February 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARKEITH JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-04-1069, 00-04-1070, and 00-02-0550.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2008
Before Judges Stern and C.L. Miniman.
Defendant was tried by a jury before Judge Donald Merkelbach, and convicted of unlawful possession of a weapon, (N.J.S.A. 2C:39-5b), and possession of hollow point bullets, (N.J.S.A. 2C:39-3f) (indictment 00-04-1069), and possession by a convicted felon (N.J.S.A. 2C:39-7b) (indictment 00-04-1070), and sentenced to concurrent terms aggregating fifteen years with seven to be served before parole eligibility, the extended term imposed on the convicted felon offense. The sentences were made consecutive to concurrent sentences, aggregating ten years with five years to be served before parole eligibility, imposed the same day by Judge Merkelbach on offenses resulting in convictions before Judge Betty Lester.
After we affirmed the convictions and the Supreme Court denied certification, defendant petitioned for post-conviction relief (PCR). Defendant now appeals from the denial thereof.
NO OTHER CONCLUSION CAN BE REACHED BUT THAT COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL
a. At the very least the matter must be remanded to the trial court as to Points One and Two of Defendant's Petition for Post Conviction Relief since these were not considered by the trial court
b. Trial counsel provided ineffective assistance failing to demonstrate any confidence in the defendant being acquitted of the charges rather than attempting to force the defendant to plea
c. Trial counsel rendered ineffective assistance because she failed to subpoena Officer Velazquez who would have testified that the defendant produced a valid registration and insurance card
d. Trial counsel was ineffective in failing to present Dr. Kern's report at the time of sentencing in support of a general mitigating factor
e. Trial counsel was ineffective for failing to move to suppress the weapon as being the result of an illegal motor vehicle stop
THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL OR, ALTERNATIVELY, IN FAILING TO VOIR DIRE THE JURORS INDIVIDUALLY AFTER THEY OVERHEARD COMMENTS MADE BY DEFENDANT TO OFFICER BERRY
FOR ALL OF THE FOREGOING REASONS, THE COURT BELOW ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING, PARTICULARLY WITH REGARD TO THE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL OF THE TRIAL COURT'S DENIAL OF AN EVIDENTIARY HEARING
THE COURT BELOW ERRED IN DENYING DEFENDANT'S REQUEST FOR POST CONVICTION RELIEF BASED UPON THE IMPOSITION OF AN EXCESSIVE SENTENCE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
We find no merit whatsoever to these contentions, and conclude that only the following comments are warranted in a written opinion. R. 2:11-3(e)(2).
Point I(a) relates to the case tried before Judge Lester on another indictment, and defendant could have, and did, raise issues relating to that matter in a PCR addressed to Judge Lester. We addressed the PCR in that case in A-4673-05T4 being filed simultaneously herewith.
Defendant complains that his counsel pressured him to plead guilty because she had no confidence in the case. The record reflects that counsel considered the State's offer of fifteen years, with five to be served before parole eligibility for defendant's additional cases, to be concurrent with the sentences to be imposed for the convictions before Judge Lester, "an excellent offer." Encouragement to accept the plea recommendation seems reasonable under the circumstances.*fn1 At trial, the defendant developed through Officer Berry that he produced a valid registration and insurance card when stopped, so counsel did not have to call Officer Velazquez on this issue. It probably would have led to a repetition of harmful testimony.
Assuming that any issue related to Dr. Kern's report does pose an issue of legality of the sentence, and is somehow cognizable on PCR, see State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988), the judge made clear at the PCR hearing that defense counsel submitted the report before sentencing. Therefore, there can hardly be an issue of effectiveness because the court had the report. (The report was dated August 16, 2000, and sentencing was conducted on September 12, 2000.) Assuming that denial of a motion to suppress can somehow be attributed to the effectiveness of counsel, according to Judge Merkelbach in his PCR opinion, counsel did in fact make a motion to suppress the weapon, and the judge found the motion was properly denied.*fn2 If that is not enough, the only contention now raised with respect to the issue is the claim that defendant could not have "possess[ed]" the car in which the gun was found because it "was not registered to him and, therefore the car could not have been in his 'possession' when he was stopped." That argument is meritless.
Before a verdict was announced, the jurors apparently sent a note that three of them heard defendant threaten Officer Berry. The record at trial reveals only the following:
THE COURT: All right, ladies and gentlemen, I received at 3:40 P.M. the following note. I think that it is very important for the judge to know that three people saw the defendant mouth off to Police Officer Berry "I am going to get you," and I am not sure whether -- it appears to me to say I will see. I should also note that I have been informed now, and it's about seven minutes to four, that the jury has returned a verdict.
