STATE OF NEW JERSEY v. JOHN RICHARDSON, JR.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3521-07T43521-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN RICHARDSON, JR., a/k/a

STANLEY RICHARDSON,

Defendant-Appellant.

__________________________________

 

Argued February 23, 2009 - Decided

Before Judges Reisner and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-01-0167.

Richard S. Lehrich argued the cause for appellant.

Debra G. Simms, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Simms, of counsel and on the brief).

PER CURIAM

Defendant, John Richardson, Jr., appeals from the February 15, 2008 order denying his petition for post-conviction relief (PCR). We affirm.

On January 14, 2001, a grand jury indicted defendant with first-degree purposeful or knowing murder of Joseph Clair (Clair), N.J.S.A. 2C:113(a)(1) and (2) (Count One); first-degree attempted murder of Terrell Anderson (Anderson), N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (Count Two); second-degree aggravated assault of Anderson, N.J.S.A. 2C:12-1(b)(1) (Count Three); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (Count Four); and second-degree possession of a handgun with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a) (Count Five). Following a jury trial, defendant was convicted of all charges except the first-degree attempted murder of Anderson. At sentencing, he received an aggregate thirty-year custodial term without parole eligibility. We affirmed his conviction on appeal. State v. Richardson, No. A-3667-01T4 (App. Div. October 20, 2004). The Supreme Court denied defendant's petition for certification. State v. Richardson, 182 N.J. 429 (2005).

Defendant next filed a motion for post-conviction relief (PCR) raising numerous issues, many of which could have been or were previously addressed on direct appeal. R. 3:22-4 and -5. Defendant also claimed ineffective assistance of counsel. After conducting oral argument on the petition, the trial court issued its February 15, 2008 written opinion denying the petition.

The court found that defendant's challenge to the trial court's instruction on passion/provocation based upon the trial court's misstatements, one of which was raised on direct appeal, did not warrant relief because the court correctly explained the law a number of times. Specifically, the court observed that after the misspeaks, the court provided the jury with summary paragraphs "which correctly state[d] the law" and "then gave the jury an enlarged written copy of a correct summary of the law, charged them correctly again with no errors, and repeatedly referred to the correct summary." The court determined that there was no obligation to re-charge the jury on self-defense in the absence of a specific request to do so from the jury.

The court also rejected defendant's claim of unpreparedness on the part of his trial counsel, stating that the trial record reflected no such unpreparedness. Likewise, the PCR judge rejected defendant's claim that trial counsel was ineffective for failing to locate witnesses Frank Wright (Wright) and Mike Jenkins (Jenkins), who would have provided testimony that Clair was armed because after the shooting, they observed Anderson remove something from Clair's body and throw the object, which they then recognized as a gun, into the bushes. The PCR judge concluded that this evidence that Anderson removed a gun from Clair's body and discarded it in the bushes was "already before the jury." Further, the court found no evidence of ineffective assistance of counsel for failure to object to evidence alluding to a statement by Kasim Hawthorne (Hawthorne). The PCR judge found that reference to Hawthorne's identification of defendant, from a photo array, as being involved in the shooting was "cumulative and inconsequential" given that other witnesses identified defendant as the shooter, defense counsel conceded in his opening that defendant was the shooter, and "defendant eventually testified to this fact."

Additionally, the judge reasoned that the decision to introduce evidence that defendant had shot at Clair's friend, Demetrius Collins (Collins), was a tactical decision that did not reflect ineffective assistance of counsel. The court noted that defendant testified that Clair sold drugs for Collins, and on two occasions in August 1999, Clair shot at defendant and pistol-whipped him in retaliation for defendant's shooting at Collins. Thus, the court concluded that the evidence was introduced to "convince the jury that the prior assaults against [defendant] justified [defendant's] fear and reaction, [and defendant] needed to explain away a gap in time between the first wave of assaults and the second."

Finally, the PCR judge rejected defendant's argument that his trial counsel should not have provided the State with a statement it secured from Lisa Williams in which she stated that prior to the time of the shooting, she overheard another person that she knew, Bobby Pierce (Pierce), tell defendant in a demanding voice to kill Clair. The judge referenced Rule 3:13-3(d)(4)'s requirement that such statements be turned over to the State if the statement is from a witness "'whom the State may call as a witness at trial.'" The present appeal followed.

On appeal, defendant raises the following points for our consideration:

[POINT I]

THE COURT BELOW ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

A. THE LACK OF PRETRIAL PREPARATION BY DEFENDANT'S TRIAL COUNSEL, COUPLED WITH THE COURT'S ARBITRARY DENIAL OF REASONABLE REQUESTS FOR ADJOURNMENTS, DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS AND A FAIR TRIAL.

B. TRIAL COUNSEL FAILED TO CONDUCT A THOROUGH INVESTIGATION THAT WOULD HAVE PRODUCED CRITICAL WITNESSES HELPFUL TO DEFENDANT'S CAUSE.

C. DEFENSE COUNSEL UNNECESSARILY AND GRATUITOUSLY SUPPLIED THE STATE WITH HIGHLY PREJUDICIAL EVIDENCE ADVERSE TO DEFENDANT'S INTERESTS IN THE CASE.

D. DEFENDANT WAS SUBSTANTIALLY PREJUDICED BY THE COURT'S IMPROPER ADMISSION OF "OTHER CRIMES" EVIDENCE REGARDING HIS ALLEGED DRUG DEALING.

