STATE OF NEW JERSEY v. THOMAS R. JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2000-07T42000-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS R. JOHNSON,

Defendant-Appellant.

________________________________________________________________

 

Argued October 28, 2009 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-04-0711.

Jason J. LeBoeuf argued the cause for appellant (Sussman & LeBoeuf, LLC, attorneys; Mr. LeBoeuf, of counsel and on the brief).

Patricia B. Quelch, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel; Daniel J. Eastmond, Legal Assistant, on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) following a hearing. We affirm.

A jury convicted defendant of armed robbery, N.J.S.A. 2C:15-1, in 2002. He was sentenced to a term of twenty years with ten years of minimum parole ineligibility, which was to run consecutive to a sentence defendant was serving for a separate offense, as well as appropriate fines and penalties. Defendant appealed his conviction, raising the following issues as error: (1) the admission of prior statements of victims into evidence; (2) preliminary instructions given to the jury; and (3) denial of his motion for a new trial. This court affirmed his conviction and sentence in an unpublished opinion, State v. Johnson, No. A-6495-01 (App. Div. Oct. 29, 2003); his petition for certification was denied by the Supreme Court on February 13, 2004. State v. Johnson, 179 N.J. 311 (2004).

Defendant filed a petition for post-conviction relief on January 26, 2007. The PCR judge presided over defendant's trial on this charge. The PCR judge found that two of defendant's claims were procedurally barred pursuant to Rule 3:22-4 because they could have been raised on direct appeal: (1) the alleged ineffective assistance of counsel based upon inadequate cross-examination and (2) the denial of a fair trial based upon the trial court's refusal to adjourn the trial to permit a substitution of counsel. As a result, these claims were denied without a hearing. The PCR judge also found that defendant failed to make a sufficient showing to warrant an evidentiary hearing on the following allegations of ineffective assistance of counsel: (1) failure to investigate; (2) failure to adequately prepare the defense with defendant; and (3) counsel's alleged ineffectiveness in pressuring defendant not to testify at trial. The PCR judge held an evidentiary hearing on the remaining issue, the alleged ineffectiveness of counsel in failing to pursue an alibi defense.

Pertinent evidence from the trial can be summarized as follows:

The robbery for which defendant was convicted occurred at approximately 11:15 p.m. on December 31, 1998, in Asbury Park. The robbery victims, Justin Holly and Carl Wallace, were sitting in a parked car outside their night club to alert potential club-goers that the opening they had planned for that evening was canceled. Two masked men opened the car doors, pointed guns at them and demanded their belongings. Holly recognized one of the robbers as Jamal Fischer. Wallace recognized the voice of the other robber as defendant. After the robbers took Holley's jewelry and money, they ran to a waiting maroon Nissan 240SX that was later determined to be registered to defendant's girlfriend, Tynisha Moore. Wallace identified a third man, who drove the getaway car, as Kyle Johnson. The victims chased them for a couple of blocks until they saw a police officer.

Johari Reevey testified at trial that she loaned her car to Jamal Fischer between 8:00 and 9:00 p.m. that evening. Approximately one hour later, defendant arrived with Moore at her home in Neptune in Fischer's black Mercedes Benz. He and Moore stayed at her home for approximately twenty minutes. Defendant returned at some point between 1:00 and 4:00 a.m., without Moore, but driving her maroon Nissan 240SX. On January 1, 1999, Fischer and Kyle Johnson were located in Reevey's car. A search of the car produced a skull cap containing Holley's stolen jewelry.

The evidence presented at the PCR hearing can be summarized as follows:

Moore testified that she was at work at First Union Bank in Carlstadt that evening. Defendant picked her up between 8:30 and 9:00 p.m. and dropped her off at her apartment, also in Carlstadt, between 9:15 and 9:45 p.m. She stated that defendant then went to a fast food restaurant in Hillside and brought food back to her. She estimated that he was gone about thirty-five to forty minutes and returned between 9:45 and 10:30 p.m. He remained with her for a while and then said that he was going to his brother's apartment approximately two blocks away in Hillside. She stated that defendant called her later but was imprecise about when and for how long. Initially, she said that he called "eleven-ish" and was on the phone with her for approximately one hour to one and one-half hours. Later, she said that they were on the telephone until 1:00 a.m. She testified that she spoke to defendant's attorney "numerous times" and told him she wanted to testify but that he said that it was not a good idea.

