STATE OF NEW JERSEY v. ANDREW D. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0787-07T40787-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW D. JOHNSON,

Defendant-Appellant.

_______________________________

 

Submitted June 1, 2009 - Decided

Before Judges Carchman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-04-0768.

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Convicted in 2002 of various crimes committed in connection with his brief escape from the Bergen County Jail, defendant Andrew Johnson filed a petition for post-conviction relief ("PCR"). The Law Division rejected his PCR application, and defendant appealed. We affirm.

We need not elaborate the underlying facts, which we previously detailed in our unpublished opinion on direct appeal. See State v. Andrew D. Johnson, A-5487-01T4 (App. Div. Oct. 22, 2003), certif. denied, 178 N.J. 376 (2003). It will suffice to say that on November 11, 1999, defendant and two other inmates attacked Corrections Officer Bruce Moshen, kicking and choking him. Defendant then scaled two razor-ribboned fences and escaped. He accosted a woman in a nearby retail parking lot, struggling with her in an unsuccessful attempt to take her minivan keys. Defendant then ran to a construction site, which he accessed by climbing over a six-foot fence. He was captured there by two County police officers.

Defendant admitted trying to escape, but he denied participating in the attack on Moshen or being violent with the minivan owner. Following a jury trial at which defendant elected not to testify, he was convicted of second-degree attempted aggravated assault, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:12-1(b)(1); second-degree escape, N.J.S.A. 2C:29-5; first-degree carjacking, N.J.S.A. 2C:15-2; and second-degree robbery, N.J.S.A. 2C:15-1. He was sentenced to an aggregate fifty-year sentence, with a fifteen-year period of parole ineligibility to run consecutively to his prior sentence.

On direct appeal, we rejected defendant's various claims that the trial court: (1) improperly admitted opinion testimony from an investigating detective; (2) failed to charge the jury with certain lesser-included offenses; (3) erred in fashioning the charge on escape; and (4) imposed an excessive sentence. We remanded the matter for the trial court to interview a juror who defendant's mother alleged was related to the attacked corrections officer, and also to have the court merge the robbery conviction into the carjacking conviction.

Defendant filed a petition for PCR relief, which was considered by the same judge who had presided over his 2002 trial. Defendant argued that his conviction must be set aside because of the alleged ineffectiveness of his trial attorney. More specifically, defendant claimed that his counsel was ineffective in failing to: (1) object to allegedly improper statements by the prosecutor; (2) request the trial judge to admonish Moshen for referring to God in his testimony; (3) investigate potential witnesses, including a former inmate at the jail named Orlando Fields; (4) meet and strategize with defendant; (5) make certain evidentiary objections, including an objection to the admission of the blood-stained clothing of the minivan owner; and (6) remind the trial judge to interview the juror who had been accused of potential bias. Defendant submitted no factual certification in support of his PCR claims.

After hearing oral argument, Judge Meehan denied defendant's PCR petition. In his oral ruling, the judge separately addressed what he described as defendant's "blanket claims" of alleged ineffectiveness, and concluded that they lacked merit. The judge also noted, from his recollection of the trial, that the proofs of defendant's guilt were "overwhelming." The judge discerned no basis to conduct an evidentiary hearing.

Defendant now appeals, arguing that the trial court erred in denying the petition and should have conducted an evidentiary hearing. Defendant also argues that his PCR counsel was ineffective, specifically in failing to draft a certification in support of the petition and in failing to demand an evidentiary hearing.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Measured by these standards, we are satisfied that the trial court's dismissal of defendant's PCR petition was correct, substantially for the reasons articulated in Judge Meehan's oral opinion. We are also satisfied that an evidentiary hearing was unnecessary, in light of the weakness of defendant's contentions. State v. Preciose, 129 N.J. 451, 460 (1992). We also are not persuaded that defendant's PCR counsel was himself ineffective. We add only a few short comments concerning three of the issues: (1) the failure to present trial testimony from Fields; (2) the admission of the minivan owner's bloody clothing; and (3) the non-occurrence of the juror interview.

Defendant alleges that Fields observed Officer Moshen after the attack with a towel draped around his neck. He suggests that the towel might have obscured Moshen's ability to recognize defendant as one of his attackers. This claim is entirely speculative and uncorroborated. It does not vitiate the overwhelming quantum of evidence of defendant's guilt, including the fact that defendant was covered with Moshen's blood when he was arrested. Although defendant's trial counsel apparently was not supplied with a tape recording of Fields's statement before trial and had not done further investigation of what Fields may have seen, we perceive no reason to set aside the convictions on that basis.

As to the bloody clothing of the minivan owner, trial counsel was not ineffective in failing to object to that evidence. The blood had been transferred to the van owner during her struggle with defendant. The evidence of the blood transfer further corroborated defendant's violent encounter with Moshen and his escape over a razor-wired fence, which preceded his interactions with the van owner. The evidence was not unduly prejudicial under N.J.R.E. 403.

Lastly, we agree with Judge Meehan that defendant did not establish a basis for relief arising from the non-occurrence of the juror interview. There is nothing to contradict the representations made on the record that diligent efforts had been made to try to locate the juror after our remand. If the juror ultimately is located, we do not foreclose defendant from seeking enforcement of our prior directive that she be interviewed, or other appropriate relief from the trial court.

Affirmed.

 

The PCR transcript indicates that the juror was not able to be located, despite attempts by an investigator from the Public Defender's Office to find her. The post-remand interview consequently did not take place.

We have been supplied with two transcripts of the PCR proceeding, one dated February 22, 2007, and the other dated February 23, 2007. The transcripts are identical in content. Because the court's order of April 9, 2007 dismissing the PCR petition refers to the hearing date as February 23, 2007, we will presume that is the correct date.

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A-0787-07T4

July 17, 2009