On appeal from the Superior Court of New Jersey, Law Division, Essex County, Ind. No. 95-12-3766.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Lihotz.
Defendant Marnell Johnson appeals from the denial of his petition for post-conviction relief (PCR), without an evidentiary hearing, in a single broadly stated argument expressed as:
THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING, BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO THE INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM.
The following facts were presented by the State at trial. On August 30, 1995, defendant, a front seat passenger, and three female back-seat passengers, were traveling in a black Honda Civic on Newark's Hunterdon Street, being driven by Terrance Manley. The group, in search of marijuana, approached Michael Stratford. Another individual, Kiante Martin, was present on the street with Stratford. Additionally, a group was assembled on the opposite side of the street. Martin disparaged Manley in a comment to Stratford. A verbal altercation ensued, and, the rear-seat passengers testified that Manley took a gun and shot Martin in the shoulder. Defendant then took the same gun and shot through the passenger window towards the youths assembled across the street, killing Felicia Sanders, and injuring Tagrah Loyal and Terrell Sorey.
Defendant and Manley were charged with murder, N.J.S.A. 2C:11-3(1) (count one), three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts two, three, and four), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six).
After a jury trial, defendant was convicted of first-degree aggravated manslaughter, a lesser included offense of count one, as well as counts two through six. Count six was merged with the other second-degree counts. The sentence imposed was: on count one, thirty years incarceration with a fifteen-year period of parole ineligibility; on counts two to four, three ten-year terms of incarceration with five-year periods of parole ineligibility, concurrent to each other and consecutive to the sentence on count one; and on count five, a five-year period of incarceration with a thirty-month period of parole ineligibility, concurrent with the other sentences.
On October 21, 1998, defendant's conviction and sentence were affirmed. The Supreme Court denied certification on March 16, 1999. State v. Johnson, 160 N.J. 89 (1999).
On the return date of defendant's PCR petition, defendant argued that he was entitled to an evidentiary hearing on his claim that trial counsel failed to properly conduct pretrial investigation. Defendant characterized himself as a "slow learner and a special education student." The argument presented to the PCR judge suggested that counsel should have obtained a psychological or psychiatric evaluation or expert report, "to explore any sort of mental defect that [defendant] may have had, [and] may still have," and to discern if defendant was "competent to stand trial, and . . . if there was any mental disease or defect that might amount to some kind of defense." Two additional arguments made to support the PCR claim that trial counsel afforded ineffective assistance included: had counsel performed a more through pretrial investigation, additional witnesses would have been discovered to dispute that defendant was the passenger-seat-shooter; and counsel should have presented character witnesses at trial.
After due consideration of the issues raised, Judge R. Benjamin Cohen denied the petition for PCR. Judge Cohen determined that defendant's petition failed to offer any evidence to support the implicit contention made by [defendant] that had [defense counsel] investigated the educational background of [defendant,] assuming that [he] was, as he claims to have been, in special ed and special schools, would that investigation have found anything about [defendant's] mental or psychological condition that would have either been evidence of -- that might have led to some defense to the charge or might have been taken into consideration in mitigation of sentence or in a plea bargain, for example.
With regard to the claim . . . [of] failing to adequately investigate and locate witnesses on the scene, the application . . . is devoid of any evidence that there were other witnesses that weren't spoken to or talked to on the scene; or if there were, who were they; and, most importantly, ...