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State v. Johnson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 1, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WENDELL JOHNSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 95-04-0519.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2009

Before Judges Rodríguez and Yannotti.

Defendant Wendell C. Johnson appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In March 1997, following a jury trial, defendant was convicted of first degree kidnapping, N.J.S.A. 2C:13-1b; first degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second degree sexual assault, N.J.S.A. 2C:14-2c; third degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; and fourth degree theft by deception, N.J.S.A. 2C:20-4. After appropriate merger, the judge imposed a thirty-year term with a fifteen-year period of parole ineligibility for the kidnapping conviction and a consecutive, one-year term for the theft conviction. On direct appeal, we affirmed the convictions, but modified the sentences so that the one-year consecutive term imposed for theft would run concurrent with the other terms. State v. Wendell Johnson, No. A-5168-97T4 (App. Div. Mar. 20, 2000), certif. denied, 165 N.J. 530 (2000).

The State's evidence, which the jury credited, was that on February 11, 1995, defendant misrepresented himself as a bounty hunter. He pulled over a car being driven by K.T., a nineteen-year-old Rutgers University student. Defendant forced K.T. into his car and compelled her to withdraw money from an ATM. Defendant then drove to an isolated location and raped K.T.

After escaping from defendant's car, K.T. went to Muhlenberg Hospital, where she reported the assault and received treatment. The police arrived at the hospital and spoke with K.T. Upon her release, K.T. was driven to the New Brunswick police station where she gave a taped statement to an investigator with the Middlesex County Prosecutor's Office.

At trial, defendant testified that he stopped to assist K.T., whose car was disabled. K.T. asked him for a ride. He agreed. This led to a consensual sexual encounter.

Defendant filed a first PCR petition in June 2001. An attorney from the Office of the Public Defender filed a supplemental letter brief. In his pro se petition, defendant claimed that trial counsel was ineffective in failing to interview the doctor and nurse who attended to K.T. at the hospital. The doctor testified at trial. The nurse did not. Defendant claimed that an interview with the nurse may have provided "information useful in attacking [K.T.'s] credibility[.]"

Defendant also claimed that trial counsel should have interviewed Anne Koenick, the Director of the Rutgers University Sexual Assault Service, and Danielle Tisch, both of whom were present at the hospital and police station when K.T. was interviewed. Defendant argued that such interviews might have provided useful information concerning K.T.'s appearance and demeanor immediately after the assault. Finally, defendant argued that Detective Valenti, one of the first officers to respond to the hospital, should have been interviewed regarding K.T.'s demeanor.

The trial judge denied the petition without a hearing. Defendant appealed. We affirmed in part, but remanded for further consideration of defendant's claim that trial counsel did not render effective assistance because counsel failed to present at trial a video recording of K.T.'s statement to the police. State v. Wendell Johnson, A-0830-03T4 (App. Div. Jan. 19, 2005), certif. denied, 184 N.J. 210 (2005). This was our remand instruction:

[o]n remand, the PCR judge should conduct an evidentiary hearing at which defendant's trial counsel, if still available, can be called to testify as to whether he had the [video]tape and if not, why not, or, if so, why it was not used as defendant now suggests.

Following a hearing, the judge again denied PCR. Defendant and trial counsel testified at the hearing on remand. The judge found that trial counsel's failure to play the videotape at trial did not constitute ineffective assistance of counsel.

Defendant appeals contending:

THE DEFENDANT'S PETITION FOR [PCR] SHOULD BE GRANTED. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.

DURING THE EVIDENTIARY HEARING[,] THE COURT COMMITTED AN ABUSE OF DISCRETION IN FAILING TO GRANT THE DEFENDANT ADDITIONAL TIME TO PRODUCE A KEY WITNESS WHOSE TESTIMONY WAS ESSENTIAL IN DETERMINING THE MERITS OF DEFENDANT'S PETITION FOR [PCR].

We reject these contentions and agree with the PCR judge that the petition should be denied.

Defendant has not satisfied either prong of the Strickland v. Washington*fn1 standard for determining ineffective assistance of counsel. This standard was adopted by the New Jersey Supreme Court in State v. Fritz.*fn2 The judge held an evidentiary hearing. She found no defective performance by trial counsel because counsel made a strategic decision not to admit the videotape into evidence. Strategic decisions reached after careful review of the law and facts are virtually immune from challenge. Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Moreover, we find no abuse of discretion in the PCR judge's denial of an adjournment to locate Detective Valenti. The PCR hearing occurred in February 2007, almost ten years after the conviction. A further delay was unwarranted. The judge's findings are supported by the proofs at the evidentiary hearing. State v. Johnson, 42 N.J. 146, 162 (1964); State v. Locurto, 157 N.J. 463, 470-71 (1999). Therefore, we have no basis to interfere.

Affirmed.


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