September 25, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDREW D. JOHNSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. 98-10-1964.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Wefing and Parker.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury convicted defendant of first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault with bodily injury, N.J.S.A. 2C:12-1b(7); third-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1b(2); fourth-degree aggravated assault with a weapon, N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b.*fn1 After merger, defendant's aggregate sentence was twenty-six and one-half years in prison, with a thirteen and one-quarter year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Johnson, No. A-2854-99T4 (App. Div. October 15, 2001). The Supreme Court denied defendant's petition for certification. State v. Johnson, 171 N.J. 42 (2002).
Thereafter, defendant filed a petition for post-conviction relief. After hearing oral argument, the trial court denied the petition. On appeal, defendant raises one contention, that he was denied the effective assistance of trial and post-conviction relief counsel.
Every defendant in a criminal action is entitled to the effective assistance of counsel. State v. Sugar, 84 N.J. 1, 17 (1980). To sustain a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S.Ct. 2039, 2043-46, 80 L.Ed. 2d 657, 664-67 (1984) (discussing generally the requirements of effective counsel).
The "benchmark" for judging a claim of ineffective assistance "must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. at 686, 104 S.Ct. at 2063, 80 L.Ed. 2d. at 692-93. A defendant claiming incompetent representation must demonstrate, first, that counsel's performance was deficient, i.e, that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.
A showing that the error complained of had some conceivable effect on the outcome of the trial is insufficient. "The defendant must show that there is 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. This standard has been expressly adopted by the New Jersey Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987).
In our opinion affirming defendant's convictions and sentence, we summarized the factual background that led to defendant's convictions in the following manner:
The attack took place at 228 River Street in Hackensack, New Jersey, where Summerville lived with his girlfriend and her daughter. Although Summerville testified that he sold video tapes from the apartment, there was testimony from which the jury could conclude that in fact Summerville sold narcotics, and that "video tape" was simply a code word a customer would use when requesting a bag of crack cocaine. There was also testimony that defendant would sell narcotics from the same building at times when Summerville was absent due to incarceration. Defendant denied doing so; he admitted he had sold drugs at the building but insisted he had only done so because Summerville forced him. He said that Summerville, a former boxer, had severely beaten him in the past, and that Summerville was demanding defendant sell drugs for him to satisfy an alleged debt. Defendant said he was afraid of Summerville; he told the jury of an alleged incident in which Summerville became so enraged when he learned that defendant had given a bag of crack cocaine to a steady customer who lacked the immediate cash but promised to pay that Summerville forced defendant to perform fellatio.
Defendant admitted stealing a handgun from his grandfather; he said he did so only because of his fear of Summerville.
Defendant went to 228 River Street, where several of his friends lived. One of them gave him a potato to use as a silencer.
Defendant found Summerville in a stairwell and shot him four times; all of the bullets entered Summerville from the back.
Defendant then fled up the stairs and came upon Hutchinson, whom he struck in the face with the pistol.
In his petition for post-conviction relief, defendant asserted that his trial counsel was ineffective for failing to request a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967), to challenge the photo identification that was made; for failing to object to certain hearsay testimony; for failing to prepare defendant to testify at the Miranda hearing, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966); for failing to request a voir dire of the jury panel after one of the jurors was excused; and for advising defendant to lie in his trial testimony.
We are satisfied that none of these challenged actions, either singly or in combination, warrant the relief defendant is seeking. Even at this point, defendant fails to articulate a sufficient basis to justify a Wade hearing. At trial, moreover, defendant did not deny the shooting but contended that he acted either out of passion/provocation or in self-defense. The question of identification was essentially not pertinent to the trial.
We have reviewed the testimony that defendant now contends his trial counsel should have objected to on the basis of hearsay. The State contends that the testimony was not hearsay because it was not offered for the truth of the statements.
N.J.R.E. 801(c). We do not find it necessary to resolve that evidential issue. We are satisfied that defendant cannot show that even if his trial counsel had been successful in interposing an objection, there is a reasonable probability that the outcome of the trial would have been different.
We also reject defendant's argument with respect to the Miranda hearing. Defendant has made no proffer of what he contends his testimony would have been if he had taken the stand at this hearing and how that would have affected the result of his trial.
The issue relating to the jury arose during the selection process, before the jury panel was sworn. One of the prospective jurors was excused after notifying the trial court following a recess that she recognized a woman sitting in the court room, who was defendant's aunt. She recalled that the two had gone to high school together. Defendant now contends that his trial counsel was ineffective for not requesting the trial court to interview the remaining jurors to determine whether the excused juror had communicated any information that might have influenced their ability to be fair and impartial.
The record does not provide support for that contention. Although the record is not entirely clear, we infer from the transcript that the juror in question was excused at the conclusion of the initial selection process, at the end of the court day. We reach this conclusion because the only discussion of the incident in the record occurred the following day, before the panel was sworn, when the trial court explained to the remaining members the absence of the particular individual. There was thus little or no time for that prospective juror to have imparted anything to the remaining members.
Finally, defendant provides no support at all for his assertion that his trial counsel advised him to lie during his testimony.
The order denying defendant's petition for post-conviction relief is affirmed.