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NOT FOR PUBLICATION WITHOUT THE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

ALLEN JOHNSON,

Defendant-Appellant.

December 8, 2015

Submitted November 12, 2015 Decided

Before Judges Alvarez and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 92-03-0420.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

AndrewC. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a second jury trial, defendant Allen Johnson was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree possession of a prohibited device, i.e., a defaced firearm, N.J.S.A. 2C:39-3(b). Defendant thereafter entered a guilty plea to fourth-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7. As a result, on July 28, 1993, defendant was sentenced to an aggregate term of life subject to thirty years of parole ineligibility.

In August 2013, pursuant to Rules 3:20-1 and 3:20-2, defendant filed two motions for a new trial based on two separate claims of newly discovered evidence. On November 7, 2013, the Law Division judge denied defendant's applications. For the reasons that follow, we affirm.

After his sentence in 1993, defendant filed an unsuccessful direct appeal, and between three and five post-conviction relief (PCR) applications.1 With regard to those proceedings, the second PCR application appeal decision mentions defendant's claim that his convicted co-defendant, Jason Wood, was prepared to testify that he alone committed the crime and that defendant "had nothing to do with it." State v. Allen Johnson a/k/a Ali Kwan, No. A-6661-96 (App. Div. June 23, 1998) (slip op. at 2). Defendant also filed an unsuccessful habeas corpus petition in February 2002. Defendant's petition for a writ of certiorari was therefore denied. Johnson v. Harvey, 546 U.S. 832, 126 S. Ct. 56, 163 L. Ed. 2d 85 (2005).

The shooting which ultimately led to defendant's conviction occurred in New Brunswick on December 28, 1991. We briefly described the facts developed during the trial in the opinion on the direct appeal

On January 4, 1992, Officer Morton observed the defendant and arrested him based on an outstanding warrant for previously threatening [the victim]. A handgun was found in defendant's shoulder holster; the gun proved to be the murder weapon. Defendant was brought to police headquarters and given his Miranda[2] rights, but he denied knowing anything about the shooting.

Later that afternoon, in another session with the police, defendant admitted he had loaned his car to [Wood] for $300, but he did not know why Wood wanted the car. Later when defendant learned he was being accused of the homicide, he asked Wood to give him a gun for protection.

Four days later, police officers served defendant with a complaint for murder. Defendant requested representation by a particular attorney, but when that could not be arranged because the attorney first wanted a retainer, defendant agreed to talk with the police, subject to certain conditions. He wanted to be moved to another jail than that in Middlesex County, he wanted his girlfriend brought to wherever he was transferred and he wanted to serve his eventual sentence in a state other than New Jersey. The assistant prosecutor agreed and defendant gave a statement.

[Defendant] said he had been approached by [] Wood on the evening of December 28, 1991 for a ride for which Wood would pay defendant $300. Defendant agreed, Wood got a small blue duffel bag from his house and then they began to drive around New Brunswick. Wood was threatening some harm to [the victim], and defendant was aware that something was going to happen to [the victim] but did not know exactly what. They saw [another individual] standing on a street corner, and after Wood spoke to [the other individual], he got out of the car and told defendant to park it as he had "got his man." Defendant said he left and drove along Thropp Avenue to a bar. While in the bar, someone came in and advised there had been a shooting nearby. Then Wood came into the bar and paid defendant $300.

[(slip op. at 2-4).]

In his statement of reasons for the sentence he imposed on defendant, which were attached to the judgment of conviction, now-retired Judge Barnett E. Hoffman referred to the State's trial theory that Wood was the shooter and defendant an accomplice.

The Law Division judge who decided the PCR application noted that during the trial several eyewitnesses placed defendant in his white Mercedes Benz near the scene of the crime. No witnesses claimed to have actually seen the shooting, but only to have seen defendant in the vicinity. Defendant relied upon the affidavit of M.H., an eyewitness, in one of his motions for a new trial. Although M.H. was interviewed by police, it is not clear if he testified for the State at trial.

M.H. states in the affidavit that on the evening in question, he saw defendant's car drive through the area twice, but that it was not until fifteen or twenty minutes later when he "heard gunshots coming from around the corner." M.H. further states that he did not see defendant outside of his car that evening. M.H. also averred that a third person, M.S., told him that defendant had asked defense counsel to contact him before trial so that M.H. could testify on defendant's behalf.

The PCR judge found that M.H.'s affidavit "merely repeats most of the testimony already heard during the trial[,]" and was thus not newly discovered evidence within the legal definition. It was merely duplication of the evidence the jury heard at trial.