Defendant's brother, Richard Jones, testified that he arrived home that evening between 7:30 and 7:45 p.m. Defendant was living with him at the time. Although unsure of the exact time, Jones stated that defendant arrived between 7:30 and 8:00 p.m. Jones stated that defendant watched television and spoke on the telephone with his girlfriend for the rest of the night. This testimony conflicted with Moore's version of events. Jones stated that he tried to call defendant's lawyer to give him this information but never received a return call.

Defendant testified that his attorney, Adam Weisberg, represented him in this and another criminal matter and only met with him on one occasion regarding this matter. He told Weisberg that his wife, then Ms. Moore, was able to offer information regarding an alibi and provided him with her telephone number. He said that Weisberg never told him that he was having any difficulty reaching Moore and that, if that was the case, he could have addressed the issue with her since Moore visited him every week in jail.

Adam Weisberg testified that he has been a criminal defense attorney since 1991. In 2000, he was appointed by the public defender's office to represent defendant regarding three indictments. At the time that he assumed representation in this case, a prior attorney had filed a notice of alibi on behalf of defendant. Weisberg was interested in pursuing that defense after reviewing statements Moore had given to the police and believed that he discussed an alibi defense with defendant in their first meeting. He testified that he met with defendant on numerous occasions during the two years that he represented him on this and other charges and estimated that he discussed this case with defendant nine to ten times. He had concluded that he could not put defendant on the stand because of his criminal record.

Weisberg testified that the "alibi defense wasn't working." He was also concerned that if Moore testified, "the State could really get her and that could blow up in [his] face during the trial." Weisberg testified that Moore had given conflicting statements which also conflicted with Reevey's statement. In her initial statements to the police, Moore had stated that, on the night of the robbery, she had punched out from work at First Union shortly before 11:00 p.m. and was picked up by defendant. He had sought documentation of that from First Union and received two faxed letters that contained poor grammar and misspellings, "something you wouldn't expect from a bank." He called the number on the letter several times but the telephone just rang and rang without being answered. He also requested that an investigator pursue this further to identify the writer of the letter but did not get a positive response. As a result, he had suspicions that the letter, purportedly from First Union, was not authentic.

Weisberg testified that he attempted to get in touch with Moore several times to clear up some of these issues. She did not return any of his calls and the public defender investigator was unable to locate her. In February 2002, Weisberg had a video conference with defendant in which he explained the difficulties posed by pursuing an alibi defense. Weisberg testified that, although defendant "wanted it to work," he understood and they came to an "understanding that [he] would basically put the defense of alibi in [his] back pocket" and consider some of the other available defenses.

Weisberg did not rule out the alibi defense completely until trial. He still had not had any contact with Moore. The alibi defense was effectively rebutted by Reevey, who testified that she had known defendant for seven years and saw him with Moore hanging out with Fisher at approximately 9:00 or 10:00 p.m. in Neptune on the evening of the robbery. Weisberg testified that he leaned over to defendant following her testimony and stated that he was glad that he had not pushed the alibi defense because it could not have survived after her testimony and because they still did not have Moore. Weisberg also testified that defendant never told him that his brother was a potential alibi witness and that he never received any messages from Jones.

In denying the petition, the PCR judge set forth his findings, including his determination of the credibility of the witnesses. He found Weisberg's testimony to be credible, explicitly accepting his statements "that he could not make contact with Tynisha [Moore] and that Richard Jones was not presented as an alibi witness." The PCR judge found that Moore and Jones had close ties to defendant which "colored the court's willingness to rely on them" and noted that Moore had made a number of inconsistent statements. The PCR judge also reviewed Weisberg's testimony regarding his analysis of the viability of the alibi defense and stated:

[T]he court is satisfied that Mr. Weisberg made a sound decision to concentrate on other avenues to attack the [S]tate's case rather than utilize an alibi defense that could easily be attacked. The court is also satisfied that he conferred with Mr. Johnson about that and Mr. Johnson was aware of his decision in that regard. Mr. Weisberg testified that he was aware of the strategy and left the strategy to him. . . . "Counsel's fear that a weak alibi could cause more harm than good is the type of strategic decision that should not be second guessed on appeal." This court will not second guess Mr. Weisberg.

