STATE OF NEW JERSEY v. SHAWN ROBERT JOHNSON

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5469-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHAWN ROBERT JOHNSON,

     Defendant-Appellant.
___________________________

                   Argued September 21, 2021 – Decided October 4, 2021

                   Before Judges Fisher and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 07-04-
                   1027.

                   Daniel S. Rockoff, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Daniel S. Rockoff, of
                   counsel and on the brief).

                   Melinda A. Harrigan, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for respondent (Lori Linskey, Acting Monmouth
                   County Prosecutor, attorney; Mary R. Juliano, Special
            Deputy Attorney General/Acting Assistant Prosecutor,
            of counsel and on the brief).

PER CURIAM

      Defendant was charged, among other things, with the first-degree

attempted murder of Jerome Crooms on October 16, 2006, and the first-degree

murder of Tylik Pugh two days later. Defendant gave a voluntary statement to

police in which he admitted shooting both victims but claimed he acted in self-

defense. A jury heard and considered the evidence and found defendant guilty

of all charged offenses. Judge Ira E. Kreizman, who presided over the trial,

sentenced defendant to an aggregate sixty-year prison term.         Defendant

appealed, raising numerous issues about the jury instructions, certain evidence

rulings, and the sentence imposed. We rejected those arguments and affirmed.

State v. Johnson, No. A-1746-08 (App. Div. Jan. 13, 2011). The Supreme Court

denied certification.  207 N.J. 228 (2011).

      In March 2012, defendant filed a post-conviction relief petition based on

what he claimed was newly-discovered evidence, namely, the information

contained in an affidavit executed by Tyshan Smalls in 2008. In denying the

petition, Judge Richard W. English concluded that the affidavit set forth "yet

another version" that would be inconsistent with other earlier inconsistent

versions.   Defendant appealed, we affirmed substantially for the reasons

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provided by Judge English, State v. Johnson, No. A-3147-13 (App. Div. May

28, 2015), and the Supreme Court denied certification,  223 N.J. 282 (2015). In

2017, the United States District Court for the District of New Jersey denied

defendant's petition for a writ of habeas corpus and request for a certificate of

appealability, Johnson v. New Jersey, C.A. No. 15-8322, 2 017 U.S. Dist. LEXIS
 6229 (D.N.J. 2017), and denied defendant's motion for reconsideration, Johnson

v. New Jersey, 2 017 U.S. Dist. LEXIS 111594 (D.N.J. 2017). The United States

Court of Appeals for the Third Circuit denied defendant's request for a certificate

of appealability, Johnson v. Adm'r, N.J. State Prison, C.A. No. 17-2697, 2 018 U.S. App. LEXIS 2869 (3d Cir. 2018), and the Supreme Court of the United

States denied defendant's petition for certiorari, Johnson v. Johnson,  139 S. Ct. 255 (2018).

      In March 2018, defendant moved in the trial court for a new trial based on

newly-discovered evidence: the information contained in both Smalls' 2008

affidavit and an affidavit executed by Crooms on March 2, 2018. Crooms, who

had also previously provided inconsistent statements and testimony, asserted

that he gave Pugh a handgun on October 15, 2008, and that Pugh then fired shots

at defendant and another. He also asserted that defendant "fired back defending

himself" and he (Crooms) was "accidently . . . shot in the back."         Crooms


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explained he came forward at this late date because he (Crooms): had "lied

about" being with Pugh that day; "didn't want [Pugh] to get in trouble for what

[Pugh] did"; and "didn't want to get in trouble for being the one, who gave

[Pugh] the black hand gun that day."

      Judge English again considered the Smalls affidavit previously found

insufficient to warrant post-conviction relief, as well as the newer Crooms

affidavit. The judge rendered a thorough oral decision explaining why he denied

defendant's motion.

      In appealing, defendant argues we "should remand for an evidentiary

hearing . . . so that a judge may hear new evidence that [Pugh] carried a deadly

weapon during the 3-day period in which [defendant] alleged that [Pugh]

attacked him 3 times." We find insufficient merit in this argument to warrant

further discussion in a written opinion. R. 2:11-3(e)(2).

      In seeking a new trial based on a claim of newly-discovered evidence,

defendant was obligated to show the new evidence was "(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. Nash,  212 N.J. 518, 549 (2013) (quoting State v. Carter,  85 N.J. 300,


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314 (1981)). The Smalls Affidavit is not supported by the second factor because

it was available to defendant ten years before the motion was filed. And while

we can assume the Crooms Affidavit satisfies the second factor it fails on the

first and third.

      As the judge correctly recognized, the Crooms Affidavit presents yet

another contradictory version of the events and – because it was contradictory

of his other inconsistent versions – the affidavit did not contain the type of

evidence that "would shake the very foundation of the State's case" and its

contents, if presented at trial, would not likely have altered the verdict. See

State v. Ways,  180 N.J. 171, 189 (2004). The judge did not abuse his discretion,

see State v. Smith,  29 N.J. 561, 573 (1959), in recognizing that if the case was

retried and this new version presented, and readily shown to be in conflict with

Crooms's other versions, the jury would likely find Crooms unreliable and do as

it likely did before:   determine the issues by resorting to the considerable

independent evidence presented during the original trial. Defendant's motion

was properly denied.

      Affirmed.




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