STATE OF NEW JERSEY VS. DERRICK JOHNSON (06-08-1865 AND 06-09-2078,…

                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is l imited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0702-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DERRICK JOHNSON, a/k/a
ALLEN JOHNSON, ALLAN
JOHNSON, DEMETRIUS
JOHNSON, ZAHIR JOHNSON,
DERECK JOHNSON, DICK
JOHNSON, ABDULLAH
JOHNSON, MARK SUITTON,
MARK SUTTON, and ALLAN
ZAHARABDULLAH,

     Defendant-Appellant.
___________________________

                    Submitted October 13, 2020 – Decided October 23, 2020

                    Before Judges Fasciale and Rothstadt.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment Nos. 06-08-1865
                    and 06-09-2078.
            Joseph E. Krakora, Public Defender, attorney for
            appellant (Craig S. Leeds, Designated Counsel, on the
            brief).

            Damon G. Tyner, Atlantic County Prosecutor, attorney
            for respondent (Melinda A. Harrigan, Assistant
            Prosecutor, of counsel and on the brief).

            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant appeals from an April 9, 2018 order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing.        Defendant

contends the PCR judge erred by denying his motion for a witness's mental

health records and that his trial counsel, appellate counsel, and PCR counsel

rendered ineffective assistance. Judge Patricia M. Wild thoroughly considered

defendant's contentions and rendered a comprehensive decision with which we

substantially agree.

      Defendant and two others robbed a T.G.I. Fridays. A jury convicted him

of first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:15-1; five counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of

second-degree burglary, N.J.S.A. 2C:18-2; five counts of third-degree criminal

restraint, N.J.S.A. 2C:13-2; five counts of fourth-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(4); three counts of second-degree possession of a firearm


                                                                      A-0702-18T4
                                       2
for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of third-degree

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and two counts of

second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. The trial

judge sentenced him to an aggregate seventy years' incarceration subject to the

No Early Release Act, N.J.S.A. 2C:43-7.2.

      We affirmed defendant's convictions. State v. Johnson, No. A-4627-08

(App. Div. Jan. 7, 2013). We remanded, however, directing the trial judge to

merge defendant's conspiracy conviction into his robbery conviction. Johnson,

slip op. at 19. The New Jersey Supreme Court denied defendant's petition for

certification. State v. Johnson, 

214 N.J. 118

(2013). He then filed this PCR

petition.

      On appeal, defendant argues:

            POINT I

            THE [PCR JUDGE] ERRED IN DENYING . . .
            DEFENDANT'S MOTION FOR ACCESS TO [A]
            WITNESS['S] . . . MENTAL HEALTH RECORDS.

            POINT II

            DEFENDANT WAS DENIED THE EFFECTIVE
            ASSISTANCE    OF      TRIAL    COUNSEL       IN
            VIOLATION OF THE UNITED STATES AND NEW
            JERSEY  CONSTITUTIONS[,]       U.S.     CONST.,
            AMENDS. VI, XIV[;] N.J. CONST. ART. I., PAR. 10.


                                                                       A-0702-18T4
                                      3
A. Trial Counsel Provided Ineffective Assistance Of
   Counsel By Failing To Provide Discovery To . . .
   Defendant.

B. Trial Counsel Provided Ineffective Assistance Of
   Counsel By Failing To Adequately Investigate And
   Interview Witnesses.

C. Trial Counsel's Failure To File A Motion In Limine
   Barring [A] Witness . . . From Testifying That He
   Feared [Defendant] Was Planning On Killing Him
   Constituted Ineffective Assistance Of Counsel.

D. Trial Counsel Was Ineffective For Failing To Argue
   That The [State] Violated The Discovery Rule For
   Failing To Provide A Full And Complete Copy Of
   The Affidavit In Support Of Probable Cause In
   Support Of The Issuance Of The Arrest Warrant For
   Defendant.

E. Trial Counsel Was Ineffective For Failing To Argue
   That Law Enforcement Officers Failed To Provide
   The Prosecutor's Office With A Copy Of The
   Detailed Affidavit In Support Of Probable Cause
   For . . . [Defendant's] Arrest As Mandated Pursuant
   To R[ule] 3:2-1(b).

F. Trial Counsel Was Ineffective By Failing To Argue
   That Defendant's Arrest Was Illegal Thus Rendering
   All Evidence Gathered As A Result Of That Illegal
   Arrest Inadmissible.