First of all, I note that this morning, understanding that and observing that Mr. Johnson was angry, I spoke to Mr. Johnson out of the presence of the jury in the presence of all of us here and told him and assured him that I would make sure that he got a fair trial, just as I would make sure the State gets a fair trial. And I also said to him that he has further assurances of a fair trial in that if he were convicted the Appellate Court would be reviewing everything that was done here and if they found that I didn't give him a fair trial they would reverse it and send it back. Then I told Mr. Johnson, Mr. Johnson, I can't -- don't do anything, don't act in any way in front of this jury that would hurt your own cause. I don't remember the exact words, but that was the message.
So what I propose to do, ladies and gentlemen, is this: I think at this point I will not take the verdict initially. What I propose, and I will listen to both of you, I propose to bring the jury out and say the following to them: Ladies and gentlemen, as I am sure you can understand, a defendant often gets excited and agitated while under the pressure of a criminal trial. This is after I have read to them what I have in front of me. Under no circumstances should you consider what you saw or perceived that this defendant did or what any one of you said they saw or perceived. Your verdict should be based solely upon the evidence presented without any bias, passion or prejudice.
Ladies and gentlemen, I am going to ask you to go back into the jury room, consider this instruction, and we will await -- and we will be here to hear from you as to any verdict or any question.
[PROSECUTOR]: What is the last part, Judge? You said you are not to perceive anything that the defendant did.
THE COURT: Under no circumstances should you consider what you saw or perceived that the defendant did, okay, and that obviously goes to the three people who claim they saw this, or what any of you said they saw or perceived. In other words, the rest of the people obviously heard from somebody else what they saw or perceived.
THE COURT: Any comments on that?
[PROSECUTOR]: No, Judge.
THE COURT: Satisfactory to the State?
[PROSECUTOR]: Satisfactory to the State.
THE COURT: Mr. Johnson or [defendant's counsel]?
[DEFENDANT'S COUNSEL]: I approve of your Honor's suggestion that the statement be read to the jurors and that they be returned for further deliberations.
THE COURT: Okay.
All right, bring the jury out and the alternates in, please.
The following then occurred before the jury:
THE COURT: All right, ladies and gentlemen, I received at 3:40 p.m. the following note. I think that it is very important for the judge to know that three people saw the defendant mouth off to Police Officer Berry "I am going to get you," and I am not sure about the last two words, is it I'll see?
Can somebody tell me what the last two words are?
JUROR #2: Let me see that.
THE COURT: Those last two words.
JUROR #2: You'll see.
THE COURT: You'll, y-o-u, apostrophe ll, see.
Ladies and gentlemen, I am sure that all of us can understand that a defendant can often get very excited and agitated while under the pressure of a criminal trial. Under no circumstances should you consider what you saw or perceived that this defendant did or what anyone of you said they saw or perceived. Your verdict should be based solely upon the evidence presented during this case, which includes the witnesses' testimony and the exhibits which you have with you in the jury room. And that evidence should be considered without any bias, passion, or prejudice on your part.
Now, before I receive any verdict from you I am going to ask you to go back into the jury room, consider this statement along with your deliberations and we will await any decision that you have.
All right, everybody understand?
Defense counsel did not object or ask for an individual voir dire. The next day before the convicted felon phase, however, defense counsel sought a mistrial which was denied by the judge after concluding:
I am satisfied, number one, that the conduct in question was caused completely by the defendant. Number two, I am also satisfied that based upon the evidence in this case and based upon my curative instruction that the jury was able to abide by the instruction and reach a verdict based upon what they heard in this courtroom and was not influenced by the conduct of the defendant.
There is no claim of ineffective assistance of counsel on this point. Rather, defendant asserts that the mistrial should have been granted. We do not know how one can grant a mistrial for the portion of a trial which already resulted in a verdict before the motion was made. In any event, even if the judge should have asked each juror individually "if he or she could remain fair and impartial," he gave the cautionary instruction and proceeded as he did without objection at the time,*fn3 and the issue was not raised on the direct appeal. R. 3:22-4.
Defendant contends that his sentence was imposed "in violation of the Sixth and Fourteenth Amendments to the United States Constitution." However, he does not note the "pipeline retroactivity" portion of State v. Natale, 184 N.J. 458, 494-96 (2005); see also State v. Pierce, 188 N.J. 155, 174 (2006) (applying the Natale remedy to an extended term which is now to run "from the bottom of the ordinary-term range to the top of the extended-term range.") State v. Thomas, 188 N.J. 137, 152- 54 (2006), simultaneously decided with Pierce, also applies the Natale principle of pipeline retroactivity.
The denial of PCR is affirmed.