                                NOT FOR PUBLICATION WITHOUT THE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 limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2686-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

QUAHEEM JOHNSON, a/k/a
DANTE JOHNSON, DEREK
SMITH, DONTAE JOHNSON,
and SCOOBY,

     Defendant-Appellant.
____________________________

                   Submitted April 20, 2020 – Decided July 10, 2020

                   Before Judges Rothstadt and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 08-08-1494.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Mark Zavotsky, Designated Counsel, on the
                   brief).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Erin M. Campbell, Assistant Prosecutor,
                   on the brief).
PER CURIAM

      Following his indictment on one count of first-degree murder –

purposely/knowingly, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); one count of

first-degree felony murder – commission of crime, N.J.S.A. 2C:11-3(a)(3)

(count two); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three

and six); three counts of second-degree unlawful possession of weapon –

handgun, N.J.S.A. 2C:39-5(b) (counts four, seven and eleven); three counts of

second-degree possession of weapon for unlawful purpose – firearms, N.J.S.A.

2C:39-4(a) (counts five, eight and twelve); one count of fourth-degree

aggravated assault with firearm, N.J.S.A. 2C:12-1(b)(4) (count nine); and one

count of third-degree resisting arrest – purposely, N.J.S.A. 2C:29-2(a) (count

ten), a jury found defendant Quaheem Johnson guilty of first-degree aggravated

manslaughter on count one, as a lesser included offense of first-degree murder;

second-degree robbery on count three, as a lesser included offense of first-

degree robbery; and on counts four, six, eight and ten.1 The trial judge granted

defendant's motion to bar a retrial on counts two, five, nine and twelve on which




1
  We refer to the counts as they were originally numbered in the indictment, and
as utilized in the judgment of conviction.


                                                                         A-2686-18T1
                                       2
the jury was deadlocked.2 We affirmed his conviction on direct appeal. State

v. Johnson, No. A-1368-14 (App. Div. July 18, 2017). The Supreme Court

denied defendant's petition for certification. State v. Johnson, 232 N.J. 100

(2018).

      Defendant appeals from the order denying his subsequent petition for

post-conviction relief (PCR) without an evidentiary hearing, arguing:

            POINT I

            DEFENDANT'S PETITION FOR [PCR] SHOULD
            NOT BE BARRED BECAUSE THE CLAIM THAT
            COUNSEL WAS INEFFECTIVE FOR FAILING TO
            FILE AN INTERLOCUTORY APPEAL ON DENIAL
            OF HIS MOTION TO RECUSE THE JUDGE
            INVOLVED INACTION WHICH WAS NOT PART
            OF THE RECORD FOR APPELLATE REVIEW.

            POINT II

            DEFENDANT      WAS    DENIED    EFFECTIVE
            ASSISTANCE OF TRIAL COUNSEL ENTITLING
            HIM TO [PCR], OR AN EVIDENTIARY HEARING,
            ON THE ISSUES OF FAILURE TO EMPLOY AN
            EXPERT TO TESTIFY ON IDENTIFICATION,
            FAILURE TO CONSULT A BALLISTICS EXPERT,
            FAILURE TO FILE A MOTION FOR A CHANGE OF
            VENUE,   AND     FAILURE   TO   FILE   AN
            INTERLOCUTORY APPEAL ON DENIAL OF
            DEFENDANT'S MOTION TO RECUSE THE JUDGE.


2
  We granted leave to appeal and affirmed the trial judge's ruling. State v.
Johnson, 436 N.J. Super. 406, 426 (App. Div. 2014).
                                                                        A-2686-18T1
                                      3
(A) APPLICABLE LAW.

(B) COUNSEL     WAS  INEFFECTIVE FOR
   FAILING TO EMPLOY THE EXPERT IN
   IDENTIFICATION USED IN DEFENDANT'S
   FIRST TRIAL.

(C) COUNSEL     WAS    INEFFECTIVE FOR
   FAILING TO INVESTIGATE AND CONSULT A
   BALLISTICS EXPERT.

(D) COUNSEL    WAS   INEFFECTIVE FOR
   FAILING [TO] FILE A MOTION FOR A
   CHANGE OF VENUE.

(E) COUNSEL WAS INEFFECTIVE FOR FAILING
   TO FILE AN APPEAL ON THE DENIAL OF HER
   MOTION TO RECUSE THE TRIAL JUDGE
   FROM PRESIDING OVER DEFENDANT'S
   CASE.

POINT III

DEFENDANT    WAS     DENIED   EFFECTIVE
ASSISTANCE   OF    APPELLATE    COUNSEL
ENTITLING HIM TO [PCR] OR A NEW APPEAL
FOR FAILURE OF COUNSEL TO ARGUE THE
INCLUSION   OF   THE    LESSER-INCLUDED
OFFENSE OF MANSLAUGHTER TO THE JURY,
AND FAILURE TO CHALLENGE THE STATE'S
WITNESSES'    TESTIMONY      REGARDING
DEFENDANT'S TEARDROP TATTOO.