G. Trial Counsel's Ineffective Representation During
   The Pre-Trial Proceedings Impacted . . . The Plea
   Process Causing [Defendant] Substantial Prejudice.

H. [Defendant's] Pro Se Submissions Set Forth
   Numerous Allegations Regarding Ineffective

                                                         A-0702-18T4
                          4
              Assistance Of Trial Counsel Which Were Not
              Addressed By The [PCR Judge] Thereby Requiring
              A Remand On Those Issues.

           POINT III

           THE CUMULATIVE EFFECT OF THE ERRORS
           COMPLAINED OF RENDERED THE TRIAL
           UNFAIR.

           POINT IV

           DEFENDANT WAS DENIED THE EFFECTIVE
           ASSISTANCE OF APPELLATE COUNSEL[.]

           POINT V

           DEFENDANT WAS DENIED THE EFFECTIVE
           ASSISTANCE OF PCR COUNSEL[.]

           POINT VI

           THE [PCR JUDGE] ERRED IN DENYING
           [DEFENDANT'S PCR] WITHOUT AFFORDING
           HIM AN EVIDENTIARY HEARING.

     In his pro se brief, defendant raises the following points, which have been

summarized and renumbered:

           POINT [VII]

           [IN HER DECISION, THE PCR JUDGE
           MENTIONED POINTS THAT HAD NOTHING TO
           DO WITH THIS CASE SO HER DECISION MUST
           BE VACATED BECAUSE HER ACTIONS
           VIOLATED THE MODEL CODE OF JUDICIAL
           CONDUCT (8)(C)(1).]

                                                                        A-0702-18T4
                                      5
POINT [VIII]

[DEFENDANT'S LEGAL RIGHT TO BE AT HIS PCR
HEARING WAS VIOLATED AND THE PCR JUDGE
VIOLATED RULE 3:22-10. THE JUDGE ALSO
VIOLATED THE MODEL CODE OF JUDICIAL
CONDUCT (B)(5), (B)(7), (B)(8), (C)(2), (E)(1) AND
(E)(1)(A).]

POINT [IX]

[D]EFENDANT ASSERTS THAT THERE IS (NO
WAY) THE [PCR] JUDGE COULD HAVE VIEWED
ALL OF DEFENDANT'S (545) EXHIBITS AND
STILL DENIED [DEFENDANT'S] APPLICATION
FOR [PCR] OR AN EVIDENTIARY HEARING.
[THE PCR JUDGE] VIOLATED THE CODE OF
JUDICIAL CONDUCT CANON I, CANON 2A,
[AND] CANON 3 (A-1)(B-1).

POINT [X]

[D]EFENDANT WANTS HIS GRAND JURY ISSUE
HE SUBMITTED FULLY ADDRESSED; [A]
DETECTIVE . . . LIED TO THE GRAND JURY.
DEFENDANT HAS PROOF WITHIN THE
INDICTMENT ITSELF. HOWEVER [THE PCR
JUDGE] NEVER ADDRESSED THIS ISSUE ALONG
WITH MANY OTHERS, VIOLATING THE CODE
OF JUDICIAL CONDUCT, CANON 3 (A-1)(7)
[AND] (B-1).

POINT [XI]

[TRIAL COUNSEL WAS INEFFECTIVE BECAUSE
DEFENDANT WOULD HAVE TAKEN THE PLEA
DEALS OF EIGHT YEARS OR FIFTEEN YEARS.]

                                                     A-0702-18T4
                        6
             POINT [XII]

             [DEFENDANT]       SUBMITTED     A   BRIEF
             REGARDING . . . HOW [THE TRIAL JUDGE] WAS
             NOT A SUPERIOR COURT JUDGE, BUT WAS IN
             FACT A TAX JUDGE DURING THE TRIAL OF . . .
             DEFENDANT. . . . DEFENDANT SUBMITTED THE
             BRIEF [HIMSELF] MAKING REFERENCE TO
             [THIS ISSUE] SO [THE PCR JUDGE] COULD
             ADDRESS IT, [RULE] 3:22-6(D)[.]

             POINT [XIII]

             [D]EFENDANT SUBMITTED HIS COMPLAINT
             AND WARRANT ISSUE, DEFENDANT ASSERTS
             THAT [THE PCR JUDGE] COULD NOT HAVE
             PROPERLY VIEWED ALL THE EXHIBITS OR
             GIVEN    THEM    EACH    ITS   PROPER
             CONSIDERATION OR WEIGHT. THUS RUSHING
             TH[ROUGH] OR NOT LOOKING AT ALL [OF]
             DEFENDANT'S MOVING PAPERS[.]