Therefore, defendant hasn't established that defense counsel's performance was deficient. The court is also satisfied because of the weaknesses in the defense alibi, even if presented, it would not have changed the results of this case.

[(citation omitted).]

Accordingly, the PCR judge denied the petition. In this appeal, defendant presents the following issues:

POINT I

THE PCR COURT IMPROPERLY DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TRIAL COUNSEL'S INEFFECTIVENESS MARKED BY HIS FAILURE TO PROPERLY INVESTIGATE POSSIBLE DEFENSES AND RAISE A VIABLE ALIBI DEFENSE DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL.

POINT II

THE PCR COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF AS DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN THE COURT REFUSED TO ALLOW THE DEFENDANT'S CHOSEN COUNSEL TO REPLACE ASSIGNED COUNSEL.

POINT III

THE PCR COURT ERRED IN NOT GRANTING AN EVIDENTIARY HEARING ON ALL ASPECTS OF DEFENDANT'S PETITION AND THE MATTER SHOULD BE REMANDED FOR A FURTHER HEARING REGARDING THOSE CLAIMS.

POINT IV

TRIAL COUNSEL WAS INEFFECTIVE BY PROCEEDING WITH OPENING STATEMENTS WITHOUT FIRST RECEIVING AN IN LIMINE RULING FROM THE COURT ON THE STATE'S MOTION TO INTRODUCE WITNESSES' PRE-COURT STATEMENTS TO THE JURY. (NOT RAISED BELOW).

We find these arguments to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L. Ed. 2d at 698.

A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. R. 3:22-10(a); State v. Goodwin, 173 N.J. 583, 596 (2002); State v. Preciose, 129 N.J. 451, 462 (1992). However, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, l58 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

We are satisfied from our review of the record that, aside from the claim relating to the failure to pursue an alibi defense, defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR judge correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63.

The witnesses who defendant presented at the evidentiary hearing were very vague about the times and provided conflicting versions of defendant's activities and whereabouts on the night of the robbery. While Jones testified that defendant came home in the early evening and remained in the Hillside apartment for the entire night until morning, Moore testified that he did not go to his brother's apartment until several hours later. Moore also gave inconsistent versions of events. The record therefore established that defendant's purported alibi defense was, at best, cobbled together with inconsistent statements from defendant's wife and brother that also conflicted with testimony from a witness with no apparent motive to fabricate her testimony. The PCR court reasonably concluded that Weisberg's testimony was more credible and that his decision to abandon the alibi defense reflected an exercise of judgment that is entitled to our deference. See State v. Loftin, 191 N.J. 172, 198 (2007); State v. Castagna, 187 N.J. 293, 314 (2006).

We are also satisfied that the PCR judge correctly concluded that defendant's claims based upon the trial court's refusal to adjourn the trial to permit him to substitute counsel and his attorney's allegedly inadequate cross-examination were procedurally barred by Rule 3:22-4 as they could have been raised on direct appeal and did not fall within any of the exceptions enumerated in the Rule. Defendant also argues that trial counsel was ineffective by proceeding with opening statements before receiving the trial court's ruling as to whether prior statements by the victim witnesses would be admissible at trial. As this issue was not presented in the PCR proceeding, it is not properly before us. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Further, because this issue could have been raised on direct appeal, it is procedurally barred as well. R. 3:22-4.

 
Affirmed.

Tynisha Moore later married defendant and testified at the evidentiary hearing. She did not testify at trial. To distinguish her from defendant and to be consistent with the references to her in the record, Tynisha Moore Johnson is referred to here by her maiden name.

At the evidentiary hearing, Moore testified that defendant picked her up from work between 8:30 and 9:00 p.m.

(continued)

(continued)

2

A-2000-07T4

April 19, 2010