CONSENT TO SEARCH HER BEDROOM DEPRIVED MR. JOHNSON OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL.

A. Guiding Legal Principles.

B. The Warrantless Search of Sterling's Bedroom was Unlawful Absent Her Consent.

C. The Statements and Guns Were the Fruits of the Unlawful Entry and Search of Sterling's Bedroom.

D. The Verdict Would Have Been Different Had the Statements and Guns Been Suppressed.

II. THE STATUTE AND CASE LAW WHICH PRECLUDED MR. JOHNSON FROM ASSERTING THE DEFENSE OF JUSTIFICATION TO THE CHARGES OF AGGRAVATED AND RECKLESS MANSLAUGHTER VIOLATED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.

We have considered these arguments in light of the record and the applicable legal precedents and have concluded that they are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm and add only the following observations.

Because of the nature of the arguments raised on appeal, a complete recitation of the facts is unnecessary. Rather, we need only note that the charges against defendant related to an incident in March 2002 in which an innocent bystander was shot in the head during an exchange of gunfire between defendant and another man. The victim died at the scene. Witnesses identified defendant as one of the shooters and described the car he was driving during the incident. The police investigation revealed that the vehicle belonged to Sophia Sterling, who was defendant's girlfriend. Defendant was discovered hiding in a bedroom following a search of Sterling's residence. A handgun was found near defendant in a shoebox.

Defendant's first argument on appeal centers on his contention that Detective Iurato's trial testimony about Sterling's consent to search the locked bedroom was different from the testimony he gave during the suppression hearing. More specifically, defendant argues that his trial counsel's failure to move to reopen the suppression motion as a result of the different responses that Detective Iurato gave constitutes ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

The testimony given by Detective Iurato during the suppression hearing did not vary in any significant respect from his testimony during the trial. Defendant's assertion on appeal that it would have supported a motion to reopen the suppression hearing is therefore without merit. See State v. Battle, 165 N.J. Super. 521, 531 (App. Div. 1979). During cross-examination in both the suppression hearing and the trial, Detective Iurato was confronted with a statement in his grand jury testimony in which he stated that Sterling "refused at first to reopen . . . to open the door." He testified, both during the motion to suppress and at trial, that Sterling did not refuse to open the door. Rather, he explained that Sterling was holding the keys to the door in her upraised, open hand but that she "froze" in apparent fear when he asked her to open the door. He testified, both during the suppression hearing and at trial, that when Sterling did not move to open the door, he took the keys from her hand and opened it himself. Nothing in this testimony casts doubt on Sterling's consent to the search of the bedroom.

Moreover, we reject defendant's argument that Sterling withdrew her consent before Detective Iurato opened the locked door. Even if she hesitated or "froze" in fear and merely held out her hand with the keys in it, we do not equate that with a withdrawal of her consent. In the absence of an unequivocal act, see United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2001); United States v. Alfaro, 935 F.2d 64, 67 (5th Cir. 1991), or an express and explicit statement, see United States v. Wacker, 72 F.3d 1453, 1470 (10th Cir. 1995), cert. denied, 519 U.S. 848, 117 S. Ct. 136, 136 L. Ed. 2d 84 (1996), we do not conclude that the consent to search was withdrawn.

Furthermore, in light of the fact that Sterling testified both during the suppression hearing and at trial that she gave consent to the search of the locked bedroom, there is nothing in this record to support the suggestion that she refused her consent or withdrew her consent at any time. Plainly, the argument raised on appeal that the failure of counsel to move to reopen the suppression hearing amounts to ineffective assistance is without merit.

Because we have rejected defendant's arguments concerning the validity of the consent to search, his ineffective assistance claim fails because he cannot demonstrate that there is a reasonable probability that the outcome would have been different had counsel acted as defendant argues he should have. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2582-83, 91 L. Ed. 2d 305, 319 (1986); State v. Johnson, 365 N.J. Super. 27, 35 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004).

The second issue defendant raises on appeal is that the judge erred in rejecting his request to include a self-defense charge as a part of the jury instructions on aggravated manslaughter and reckless manslaughter. In light of the fact that our Supreme Court has held that justification defenses, like self-defense, are not available "where recklessness or negligence suffices to establish the requisite mental element," see State v. Moore, 158 N.J. 292, 303 (1999), we find no basis on which to afford him relief. See State v. Hogan, 336 N.J. Super. 319, 346 (App. Div.), certif. denied, 167 N.J. 635 (2001).

Affirmed.

 

First-degree aggravated manslaughter was a lesser included offense to the charges in the indictment of first-degree murder, N.J.S.A. 2C:11-3a, and first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3, as to which the jury acquitted him.

An additional count in the indictment for a certain persons offense, N.J.S.A. 2C:39-7, was dismissed as a part of the plea agreement.

In light of our disposition of this issue on appeal, we need not consider the several alternative arguments offered by the State to justify the warrantless search of the bedroom that led to the discovery of defendant and the other evidence found with him.

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A-6997-03T5

March 7, 2006