STATE OF NEW JERSEY v. LOU JOHNSON (2011)

This is an appeal from the trial court's denial of defendant Lou E. Johnson's petition for post-conviction relief (“PCR”).  We affirm.

Defendant was convicted, after a 2003 jury trial, of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b);  second-degree sexual assault, N.J.S.A. 2C:14-2c(4);  third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a;  third-degree tampering with a witness, N.J.S.A. 2C:28-5a;  third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, as a lesser-included offense;  and fourth-degree sexual conduct, N.J.S.A. 2C:14-3(b), also as a lesser-included offense.   After appropriate mergers, defendant received an aggregate custodial sentence of sixteen years.

The pertinent facts, which are described in our unpublished opinion of February 10, 2006 ¹ upholding defendant's conviction and which we incorporate by reference, involve sexual offenses that defendant, a mental health aide, inflicted upon a fifteen-year old emotionally-disturbed patient at a facility where defendant was employed.   At trial, a psychiatric nurse testified for the State that she walked in on, and that she saw, the patient performing fellatio upon defendant in the facility's kitchen on March 16, 2002.   The nurse observed the patient's head in defendant's groin area and saw him exposed.   The patient later stated that she and defendant had previously engaged in inappropriate sexual contact on multiple occasions.   Defendant did not testify at trial, although he admitted to the police during their investigation that his penis had been exposed when the nurse entered the kitchen.

On the direct appeal, we remanded to have the trial court reconsider defendant's sentence in light of the Supreme Court's opinion in State v. Natale, 184 N.J. 458 (2005).   See Johnson, supra, slip op. at 13.   The trial court then reimposed the same sentence.   Defendant again appealed his sentence, and was heard on the Excessive Sentence Oral Argument Calendar on March 27, 2007.   His sentence was affirmed by order of this court the next day.   The Supreme Court denied certification.  State v. Johnson, 192 N.J. 293 (2007).

Defendant filed his PCR petition in the trial court in June 2007, alleging that his trial counsel was ineffective in numerous respects.   After considering defendant's arguments and the State's opposition, the Law Division denied the PCR application.   This appeal ensued.

In his appellate brief, defendant raises the following points:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A.  Trial counsel failed to investigate the case.

B. Trial counsel failed to present essential witnesses at trial.2

B(1) S.R.

B(2) M.S., A.H., and L.M.

B(3) Trial counsel's failure to call these witnesses amounts to ineffective assistance.

C. Trial counsel failed to object to the admission of “other crimes” evidence.

D. Trial counsel failed to present a proper opening statement.

E. Trial counsel deprived defendant of the opportunity to testify.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT IV

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We have fully considered these points in light of the governing law and the record as a whole.   Having done so, we affirm the dismissal of defendant's PCR petition, substantially for the cogent reasons set forth in Judge Lois Lipton's bench opinion of August 27, 2008.

We recognize that under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984).   To establish that he has been deprived of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that:  (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense.  Id. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693;  see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).   When reviewing such claims, courts apply a strong presumption that defense counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”   Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed.2d at 695.   “[C]omplaints ‘merely of matters of trial strategy’ will not serve to ground a constitutional claim of inadequacy ․ [.]” Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 374 U.S. 855, 83 S.Ct. 1924, 10 L. Ed.2d 1075 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980));  see also State v. Perry, 124 N.J. 128, 153 (1991).

The trial court correctly applied these well-established standards in rejecting defendant's PCR application.   We need not comment in detail respecting all of defendant's assorted criticisms of his trial attorney's performance, but, on the whole, we are satisfied that none of those criticisms rise to the constitutional magnitude required under the Strickland/Fritz test.

Defendant specifically contends that his trial attorney was ineffective in not presenting four witnesses (S.R., M.S., A.H., and L.M.), whom he identified in his PCR application as potential sources of exculpatory testimony.   He also contends that his trial counsel's pretrial investigation was deficient in failing to conduct interviews with two other individuals, A.J. and T.C., who allegedly were patients at the mental hospital and whom the victim had identified as being present when she was fondling defendant under the table in the day room while playing a board game.   The PCR judge reasonably concluded that any failure by trial counsel to pursue or present these potential witnesses was inconsequential.

With respect to S.R., M.S., A.H., and L.M., the PCR judge correctly noted that none of those four persons had firsthand knowledge of the critical events of March 16, 2002, which provided the key foundation for defendant's convictions.   At best, their testimony would have been general in nature.   The PCR judge noted that it would be “far fetched to imagine that any testimony from the other [potential] witnesses who did not witness this [March 16, 2002] incident, [three of whom] were fellow patients in a psychiatric facility, [and who were] adolescents, would have overcome the very clear testimony of [the psychiatric nurse], a witness the jury found to be credible.”   With respect to A.J. and T.C., the PCR judge correctly noted that defendant was acquitted of the specific count in the indictment concerning the alleged board game incident, and that their testimony, even assuming it were favorable to defendant, would at best only have had general impeachment value.

Defendant further claims that his trial attorney should have objected to the admission of certain prior “bad act” proofs and insisted on a curative instruction if such proofs were admitted.   The proofs in question were that defendant's former co-workers supposedly treated the victim poorly after she had complained about defendant.

The PCR judge noted that the trial record did not establish that these alleged acts of retaliation were done at defendant's behest, and that it is speculative to assume that the jury was unduly swayed by such proofs.   The PCR judge also fairly rejected defendant's claim that his trial counsel unwisely acknowledged during her opening statement that defendant's penis had been exposed in the kitchen on March 16, 2002, and that defendant had previously had a romantic relationship with the psychiatric nurse.   These acknowledgments fall within the reasonable realm of trial strategy, in an effort by counsel to stave off more serious findings of wrongdoing by the jury.   As the PCR judge aptly noted, defendant's “[t]rial counsel attempted to posit an alternative explanation for the circumstances that defendant had admitted in an attempt to mitigate the impact of defendant's admission to get the jury to return a guilty verdict on the lesser charge of lewdness.”   We also discern no professional misjudgment or actual prejudice in defense counsel's effort to try to impeach the nurse's credibility by suggesting that her testimony was affected by a terminated romantic relationship that she allegedly had with defendant.

In sum, we concur with the PCR judge's considered assessment that “trial counsel used sound professional judgment and trial strategy in attacking [the indictment].”   We further endorse the PCR judge's observation that “trial counsel mounted a strong, vigorous defense which resulted in acquittals on several counts of the indictment.”   Defendant failed to establish a prima facie case of ineffectiveness that would have justified a plenary hearing on his PCR application.   See State v. Preciose, 129 N.J. 451, 462-63 (1992).

The remaining arguments raised by defendant lack sufficient merit to be discussed in this opinion.   R. 2:11-3(e)(2).

Affirmed.

FOOTNOTES

FN1. See State v. Lou E. Johnson, No. A-5378-03T4 (App.Div. Feb. 10) (slip op.), certif. denied, 186 N.J. 366 (2006)..  FN1. See State v. Lou E. Johnson, No. A-5378-03T4 (App.Div. Feb. 10) (slip op.), certif. denied, 186 N.J. 366 (2006).

FN2. We refer to the potential witnesses only by their initials..  FN2. We refer to the potential witnesses only by their initials.

PER CURIAM