E. THE ADMISSION AT TRIAL OF TESTIMONY REGARDING AN OUT-OF-COURT IDENTIFICATION OF DEFENDANT BY KASIM HAWTHORNE, WHO DID NOT HIMSELF TESTIFY, VIOLATED THE RULES OF EVIDENCE AND DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT OF CONFRONTATION.

F. DEFENSE COUNSEL IMPROPERLY PLACED DEFENDANT'S JUVENILE ADJUDICATION BEFORE THE JURY, AND THE TRIAL COURT ERRED IN FAILING TO GIVE A LIMITING INSTRUCTION.

G. IN WHAT WAS OBVIOUSLY A "CLOSE" CASE FOR THE JURY (AS TO THE DEGREE OF HOMICIDE), THE TRIAL COURT ERRED IN ITS CHARGE TO THE JURY, IN RESPECTS NOT CHALLENGED ON DIRECT APPEAL, DEPRIVING DEFENDANT OF A FAIR TRIAL AND DUE PROCESS; TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE ERRORS IN THE CHARGE AT TRIAL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUES PRESENTED ON APPEAL.

H. ADDITIONAL TRIAL ERRORS, COMBINED WITH THOSE CITED ABOVE, CONTRIBUTED TO THE DENIAL OF DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL, AND FURTHER DEMONSTRATE THE INEFFECTIVE ASSISTANCE PROVIDED BY DEFENDANT'S TRIAL ATTORNEY AND APPELLATE COUNSEL ON THE DIRECT APPEAL.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the PCR judge's lengthy and cogent written opinion of February 15, 2008. We briefly comment on the court's finding that two witnesses defendant contends were critical to his claim of self-defense, but whom trial counsel failed to investigate, would at most have provided cumulative testimony.

To make the requisite prima facie showing of ineffective assistance of counsel, a defendant must show a "reasonable probability" of succeeding under the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong, a defendant must show that trial counsel's representation was deficient. Fritz, supra, 105 N.J. at 52. This showing must overcome the "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Ibid. (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). To establish that counsel's representation was deficient, a defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Under the second prong, defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. Generally, prejudice is not presumed. Fritz, supra, 105 N.J. at 63. To be prejudicial, 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." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Defendant contends that trial counsel failed to conduct a thorough investigation that would have produced the two additional witnesses, Wright and Jenkins, who were present in the area when the shooting occurred. Neither man observed the shooting. Rather, they saw Anderson seated on a bicycle, Clair seated atop a parked vehicle, and defendant approaching Anderson and Clair's location. They heard the shots and afterwards saw Anderson remove something from Clair's body and discard the item in the bushes, only to retrieve it a short time later. They both stated that the item Anderson retrieved from the bushes was a gun. Defendant urged that their testimony would have been consistent with the testimony of Angela Collins (Collins), who testified that she saw Anderson remove a gun from Clair's body, hide the gun in a nearby bush, and later retrieve the gun and take it into a nearby apartment. The PCR judge found Wright's and Jenkins' testimony cumulative. Defendant urges that this testimony would not have been cumulative, particularly since the jury may have viewed her as a biased witness, given her relationship to Pierce, with whom defendant had a close relationship.

We do not agree that the proffered testimony of these two witnesses would have been cumulative, especially when it appears that neither witness had any particular connection to defendant or the victim. Collins, however, was engaged to Pierce and good friends with defendant. Nonetheless, accepting that Wright and Jenkins' testimony would not have been cumulative does not establish a prima facie case of ineffective assistance of counsel or sufficient facts to warrant the exercise of the court's discretion to hold an evidentiary hearing. Defendant was required to come forth with some evidence demonstrating that these witnesses would have been discovered through the exercise of due diligence, which defense counsel failed to do.

Defendant does not contend that he was aware of these witnesses and provided their names to defense counsel, who then failed to conduct an investigation. State v. Martini, 160 N.J. 248, 266 (1999) (Martini V) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695) (stating that "'counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'") Nor do the certifications from the two witnesses reflect any effort on their part to voluntarily come forward with relevant information.

In Wright's statement, when asked why he did not come forward until years later with his information, he remarked that he never heard from the police and that had he been asked, he would have provided the information. It is clear from his statement that he was aware defendant had been mugged weeks earlier. Similarly, we infer from Wright's statement that he was also aware of the contentious relationship between defendant and Clair. Inexplicably, however, he chose not to voluntarily provide any information to the police or to the defense until years later. Jenkins, in his statement, was not asked why he delayed providing information about his observations, but indicated that it was Wright, someone he occasionally saw, who told him defendant would be going to court soon and that there was an investigator who wanted to talk to him. In short, there is nothing to suggest defense counsel's failure to investigate these witnesses was in any way attributable to defense counsel's failure to conduct "reasonable investigations," Martini V, supra, 160 N.J. at 266, or was in any way so serious that counsel's performance fell below that to which defendant was guaranteed under the Sixth Amendment. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. at 693).

 
The remaining points raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

Hawthorne was a twelve-year-old boy who picked defendant's picture out of a photo array. Although he signed the back of the photo, his mother would not permit him to sign a statement. Importantly, Hawthorne did not testify at trial.

(continued)

(continued)

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A-3521-07T4

April 30, 2009