STATE OF NEW JERSEY v. DONALD GEORGE JOHNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD GEORGE JOHNSON, a/k/a

DONALD G. JOHNSON,

Defendant-Appellant.

__________________________________________

July 6, 2016

Before Judges St. John and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-08-0768.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Amanda K. Dalton, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Donald Johnson appeals an April 30, 2014 order, denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Having reviewed the record in light of applicable law, we affirm.

I.

After a jury trial, defendant was convicted of first-degree aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a); first-degree conspiracy to commit murder, in violation of N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:5-2; third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5; and second-degree possession of a weapon for unlawful purpose, in violation of N.J.S.A. 2C:39-4. Thereafter, defendant received an aggregate sentence of twenty-five years imprisonment subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

In an unpublished opinion, we affirmed defendant's conviction and sentence. State v. Johnson, No. A-0462-09 (App. Div. Oct. 15, 2012), certif. denied, 213 N.J. 535 (2013). The facts that gave rise to defendant's arrest and conviction are set forth in our earlier opinion and will not be repeated.

Defendant filed a petition for PCR on June 10, 2013. He contended that his counsel was ineffective for improperly "opening the door" to questions on gang activity, failing to object to subsequent questions on gang activity or request a hearing, failing to conduct an adequate pretrial investigation, and only meeting with defendant twice before trial. Judge Stuart Peim denied defendant's petition in a comprehensive written opinion without an evidentiary hearing.

In denying defendant's petition, the judge concluded that counsel's questioning was a "strategic decision" to advance the defense that a third-party had a motive to kill and falsely identify defendant as the shooter. The judge noted that "[d]efense counsel and defendant were cautioned by the trial court multiple times that questioning Trammell about his motive to commit the shooting would open the door to previously barred gang testimony" and that "[d]efendant stated multiple times on the record that he agreed with counsel's decision to pursue this line of questioning, and that he was fully aware of the consequences." Moreover, "[t]his strategic decision cannot be complained of once it did not work."

The judge rejected defendant's claim that his counsel was ineffective for failing to object to the State's questions relating to gang activity. The judge quoted our decision in defendant's direct appeal, which affirmed the trial court's ruling allowing the State to respond after defendant opened the door to previously precluded material. Likewise, the court rejected defendant's claim that his counsel should have requested a hearing to determine the extent of the testimony admitted related to gangs, stating that "defendant has failed to establish how requesting a hearing on this matter would have resulted in a different outcome," given that "the trial judge was very clear about the impact defense counsel's questioning of Trammell would have on the trial judge's previous [Rule] 404(b) ruling."

The judge concluded that "defense counsel made a strategic decision to question Trammell about his motive to commit the shooting based on prior incidents as part of his argument of third-party guilt, and this decision does not constitute deficient performance."

The judge also denied defendant's claim that counsel was ineffective for failing to conduct an adequate pretrial investigation because defendant failed to make any showing that there would have been a "'reasonable probability' of a different result." Lastly, as to defendant's argument that counsel only met with him twice before trial, the court found that defendant "fail[ed] to make any showing of what [additional] meetings would have accomplished and how he was prejudiced."

The judge concluded that defendant "falls far short of setting forth a prima facie claim of ineffective assistance of counsel on any single claim or cumulatively . . . . Rather, [his] petition rests on second-guessing and speculation." Therefore, defendant's petition for PCR was denied. It is from that decision that defendant appeals.

II.

On appeal, defendant presents the following issue for our consideration

POINT I

DUE TO COUNSEL'S WAIVERING [SIC] IN HIS STRATEGY WHICH INVOLVED "OPENING THE DOOR" TO PRIOR GANG ACTIVITY, PETITIONER WAS DEPRIVED THE EFFECTIVE ASSISTANCE OF COUNSEL. CONTRARY TO THE TRIAL COURT'S RULING, AN EVIDENTIARY HEARING WAS REQUIRED IN ORDER TO QUESTION TRIAL COUNSEL TO ASCERTAIN WHY HE PERMITTED OVERWHELMINGLY PREJUDICIAL EVIDENCE TO PERMUTATE [SIC] THIS TRIAL WHEN THE TRIAL COURT HAD ALREADY EXCLUDED SAME. TRIAL COUNSEL'S REPRESENTATION VIOLATED PETITIONER'S RIGHT TO A FAIR TRIAL AND DUE PROCESS.

