STATE OF NEW JERSEY v. KEVIN JOHNSON (2011)

Defendant, Kevin Johnson, appeals from an October 24, 2008 order denying his petition for post-conviction relief (PCR).  Defendant argues that his PCR counsel was ineffective because he failed to provide certifications from potential favorable witnesses, and that the PCR judge erred by denying his request for an evidentiary hearing.   We affirm.

The facts giving rise to defendant's convictions are set

forth in our earlier unreported opinion.  State v. Johnson, No. A-4926-03 (App.Div. Jan. 17, 2006).   We now summarize the facts for this appeal.

Nicholas Barone attended a party at a club in Asbury Park with codefendant, Chaz Morgan, and others.   Barone, his girlfriend, and cousin left the party and returned to Barone's apartment.   Morgan and defendant, who had not been at the party, arrived at the apartment in a Ford Taurus and observed Barone standing on the sidewalk.

Barone testified that defendant and Morgan, wearing masks, then pushed him up the stairs into his apartment and demanded money and his safe.   Morgan disputed this, testifying that he discussed moving the safe with Barone and that Barone invited them into the apartment.   Once inside, according to Barone, he and Morgan began to “tussle.”   Barone's dog attacked defendant.   Defendant pulled a gun and shot the dog.   Defendant did not testify at the trial.

Defendant and Morgan left the apartment in the Taurus with the safe.   A police officer observed the car driving at a high rate of speed and attempted to pull it over.   Defendant made an evasive right turn and then drove through two stop signs and a red light.   Defendant and Morgan exited the car and fled in different directions.   Defendant and Morgan resisted arrest but the police apprehended them.

At the conclusion of a jury trial, defendant was convicted of various offenses, including first-degree armed robbery, second-degree burglary, third-degree weapons related offenses, second-degree eluding, and third-degree resisting arrest.   The judge sentenced defendant to an aggregate seventeen-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Johnson, supra, (slip op. at 4-5).   His co-defendant, Chaz Morgan, was found guilty of robbery, burglary, and related offenses at the same trial.¹  In response to a remand for re-sentencing, the judge imposed the same aggregate term of seventeen years with eighty-five percent parole ineligibility.

Following the re-sentence, defendant filed a PCR petition.   Defendant argued that trial counsel was ineffective because he failed to investigate potential witnesses.   According to defendant, there were potential witnesses who would say that he and Barone were “business partners” and that they “had known each other for a while.”   He implied that if the jury knew that he was Barone's business partner, then he would be acquitted of robbery because the jury would have concluded that taking the safe was merely a business dispute.   He also contended that he was entitled to a new trial because Barone produced an affidavit after the trial that recanted his testimony.

The PCR judge denied the petition without conducting an evidentiary hearing.   The judge explained that defendant failed to establish a prima facie case of ineffective assistance of trial counsel.   The judge stated that “I have no affidavit from these [potential] witnesses.   I have no idea what they would or would not say in this particular case.”   The PCR judge also rejected Barone's attempt to recant his trial testimony.

On appeal, defendant raises the following points:

POINT 1

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF AND THE MATTER MUST BE REMANDED FOR REARGUMENT

POINT 2

THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND AN EVIDENTIARY HEARING

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2063, 80 L. Ed.2d 674, 691-92 (1984).   Whether “retained or appointed,” counsel must “ensure that the trial is fair;” therefore, “ ‘the right to counsel is the right to the effective assistance of counsel.’ ”  Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed.2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L. Ed.2d 763, 773 n.14 (1970)).   The New Jersey Constitution affords the same right to counsel.   N.J. Const. art.   I, ¶ 10;  State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693;  State v. Goodwin, 173 N.J. 583, 596 (2002).   First, defendant must show that defense counsel's performance was deficient.  Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693.   Second, defendant must demonstrate that there exists “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.   The precepts of Strickland and its tests have been adopted in New Jersey.   Fritz, supra, 105 N.J. at 58.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.  Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694.   Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding.  United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L. Ed.2d 657, 668 n.26 (1984).

An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997).   Our Supreme Court has noted that there is a “pragmatic dimension” to this inquiry.  Ibid. It stated:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted).]

We begin by addressing defendant's argument that his PCR counsel was ineffective because he failed to produce affidavits from potential exculpatory witnesses.   He contends that PCR counsel did not investigate who the potential witnesses were and what they would say.   Defendant implies that these potential witnesses would establish that the taking of the safe was a business dispute, rather than a robbery.   On this record, however, defendant's arguments lack merit.  “[W]hen a petitioner claims his ․ attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.”  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   Here, because defendant has not provided on appeal any corroborative certifications, he has failed to establish a prima facie claim of ineffective assistance of PCR counsel.

Next, defendant argues that Barone's affidavit constitutes newly discovered evidence warranting a new trial.   We disagree.

Barone stated in his May 18, 2006 affidavit that:

I, Nicholas Barone, upon my oath, depose and say:  That the statements made by me in the trial of [defendant] were coerced by the ․ Prosecutor's Office.   At no time did I ever witness [defendant] in the act of robbery at my house.   I was told by the ․ Prosecutor's Office that if I testified[,] my current drug and weapons charges would be dropped.   I only testified and implicated [defendant] because I was promised a deal by the Prosecutor's Office.   I'm sorry for any unnecessary hardship that was placed upon [defendant].

“[T]o qualify as newly discovered evidence entitling a party to a new trial, the new evidence must be (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).   We do not disturb a jury verdict except for the clearest of reasons.  State v. Ways, 180 N.J. 171, 187 (2004).  “Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial.”  Id. at 187-88 (citing State v. Buonadonna, 122 N.J. 22, 51 (1991)) (finding “sketchy” evidence insufficient to warrant new trial).

The PCR judge properly concluded that defendant failed to satisfy the final prong of Carter.   He stated:

Although Barone's testimony implicated defendant in the alleged crimes, the trial record also contains detailed testimony from ․ Barone's girlfriend, describing the ․ robbery and offering the same or substantially similar details of the event that Barone testified to.  [She] specifically testified that the person with her in the living room was wearing a mask, which she positively identified as item S-45. The State also presented testimony from the two arresting police officers ․ that confirmed the two defendants running from the scene and their apprehension.   Also, the codefendant, in his testimony, placed this defendant at the scene participating in the incident described.

And, in addition, there were several attempts prior to trial by ․ defendant to influence the testimony of Barone during the course of the trial.   They were thoroughly addressed at trial.   They went over them.   There was a separate hearing to that effect at the trial.   So, we have a situation where it was demonstrated that ․ defendant in this case tried to influence the testimony of Barone before trial.   Barone testified at that trial.   He testified under oath that there was no plea agreement[ ] that he had entered into beforehand and [he] had not been coerced by the police to say anything.

And so, you know, just simply to give that affidavit in this particular case and his recantation testimony is extremely suspect, coming years after the incident when he was faced with and had the other attempts by this defendant to change his testimony prior to trial.   And so the Court is, under all those circumstances, not inclined to say that the Carter standard had been met, and therefore, I will refuse to grant the new trial in this particular case.

We see no reason to disturb the detailed findings by the PCR judge.

Affirmed.

FOOTNOTES

FN1. Morgan's direct appeal was affirmed in a separate unpublished opinion.  State v. Morgan, No. A-3716-03 (App.Div. Jan. 17, 2006)..  FN1. Morgan's direct appeal was affirmed in a separate unpublished opinion.  State v. Morgan, No. A-3716-03 (App.Div. Jan. 17, 2006).

PER CURIAM