             POINT [XIV]

             THE [P]ROSECUTOR VIOLATED BRADY1 BY
             WITHHOLDING EXCULPATORY EVIDENCE AND
             LYING TO THE JURY.

                                       I.

       Defendant first contends the PCR judge erred by denying his motion to

obtain the witness's mental health records.     He argues he needed such



1
    Brady v. Maryland, 

373 U.S. 83

(1963).
                                                                     A-0702-18T4
                                       7
information to prove trial counsel's ineffectiveness for failing to obtain these

records because the information was pertinent to the witness's credibility and

would have been useful on cross-examination.

      Our court rules do not authorize discovery in PCR proceedings, and the

general discovery obligations do not extend to such proceedings.          State v.

Marshall, 

148 N.J. 89

, 268 (1997). However, a judge has "the inherent power

to order discovery when justice so requires."

Id. at 269

(quoting State ex rel.

W.C., 

85 N.J. 218

, 221 (1981)). We generally review an order denying the

production of discovery for an abuse of discretion. State v. Kane, 449 N.J.

Super. 119, 132 (App. Div. 2017). We see no such abuse here.

      An individual's mental health records are privileged and are protected by

N.J.S.A. 45:14B-28, N.J.R.E. 505 (psychologist-patient privilege), and N.J.R.E.

506 (physician-patient privilege, including psychiatrist-patient privilege).

Kinsella v. Kinsella, 

150 N.J. 276

, 297 (1997). In general, a defendant may

obtain such records by demonstrating: "1) there is a legitimate need to disclose

the protected information; 2) the information is relevant and material to the issue

before the court; and, 3) [the defendant] . . . shows by a 'preponderance of the

evidence' that 'no less intrusive source' for that information exists." State v.




                                                                           A-0702-18T4
                                        8
L.J.P., 

270 N.J. Super. 429

, 440 (App. Div. 1994) (quoting United Jersey Bank

v. Wolosoff, 

196 N.J. Super. 553

, 564 (App. Div. 1984)).

      The PCR judge analyzed these factors and found that defendant failed to

meet factors two and three of the test. She concluded the information was

neither material nor relevant because "[d]efendant never assert[ed] that the

alleged [mental health diagnosis] caused [the witness] to lie." She stated that

even if the witness was on certain medications that were known to cause memory

issues, "these [medications] were prescribed after the trial . . . and thus could

not have affected . . . [the witness's] ability to recall information or events."

Related to the third factor, the PCR judge noted that the witness's competency

was never called into question, nor was there ever a psychiatric evaluation

requested during trial.

                                       II.

      Defendant next argues his trial counsel, appellate counsel, and PCR

counsel rendered ineffective assistance.

      To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-pronged test formulated in Strickland v. Washington, 

466 U.S. 668

, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 

105 N.J. 42

, 58 (1987). To meet the first prong of Strickland/Fritz, a defendant must


                                                                         A-0702-18T4
                                       9
establish that his counsel "made errors so serious that counsel was not

functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."

Strickland, 466 U.S. at 687

. The defendant must rebut the "strong presumption

that counsel's conduct [fell] within the wide range of reasonable professional

assistance[.]"

Id. at 689.

    Thus, we must consider whether counsel's

performance fell below an objective standard of reasonableness.

Id. at 688.

      To satisfy the second prong of Strickland/Fritz, a defendant must show

"that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable."

Id. at 687.

A defendant must establish "a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different.         A reasonable probability is a

probability sufficient to undermine confidence in the outcome."

Id. at 694.

"[I]f

counsel's performance has been so deficient as to create a reasonable probability

that these deficiencies materially contributed to defendant's conviction, the

constitutional right will have been violated." 

Fritz, 105 N.J. at 58

.

      A defendant is only entitled to an evidentiary hearing when he "has

presented a prima facie [case] in support of [PCR]," meaning that a defendant

must demonstrate "a reasonable likelihood that his . . . claim will ultimately




                                                                           A-0702-18T4
                                       10
succeed on the merits." 

Marshall, 148 N.J. at 158

(first alteration in original)

(quoting State v. Preciose, 

129 N.J. 451

, 463 (1992)).

                                        A.

      Defendant claims trial counsel was ineffective by failing to obtain and

review all discovery and to provide defendant a copy of his co-defendant's

statement or review this statement with him. As the PCR judge correctly stated,

defendant cannot establish a prima facie claim under Strickland/Fritz because

the record belies his argument.

