July 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARNELL JOHNSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 8, 2007
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, would they have said anything exculpatory with regard to [defendant]. . . .
Regarding the failure to call character witnesses, the PCR judge determined the decision was a matter of trial strategy, stating that "opening up character as an issue in this case, would have been a little short of suicide[,]" due to defendant's juvenile adjudications and adult felony convictions. Thus, under the most indulgent reading of the PCR petition, the PCR judge concluded that the two prongs of the Strickland*fn1 /Fritz*fn2 test were unmet.
Our review determines no error in the PCR judge's exercise of discretion to decline defendant's request for an evidentiary hearing. Evidentiary hearings on PCR petitions are neither mandated nor necessary to fully and properly evaluate each issue for relief asserted. See State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000). Rule 3:22-10 recognizes the PCR court's discretion to conduct evidentiary hearings. An evidential hearing becomes necessary when a defendant presents a prima facie basis to support the grant of relief by demonstrating a reasonable likelihood that his claim will ultimately succeed on the merits. State v. Preciose, 129 N.J. 451, 462 (1992). A defendant's "bald assertions" that counsel was ineffective will not sufficiently satisfy defendant's prima facie burden; the defendant must allege specific facts demonstrating the deficient performance. State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
To establish such a prima facie showing, a defendant must demonstrate a reasonable likelihood of succeeding under the two-pronged test set forth in Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. and adopted by the New Jersey Supreme Court in Fritz, supra, 105 N.J. at 58. Defendant must prove both deficient performance of counsel and a "reasonable probability" that such performance affected the outcome. Ibid. Under that test, defendant must specifically demonstrate "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). This is a high standard because "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." See Strickland, supra 466 U.S. at 690, 104 S.Ct. at 2065, 80 L.Ed. 2d at 695.
Defendant cites State v. Savage, 120 N.J. 594 (1990), as support. In that case, however, counsel's failure to pursue the defendant's psychiatric evaluation and incompetence defense was substantiated by the defendant's previous hospitalization for mental illness, which was compounded by drug addiction that may have caused him to hallucinate. Id. at 621.
The facts maintained by defendant in his PCR petition, that he attended special education classes because he was a "slow-learner," are unaccompanied by documentary evidence. The conclusion drawn by defendant that these facts, if investigated more thoroughly, would demonstrate whether defendant was fit to stand trial and whether he had an intellectual disability that might have constituted or supplemented a defense is, at best, speculative. Beyond his own assertions, defendant has offered no evidence of having a prior or ongoing intellectual disability. More critically, he has not shown how, even if he was a "slow learner," that condition would have constituted a defense or otherwise altered the outcome of the trial. See State v. Morton, 165 N.J. 235, 250-51 (2000) (evidence of defendant's "borderline intellectual functioning," and enrollment in special education classes determined not to provide justification or excuse for murder).
Defendant's claim that additional exculpatory witnesses should have been presented because "there were a lot of people alleged to have been out on [Hunterdon Street] that night[,]" fails to demonstrate "a reasonable likelihood that his claim will ultimately succeed on the merits." Preciose, supra, 129 N.J. at 462; see also Cummings, supra, 321 N.J. Super. at 170-71 (App. Div.) (claim of ineffective assistance denied where defendant "offered nothing" as to what additional witnesses would have said), certif. denied, 162 N.J. 199 (1999). As Judge Cohen observed, trial counsel conducted discovery locating two witnesses who described the appearance of the passenger-seat-shooter as distinctly different from that of defendant. However, "the jury apparently didn't believe these witnesses." Absent any more specific information, there is no basis to support the contention that additional witnesses existed who would have swayed the jury.
We determine the quality of counsel's trial performance was not ineffective and the trial decisions made, including the decision not to call character witnesses, did not deprive defendant of a fair trial. See State v. Castagna, 187 N.J. 293, 314-15 (2006); State v. Buonadonna, 122 N.J. 22, 42 (1991); see also State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983) (stating an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with counsel's exercise of judgment during the trial).