Defendant's other motion for a new trial was based on a letter from trial counsel acknowledging that he was the New Brunswick Planning Board attorney when he represented defendant on the murder charges. The letter indicates that counsel had actually written "to attorney ethics" regarding whether the dual employment created a conflict of interest which barred him from representing defendant. In the letter, the attorney states he was advised that it was not a conflict.3 Currently, representation of a municipal zoning board, like the New Brunswick Planning Board, does not bar counsel from representing criminal clients on indictable matters heard at the county level.

Insofar as the alleged conflict of interest, the judge found that trial counsel acted reasonably in inquiring whether his representation of the New Brunswick Planning Board and defendant presented a conflict of interest. The judge further found that having been advised it did not, counsel acted reasonably in representing both. Since counsel acted reasonably, the representation fell within the realm of competent assistance, and defendant thus failed to meet the first prong of the Strickland v. Washington test. 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (in order to prevail on a petition for post-conviction relief based on ineffective assistance of counsel, a defendant must show that the representation fell outside the norm of professional competence and that the outcome of the proceedings was prejudiced as a result).

Now on appeal, defendant raises the following point

DEFENDANT'S MOTION FOR NEW TRIAL BASED UPON THE ACTUAL CONFLICT OF INTEREST SHOULD HAVE BEEN GRANTED AND NEWLY DISCOVERED EVIDENCE.

We have considered the issues raised in light of the record, arguments advanced in the briefs, and the governing legal principles. We consider them to be without sufficient merit to warrant discussion in a written opinion, R. 2:113(e)(1)(E), adding the following brief comments.

Whether to grant a motion for a new trial based upon newly discovered evidence rests within the trial court's sound discretion. State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). Such applications should not be granted unless the proffered evidence is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981).

Generally, a determination that evidence is not merely cumulative, impeaching, or contradictory is equivalent to one that the evidence is of the sort that would probably change the verdict and effectively implicate both the first and third criteria. State v. Ways, 180 N.J. 171, 188-89 (2004). When the claim relates to ineffective assistance of counsel, the guiding principle is that innocent people are not to continue to be incarcerated because they had less than diligent counsel. State v. Nash, 212 N.J. 518, 550 (2013).

Nonetheless, motions for a new trial on the basis of newly discovered evidence are not favored and "should be granted with caution." State v. Conway, 193 N.J. Super. 133, 171 (App. Div.), certif. denied, 97 N.J. 650 (1984). The newly discovered evidence must be capable "of raising a reasonable doubt as to the defendant's guilt." Ways, supra, 180 N.J. at 189.

The judge's ruling with regard to M.H.'s affidavit was a sound exercise of discretion. M.H.'s testimony would have been cumulative, not even impeaching, and of no effect on the jury's verdict in light of defendant's taped admission that he drove Wood around the area of the murder in his white Mercedes. Others testified at trial corroborating defendant's admission. Thus M.H.'s testimony would not have affected the jury's verdict. Moreover, the proffered evidence fails the Carter test, not just because it was cumulative, but because M.H.'s information was known before trial.

Turning to the issue of the alleged conflict of interest, defendant does not direct our attention to any way in which this affected the proceedings. The only advisory opinion on the subject at the time suggested the conflict arose because of the possibility that the public would perceive a defendant as enjoying a benefit from his attorney's relationship to the Planning Board. Under current law, an attorney who represents a municipal planning board would only be barred from representing a client before that agency or on matters implicating issues under that agency's jurisdiction. See In re Supreme Court Advisory Committee on Professional Ethics Opinion No. 697, 188 N.J. 549, 566-67 (2006). An attorney representing such a subsidiary agency is not barred from representing a private client before the municipality's other boards, agencies or municipal court. Id. at 567. This is not a circumstance such as that found in State v. Clark, 162 N.J. 201 (2000), in which the New Jersey Supreme Court concluded that a municipal prosecutor could not act as defense counsel in the county where the municipality was located.

Even if for the sake of discussion we consider the attorney's letter acknowledging the dual representation as newly discovered evidence, defendant offers no law, fact, or analysis that would make this alleged conflict of interest equivalent to ineffective assistance of counsel. Defendant does not identify any shortcoming of his attorney resulting from the representation. In the absence of any specific instance of less-than-professional representation, the existence of the alleged conflict does not per se amount to material evidence of substandard representation that would have changed the jury's verdict. See Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2068, 80 L. Ed. 2d at 696. Trial counsel's representation of a zoning board in the city in which the crime occurred in this case was irrelevant to the process and outcome.

In addition, none of the alleged newly discovered evidence establishes a prima facie case which warrants an evidentiary hearing. See R. 3:22-10(b) ("A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ."). The judge correctly denied such relief.

Affirmed.

1 Because of the age of the matter, copies of some prior decisions were not available to counsel.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 At the time, an Ethics Advisory Opinion from 1977 stated that such dual representation should not occur because of the possibility that the public would perceive a criminal defendant as receiving preferential treatment.