      As the PCR judge noted, the record reflects that trial counsel stated twice

that he received all discovery from the State. Further, trial counsel clarified:

            Judge, I received nothing short of a Sears book
            catalogue worth of discovery from the State within the
            last month including witnesses . . . and statements . . .
            that I've actually missed two days of my vacation to go
            into the jail and see my client to review so there
            wouldn't be a continuation of this [matter].

Therefore, the record demonstrates defendant's trial counsel received all

discovery—including his co-defendant's statement—and that trial counsel

reviewed all discovery with defendant.

                                        B.

      Defendant argues trial counsel failed to interview all alibi witnesses,

which would have placed him in New Hampshire at the time of the offense. He

                                                                           A-0702-18T4
                                       11
also maintains that by failing to obtain the witness's health records, trial counsel

did not adequately investigate.

       Generally, an attorney representing a criminal defendant should interview

all alibi witnesses. State v. Pierre, 

223 N.J. 560

, 582 (2015). "Failure to

investigate an alibi defense is a serious deficiency that can result in the reversal

of a conviction." State v. Porter, 

216 N.J. 343

, 353 (2013). Even when trial

counsel presents an alibi, counsel's choice to forego evidence reinforcing a

defendant's alibi is also a serious deficiency that may result in reversal. 

Pierre, 223 N.J. at 582-83

. Defendant has failed to satisfy either of the Strickland/Fritz

prongs as to this contention.

       Defendant argues trial counsel failed to interview four of his alibi

witnesses. Defendant wrote to his first trial counsel, 2 sharing these witnesses'

names—albeit first names only—and their telephone numbers. For two of these

witnesses, defendant listed their address as "Manor Hotel" and "room 121," and

indicated that the phones had been cut off. Defendant did not subsequently

provide his trial counsel with their last names, numbers, or their addresses.

       "[I]n order to establish a prima facie claim, a [defendant] must do more

than make bald assertions that he was denied the effective assistance of counsel."


2
    Defendant obtained new trial counsel by the time trial commenced.
                                                                            A-0702-18T4
                                        12
State v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999). A defendant

must allege specific facts sufficient to support a prima facie claim.

Ibid. The relevant facts

must be shown through "affidavits or certifications based upon the

personal knowledge of the affiant or the person making the certification." Ibid.;

see also R. 3:22-10(c) (providing that any factual assertion serving as predicate

for the claim "must be made by an affidavit or certification"). Defendant

provided no affidavits or certifications as to their proffered testimony.

      As to defendant's argument that trial counsel failed to interview or obtain

the witness's mental health records, the PCR judge correctly noted that the

individual was not a material witness—the State only called the witness to

establish defendant's consciousness of guilt. Furthermore, defendant has failed

to show how trial counsel's use of the mental health records would have resulted

in a different outcome.

                                         C.

      Defendant argues trial counsel was ineffective by failing to file a motion

in limine barring his co-defendant's statement as inadmissible under N.J.R.E.

404(b), and that during trial, counsel failed to object to its admissibility.

      The admission of evidence of "other crimes, wrongs, or acts" is governed

by N.J.R.E. 404(b), which prohibits the admission of such evidence "to prove a


                                                                            A-0702-18T4
                                        13
person's disposition in order to show that . . . the person acted in conformity

with such disposition." The rule provides a non-exhaustive list regarding the

admission of evidence "for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident

when such matters are relevant to a material issue in dispute."

Ibid. Our Supreme Court

provided a rule of "general application" to prevent overuse of

other-crimes evidence:

            1. The evidence of the other crime must be admissible
            as relevant to a material issue;

            2. It must be similar in kind and reasonably close in
            time to the offense charged;

            3. The evidence of the other crime must be clear and
            convincing; and

            4. The probative value of the evidence must not be
            outweighed by its apparent prejudice.

            [State v. Cofield, 

127 N.J. 328

, 338 (1992) (quoting
            Abraham P. Ordover, Balancing The Presumptions Of
            Guilt and Innocence: Rules 404(b), 608(b), And
            609(a), 38 Emory L.J. 135, 160 (1989)).]

      The trial judge held a 404(b) hearing prior to trial and ruled the statements

were admissible under 404(b), not as propensity evidence, but rather as evidence

of defendant's consciousness of guilt. Thus, there was no basis to object during

trial since the trial judge ruled on its admissibility at the pre-trial hearing. And

                                                                            A-0702-18T4
                                        14
the trial judge gave a proper limited instruction, which we presume the jury

followed. State v. Loftin, 

146 N.J. 295

, 390 (1996).

