July 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARKEICH JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-07-1546.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 2, 2011
Before Judges Fisher and Simonelli.
Following a jury trial, defendant was convicted of first- degree robbery, N.J.S.A. 2C:15-1; first-degree kidnapping, N.J.S.A. 2C:13-1b; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4e; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. The charges stem from defendant's involvement in the robbery of a jewelry store using a cigarette lighter that looked like a gun and the confinement of one of the victims during the robbery.
The trial judge sentenced defendant to an aggregate fifty- year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed, and we affirmed. State v. Johnson, No. A-4077-03 (App. Div. July 27, 2005) (slip op. at 8). The Supreme Court granted certification and summarily remanded the matter to the trial court for re- sentencing pursuant to State v. Pierce, 188 N.J. 155 (2006). State v. Johnson, 188 N.J. 262 (2006). On remand, the trial judge imposed the same sentence.
Defendant thereafter timely filed a petition for post- conviction relief (PCR) arguing that (1) the trial judge erred in his response to a jury question regarding unanimity to convict, and trial counsel was ineffective for failing to object thereto; and (2) the repeated referral to the cigarette lighter as a gun rather than an imitation handgun prejudiced defendant, and trial counsel was ineffective for failing to object thereto and compounded the error by referring to the cigarette lighter as a gun, as well. Judge Sarkisian denied defendant's petition in a written opinion rendered on December 1, 2008.
Subsequently, we granted defendant's motion for a limited remand to allow defendant to file a motion to supplement the record of his petition. Defendant's second PCR counsel then filed an amended PCR petition and brief incorporating the contentions raised in defendant's first PCR petition. Counsel also contended the petition was not procedurally barred and defendant received the ineffective assistance of trial and first PCR counsel for the same reasons expressed in Point IV(A) through (G) below. Judge Isabella denied the petition for the reasons expressed in a written opinion rendered on September 15, 2010. This appeal followed.
In this appeal, defendant raises the following contentions:
POINT I - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT MIS-APPLIED THE PROCEDURAL BAR OF RULE 3:22-4
POINT II -THE COURT ERRED IN DENYING POST- CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S AND THE STATE'S WITNESSES MISCHARACTERIZATIONS OF THE IMITATION WEAPON BEING A REAL HANDGUN; TRIAL COUNSEL'S PARTICIPATION IN THIS MISREPRESENTATION[;] TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S JURY INSTRUCTION ON COUNT THREE[;] AND TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S COERCIVE RESPONSE TO THE JURY'S QUESTION SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL
POINT III-THE COURT'S RULING DENYING POST- CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
POINT IV-DEFENDANT REASSERTS ALL OTHER
ISSUES RAISED IN POST-CONVICTION RELIEF
PCR COUNSEL FAILED TO PROVIDE ANY SUPPORTING DOCUMENTS OR WITNESSES
TO SUPPORT HER CLAIM
TRIAL AND PCR COUNSEL FAILED TO ADEQUATELY INVESTIGATE THE USE OF THE WEAPON
TRIAL AND PCR COUNSEL FAILED TO ARGUE THAT THE ARRESTING OFFICER KNEW PETITIONER AND WAS BIASED AGAINST HIM AND THAT THE SHOW-UP WAS BIASED AND PREJUDICIAL
TRIAL AND PCR COUNSEL WERE INEFFECTIVE FOR FAILING TO REQUEST THAT THE COURT GIVE A CROSS-RACIAL IDENTIFICATION CHARGE TO THE JURY
TRIAL AND PCR COUNSEL WERE INEFFECTIVE IN FAILING TO ARGUE
THAT PETITIONER'S ARREST AND SUBSEQUENT SEARCH WERE ILLEGAL
TRIAL COUNSEL WAS INEFFECTIVE IN ADVISING PETITIONER THAT HE WOULD RECEIVE NO MORE THAN 20 YEARS. PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO BRIEF THIS ISSUE
PETITIONER WAS THE VICTIM OF PROSECUTORIAL MISCONDUCT
We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Isabella in his well-reasoned written opinion. However, we make the following brief comments. The jury was advised that the "gun" defendant used during the robbery was an imitation handgun. Accordingly, the references to the "gun" were not prejudicial. Moreover, the fact that the object was a cigarette lighter and not a gun is not dispositive. The victims believed the cigarette lighter was a real gun and a police officer who arrived at the scene saw defendant "striking" one of the victims with a handgun. This evidence was sufficient for a reasonable jury to convict defendant of first-degree robbery beyond a reasonable doubt. See N.J.S.A. 2C:11-1c (a deadly weapon is any instrument used in a manner that "would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury"); N.J.S.A. 2C:15-1b (robbery is a crime of the first degree if in the course of the robbery the actor "threatens the immediate use of a deadly weapon").
One of the jury's notes to the judge during deliberations inquired whether the jury had to agree on all five counts. The note did not indicate or suggest that the jury was deadlocked. Thus, the judge's response that the jury had to agree on all five counts was appropriate and non-coercive.
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