A. The Trial.

B. The Appellate Division Decision.

C. The Petition for Post-Conviction Relief.

We review the PCR court's factual findings to determine if they are supported by substantial credible evidence, and conclusions of law under a de novo standard. See State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). However, where, as in this case, "no evidentiary hearing has been held, we 'may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010) (alteration in original), (quoting Harris, supra, 181 N.J. at 421), certif. denied, 206 N.J. 64 (2011).

To establish a prima facie claim of ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987); State v. Miller, 216 N.J. 40, 58 (2013), cert. denied, U.S. , 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). First, "[t]he defendant must demonstrate [] that counsel's performance was deficient." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted). Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid. A defendant is not entitled to an evidentiary hearing on a PCR petition unless he presents legally competent evidence to support both prongs of the Strickland test. State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014).

To establish that his trial counsel was deficient, defendant must show his "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Parker, supra, 212 N.J. at 279 (citation and internal quotation marks omitted). In making that showing, defendant "must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid. "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).

To meet the second prong, defendant must also show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Parker, supra, 212 N.J. at 279-80 (citation and internal quotation marks omitted). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

A PCR court deciding whether to grant an evidentiary hearing "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Preciose, 129 N.J. 451, 462-63 (1992).

Defendant contends that his counsel's questioning, opening the door to previously excluded testimony about gang activity, and counsel's failure to object to the State's examination concerning gang evidence or request a curative instruction amounted to ineffective assistance of counsel.1 He further argues that his petition necessitated an evidentiary hearing because his certifications and the transcripts were enough to establish a prima facie case. We disagree.

During trial, counsel defended the case against defendant by asserting a third-party guilt defense that Trammell had a personal motivation to commit the crime, thereby creating reasonable doubt that defendant was responsible for the murder. Counsel made it clear to the court that he was aware of the testimony he was eliciting from Trammell and the ramifications that would follow.

In response to the court's warning that he was opening the door to allow in gang-related evidence, defense counsel supported his strategy, and defendant expressly acknowledged to the court his agreement with his counsel's strategy. Although defendant's third-party guilt defense was unsuccessful, an undesired result in the proceeding is not sufficient to demonstrate ineffective assistance of counsel. State v. Norman, 151 N.J. 5, 37 (1997).

As our Supreme Court has stated

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant a reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 366 (quoting Castagna, supra, 187 N.J. at 314-15).]

Thus, even if defense counsel's opening-the-door strategy was a "strategic miscalculation," viewed in the context of the entire trial, it was not "of such magnitude as to thwart the fundamental guarantee of a fair trial." Allegro, supra, 193 N.J. at 366. Additionally, defendant has failed to demonstrate that counsel's questions prejudiced defendant, and that, but for counsel opening the door to gang-related evidence, the outcome of the trial would have been different. Id. at 367.

Defendant's argument that his counsel was ineffective for failing to object to the State's redirect examination of Trammell and failing to ask for a curative instruction is also without merit. We previously ruled that defense counsel opened the door and the State was properly allowed to question Trammell about gang-related activity. See Johnson, supra, slip op. at *13.

The testimony of Trammell elicited by the State was admissible and its admission "did not constitute an abuse of discretion of manifest denial of justice." Id. slip op. at *13. "[D]efendant suffered no prejudice by the reference to gangs, since defendant sought to discredit Trammell's testimony and implicate him as the shooter." Ibid. Therefore, defendant is unable to satisfy the second prong of the Strickland/Fritz standard. He has not shown that but for counsel's failure to object to the State's questioning or request a curative instruction, the outcome of the proceeding would have been different. Allegro, supra, 193 N.J. at 367.

For those reasons, we agree with the PCR court that defendant failed to present a prima facie case of ineffective assistance of counsel.

Defendant argues his claim of ineffective assistance of counsel was improperly denied without an evidentiary hearing. We disagree. Rule 3:22-10(b) states in part, "[a] defendant shall be entitled to an evidentiary hearing only upon establishment of a prima facie case in support of post-conviction relief." Further, an evidentiary hearing would not have aided the PCR court's analysis of defendant's entitlement to PCR. Therefore, the PCR judge did not err in denying defendant an evidentiary hearing with respect to his ineffective assistance claim based on his attorney's strategic decision, opening the door to previously precluded material and the State's response to it.

Affirmed.

1 Defendant does not challenge on appeal the other claims raised before the PCR court.