                                       D.

      Defendant argues appellate counsel rendered ineffective assistance on his

direct appeal by failing to raise the issues contained in his PCR.            The

Strickland/Fritz test applies to ineffective assistance of counsel claims relating

to appellate counsel. State v. Gaither, 

396 N.J. Super. 508

, 513 (App. Div.

2007); State v. Morrison, 

215 N.J. Super. 540

, 546 (App. Div. 1987).

      Appellate counsel is not required to present all non-frivolous claims.

Jones v. Barnes, 

463 U.S. 745

, 751 (1983); see also 

Gaither, 396 N.J. Super. at 515

. Appellate counsel may use his or her professional judgment in deciding

whether to bring meritorious claims suggested by the client. 

Jones, 463 U.S. at 751-52

. "A brief that raises every colorable issue runs the risk of burying good

arguments . . . in a verbal mound made up of strong and weak contentions."

Id. at 753.

"For judges to second-guess reasonable professional judgments and

impose on appointed counsel a duty to raise every 'colorable' claim suggested

by a client would disserve the very goal of vigorous and effective advocacy[.]"

Id. at 754.

Here, appellate counsel was not required to submit every single claim

that defendant raised in his PCR petition.


                                                                          A-0702-18T4
                                       15
                                        E.

      Defendant claims his PCR counsel rendered ineffective assistance by

destroying defendant's moving papers, lying about it, and failing to raise issues.

"Generally, an appellate court will not consider issues, even constitutional ones,

which were not raised below." State v. Galicia, 

210 N.J. 364

, 383 (2012).

Nonetheless, the standard for ineffective assistance of counsel claims related to

PCR counsel is that:

            PCR counsel must communicate with the client,
            investigate the claims urged by the client, and
            determine whether there are additional claims that
            should be brought forward. Thereafter, counsel should
            advance all of the legitimate arguments that the record
            will support. If after investigation counsel can
            formulate no fair legal argument in support of a
            particular claim raised by defendant, no argument need
            be made on that point. Stated differently, the brief must
            advance the arguments that can be made in support of
            the petition and include defendant's remaining claims,
            either by listing them or incorporating them by
            reference so that the judge may consider them.

            [State v. Webster, 

187 N.J. 254

, 257 (2006).]

"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR

proceeding." State v. Hicks, 

411 N.J. Super. 370

, 376 (App. Div. 2010)

(citing State v. Rue, 

175 N.J. 1

, 4 (2002)).




                                                                          A-0702-18T4
                                       16
      On this record, defendant provides no evidence showing PCR counsel

destroyed his papers and then lied about it. He also does not specify or bring

forth evidence as to which arguments PCR counsel failed to raise. Defendant's

"bald assertions" are not adequate to support an ineffective assistance of counsel

claim. 

Cummings, 321 N.J. Super. at 170

. Nevertheless, we will not address

defendant's contention that his PCR counsel rendered ineffective assistance,

which is more appropriately left for a new petition.

                                       III.

      Defendant argues that the PCR judge did not address all of his pro se

arguments. Rule 3:22-6(d) states:

            Counsel should advance all of the legitimate arguments
            requested by the defendant that the record will support.
            If defendant insists upon the assertion of any grounds
            for relief that counsel deems to be without merit,
            counsel shall list such claims in the petition or amended
            petition or incorporate them by reference. Pro se briefs
            can also be submitted.

So long as the PCR judge considers all arguments, including those incorporated,

he or she does not need to address every single argument in his or her

decision/opinion. See 

Webster, 187 N.J. at 258

. Here, the PCR judge indicated

that she considered all of defendant's contentions, and we have no reason to

believe otherwise.


                                                                          A-0702-18T4
                                       17
                                      IV.

      Defendant argues that the PCR judge failed to look at all of his exhibits.

He also asserts a detective lied to the grand jury to obtain the indictment and

that the assistant prosecutor knew of this perjury. Additionally, he maintains

the prosecutor violated Brady by lying to the jury and not exchanging

exculpatory evidence with the defense.      These contentions have no merit.

Defendant presents no evidence supporting these arguments and makes only

"bald assertions." 

Cummings, 321 N.J. Super. at 170

.

      We conclude that defendant's remaining arguments—to the extent we

have not addressed them—are without sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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                                      18
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