STATE OF NEW JERSEY v. CHARLES 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NOT FOR PUBLICATION WITHOUT THE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.

CHARLES JOHNSON,

Defendant-Appellant.

_________________________________________________________

April 15, 2014

Submitted April 8, 2014 Decided

Before Judges Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-01-0034.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant and others were indicted in connection with the robbery and killing of a hotel clerk in Union on July 14, 2002. Defendant was acquitted of purposeful murder, but convicted of: robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3(a)(3); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); unlawful possession of a weapon, N.J.S.A. 2C:39-5(c); theft, N.J.S.A. 2C:20-3; and receiving stolen property, N.J.S.A. 2C:20-7. For sentencing purposes, the judge merged the robbery and possession of a weapon for an unlawful purpose convictions into the felony murder conviction, and sentenced defendant on the felony murder conviction to a fifty-two-year prison term, subject to an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also sentenced to a four-year concurrent prison term on the merged theft convictions.

In his direct appeal, defendant, through counsel, argued that evidence seized as a result of a warrantless search should have been suppressed, and that the trial judge erred: in admitting testimony under the co-conspirator exception to the hearsay rule; in admitting testimony concerning defendant's possession of a similar gun on a prior occasion; and in denying a motion for a mistrial concerning what defendant claimed was the prosecutor's "deliberate violation of the court's order restricting testimony concerning shotgun wadding." In a pro se supplemental brief, defendant again argued the judge erred in admitting evidence pursuant to the co-conspirator exception to the hearsay rule; he also argued cumulative error and that his right to a fair trial was prejudiced by the accomplice liability jury instruction. We rejected all these arguments and affirmed. State v. Johnson, No. A-3802-05 (App. Div. August 25, 2010). The Supreme Court denied defendant's petition for certification. 205 N.J. 80 (2011).

On January 11, 2011, defendant filed a post-conviction relief (PCR) petition, arguing his trial and appellate attorneys were constitutionally ineffective. The PCR judge denied the petition for reasons set forth in a thorough written opinion.

Defendant appeals and, through counsel, argues:

I. DEFENDANT'S MURDER AND ROBBERY CONVICTIONS MUST BE REVERSED DUE TO TRIAL AND APPELLATE COUNSELS' INEFFECTIVENESS; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSELS' INEFFECTIVENESS.

A. Trial And Appellate Counsel Failed To Pursue The Trial Court's Omission Of A Specific Unanimity Instruction As To The Felony Murder Charge.

B. Trial And Appellate Counsel Failed To Pursue The Trial Court's Erroneous Charge That The State Only Needed To Prove "Any" Of The Elements Of Robbery In Order To Find Defendant Guilty.

Defendant filed a pro se supplemental brief that presents these additional arguments1 for our consideration:

II. THE FAILURE OF THE TRIAL COURT TO GIVE THE JURY A CORRECT CHARGE ON ROBBERY VIOLATED THE APPELLANT'S CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND DUE PROCESS OF LAW IN VIOLATION OF . . . N.J. CONST. 1947[] ART. 1, PARA. 9, AND U.S. CONST. AMENDMENTS VI AND XIV WHEN THE TRIAL COURT FAILED TO CORRECT THE JURY CHARGE IN ITS ENTIRETY.

III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL, [APPELLATE], AND PCR COUNSEL[] FOR [THEIR] FAIL[URE] TO CHALLENGE THE DEFECTIVE VERDICT SHEET WHERE THE JURY FOUND THE DEFENDANT NOT GUILTY OF FIRST DEGREE ROBBERY HOWEVER THE VERDICT SHEET DID NOT PROVIDE AN ADEQUATE OPPORTUNITY FOR THE JURY TO RETURN A VERDICT OF SECOND DEGREE ROBBERY IN VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER BOTH NEW JERSEY AND THE UNITED STATES CONSTITUTIONAL PROVISIONS.

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

In Point I, defendant complains of the failure of trial counsel to object and appellate counsel's failure to pursue in the direct appeal two aspects of the jury charge that he claims were faulty. The first aspect refers to the trial judge's handling of the possibility that the jury might not be unanimous regarding defendant's role in the robbery. The second refers to the judge's statement in his charge that the State needed only to prove "any" of the elements of robbery to find defendant guilty.

As to the first, the question relates to the possibility of a "patchwork" verdict because the State asserted alternate theories as to defendant's role in the robbery. The "patchwork" problem was described in State v. Parker, 124 N.J. 628, 635 (1991) (quoting People v. Melendez, 224 Cal. Rptr. 599, 608 (Cal. 1990)), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992), as occurring:

when, for example, "a single crime can be proven by different theories based on different acts and at least two of these theories rely on different evidence, and [when] the circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory."

In that circumstance, a general charge on jury unanimity will not suffice. Ibid.

Here, the judge first charged the jury, regarding felony murder, that the State "has two theories," the first being that defendant "is the person who actually was the shooter who killed" the hotel clerk; the second theory was that defendant "was with two others committing the robbery when the death occurred." At the charge's conclusion, the prosecutor argued that the judge should instruct the jury that it "need not be unanimous" as to whether defendant was the shooter so long as he engaged in the robbery, prompting the judge to give this further instruction:

Maybe some of you may find . . . [defendant] was the shooter. Some of you may find that [defendant] was a participant and not the shooter, someone else was the shooter, you could have six on one side, six on the other. It doesn't matter. You don't have to all agree [defendant] is the shooter. You all have to agree though that [defendant] participated in the robbery and all other aspects of the felony murder. Six of you can say he's the shooter, six of you can say he participated in the robbery where death occurred and he was not the shooter to satisfy the guilty verdict.

[Emphasis added.]

Although not the most artful expression of the principle the jury was told to consider, there was no objection to this revised instruction.

Moreover, the principles embodied in the jury charge comport with the legal requirements for this conviction. See State v. Roach, 146 N.J. 208, 223 (holding that a defendant "may be found guilty of murder even if jurors cannot agree on whether the defendant is a principal, accomplice, or a co-conspirator"), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). The judge explained that the jurors could disagree about defendant's precise role in the robbery that resulted in the hotel clerk's killing, but they had to be unanimous that defendant participated in the robbery in order to convict defendant of felony murder. These instructions were sound.

As to the second aspect of defendant's criticism of the charge, he correctly observes that the judge's brief summary of his robbery instructions was incorrect:

To summarize, if you find the State has proved beyond a reasonable doubt any of the elements of robbery as I defined them to you, you must find defendant guilty.

[Emphasis added.]

Clearly, the judge meant to say "all" instead of "any."

In considering defendant's argument that his attorneys were ineffective in either failing to object at trial or in failing to seek a new trial in the direct appeal because of this erroneous instruction, the PCR judge observed that the trial judge's charge regarding robbery "as a whole properly delineated the burden of proof" and that the jury was otherwise properly instructed. We agree. Other than this one misstatement, the trial judge's charge was unassailable. On appeal, we consider the assertion of error when viewing "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). Like the PCR judge, we are satisfied, in applying the plain error standard, that the trial judge's one misstatement regarding the State's need to prove all the robbery elements beyond a reasonable doubt in light of the entirety of his otherwise correct jury charge was not sufficient to prejudice defendant's right to a fair and just verdict.

1We have renumbered all the points posed on defendant's behalf.