On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-01-0167.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Sapp-Peterson.
Defendant, John Richardson, Jr., appeals from the February 15, 2008 order denying his petition for post-conviction relief (PCR). We affirm.
On January 14, 2001, a grand jury indicted defendant with first-degree purposeful or knowing murder of Joseph Clair (Clair), N.J.S.A. 2C:113(a)(1) and (2) (Count One); first-degree attempted murder of Terrell Anderson (Anderson), N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (Count Two); second-degree aggravated assault of Anderson, N.J.S.A. 2C:12-1(b)(1) (Count Three); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (Count Four); and second-degree possession of a handgun with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a) (Count Five). Following a jury trial, defendant was convicted of all charges except the first-degree attempted murder of Anderson. At sentencing, he received an aggregate thirty-year custodial term without parole eligibility. We affirmed his conviction on appeal. State v. Richardson, No. A-3667-01T4 (App. Div. October 20, 2004). The Supreme Court denied defendant's petition for certification. State v. Richardson, 182 N.J. 429 (2005).
Defendant next filed a motion for post-conviction relief (PCR) raising numerous issues, many of which could have been or were previously addressed on direct appeal. R. 3:22-4 and -5. Defendant also claimed ineffective assistance of counsel. After conducting oral argument on the petition, the trial court issued its February 15, 2008 written opinion denying the petition.
The court found that defendant's challenge to the trial court's instruction on passion/provocation based upon the trial court's misstatements, one of which was raised on direct appeal, did not warrant relief because the court correctly explained the law a number of times. Specifically, the court observed that after the misspeaks, the court provided the jury with summary paragraphs "which correctly state[d] the law" and "then gave the jury an enlarged written copy of a correct summary of the law, charged them correctly again with no errors, and repeatedly referred to the correct summary." The court determined that there was no obligation to re-charge the jury on self-defense in the absence of a specific request to do so from the jury.
The court also rejected defendant's claim of unpreparedness on the part of his trial counsel, stating that the trial record reflected no such unpreparedness. Likewise, the PCR judge rejected defendant's claim that trial counsel was ineffective for failing to locate witnesses Frank Wright (Wright) and Mike Jenkins (Jenkins), who would have provided testimony that Clair was armed because after the shooting, they observed Anderson remove something from Clair's body and throw the object, which they then recognized as a gun, into the bushes. The PCR judge concluded that this evidence that Anderson removed a gun from Clair's body and discarded it in the bushes was "already before the jury." Further, the court found no evidence of ineffective assistance of counsel for failure to object to evidence alluding to a statement by Kasim Hawthorne (Hawthorne).*fn1 The PCR judge found that reference to Hawthorne's identification of defendant, from a photo array, as being involved in the shooting was "cumulative and inconsequential" given that other witnesses identified defendant as the shooter, defense counsel conceded in his opening that defendant was the shooter, and "defendant eventually testified to this fact."
Additionally, the judge reasoned that the decision to introduce evidence that defendant had shot at Clair's friend, Demetrius Collins (Collins), was a tactical decision that did not reflect ineffective assistance of counsel. The court noted that defendant testified that Clair sold drugs for Collins, and on two occasions in August 1999, Clair shot at defendant and pistol-whipped him in retaliation for defendant's shooting at Collins. Thus, the court concluded that the evidence was introduced to "convince the jury that the prior assaults against [defendant] justified [defendant's] fear and reaction, [and defendant] needed to explain away a gap in time between the first wave of assaults and the second."
Finally, the PCR judge rejected defendant's argument that his trial counsel should not have provided the State with a statement it secured from Lisa Williams in which she stated that prior to the time of the shooting, she overheard another person that she knew, Bobby Pierce (Pierce), tell defendant in a demanding voice to kill Clair. The judge referenced Rule 3:13-3(d)(4)'s requirement that such statements be turned over to the State if the statement is from a witness "'whom the State may call as a witness at trial.'" The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE COURT BELOW ERRED IN DENYING DEFENDANT'S PETITION FOR ...