(A) APPLICABLE LAW.

(B) APPELLATE COUNSEL WAS INEFFECTIVE
    FOR FAILING TO APPEAL THE [JUDGE'S]
    INCLUSION OF MANSLAUGHTER AS A

                                            A-2686-18T1
                      4
                LESSER-INCLUDED OFFENSE                 TO     THE
                CHARGE OF MURDER.

            (C) APPELLATE COUNSEL WAS INEFFECTIVE
                FOR FAILING TO APPEAL THE STATE'S
                REDIRECT EXAMINATION OF . . .
                DEFENDANT REGARDING HIS TEARDROP
                TATTOO.

      Absent an evidentiary hearing, we review both the factual inferences

drawn by the PCR judge from the record and the judge's legal conclusions de

novo. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). To establish

a PCR 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), first by "showing that counsel made errors so serious that counsel was

not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," Fritz,

105 N.J. at 52 (quoting Strickland, 466 U.S. at 687); then by proving he suffered

prejudice due to counsel's deficient performance, Strickland, 466 U.S. at 687,

691-92. Defendant must show by a "reasonable probability" that the deficient

performance affected the outcome. Fritz, 105 N.J. at 58. Under those standards,

we determine defendant failed to establish that either his trial or appellate

counsel was ineffective. Hence, we affirm.



                                                                         A-2686-18T1
                                       5
                                         I.


      Defendant argues that his trial counsel was ineffective because she failed

to file an interlocutory appeal of the denial of his motion to recuse the initial

trial judge.3 Defendant further contends that "[e]ven if this court was to find

th[is] issue . . . could have been brought in a prior proceeding," it "could not

have been properly adjudicated on direct appeal" because this claim "lies outside

the record[.]"

      We agree with the PCR judge's determination that this claim was

procedurally barred under Rule 3:22-4(a) which bars a defendant from

employing PCR to assert a claim that could have been raised at trial or on direct

appeal. See State v. Nash, 212 N.J. 518, 546 (2013) ("A petitioner is generally

barred from presenting a claim on PCR that could have been raised at trial or on

direct appeal[.]"). The Rule provides:

            Any ground for relief not raised in the proceedings
            resulting in the conviction . . . or in any appeal taken in
            any such proceedings is barred from assertion in a
            proceeding under this rule unless the court on motion
            or at the hearing finds: (1) that the ground for relief not
            previously asserted could not reasonably have been
            raised in any prior proceeding; or (2) that enforcement

3
  After a delay in the trial caused by Superstorm Sandy, see Johnson, 436 N.J.
Super. at 411, trial resumed; another judge presided over the jury deliberations
and took the verdict because the initial judge was unavailable.
                                                                          A-2686-18T1
                                         6
              of the bar to preclude claims, including one for
              ineffective assistance of counsel, would result in
              fundamental injustice; or (3) that denial of relief would
              be contrary to . . . the Constitution of the United States
              or the State of New Jersey.

              [R. 3:22-4(a).]

         Although, as defendant contends, the reason trial counsel did not file an

interlocutory appeal is not apparent from the record, the conduct of the trial

judge that precipitated defendant's motion was. In his merits brief, defendant

avers:


              Defense counsel expressed what she perceived as a
              negative attitude toward her efforts in developing a case
              for her client. Furthermore, she conveyed to the trial
              judge that she felt pressured to proceed. She pointed
              out to the trial [judge] a few examples of bias[,]
              including the lack of opportunity to file a motion for
              judgment of acquittal, and the [judge's] failure to hold
              a jury charge conference. Defendant submits that under
              the circumstances, counsel's failure to file an
              interlocutory appeal was ineffective assistance.

Defendant later concedes in his brief, "the record demonstrated unnecessary

hostility toward the defense by the trial judge." In that the record set forth the




                                                                           A-2686-18T1
                                          7
grounds for defendant's recusal argument, it could have been raised on direct

appeal. As it was not, it is barred.4

      Substantively, defendant's argument lacks merit.         The trial judge's

"negative attitude" was never evident to the jury. The record shows all of the

alleged "hostility" took place outside of the jury's presence. Thus, defendant did

not establish the second Strickland-Fritz prong because no prejudice befell

defendant. Even defendant admits in his merits brief, "[i]t is unclear what effect

the repeated comments by the assistant prosecutor and the [judge] had on the

jury's perception of the defense's credibility." 5

       Moreover, we agree with the PCR judge "that the trial judge's occasional

frustration with defense counsel [did] not amount to hostility toward

[defendant], or bias in favor of the prosecution, sufficient to justify recusal."

Indeed, the record belies any acrimony between trial counsel and the judge. In

a wide-ranging colloquy outside the jury's presence, this exchange exemplifies

their relationship and explains why defendant's argument is meritless:

             THE COURT: It may be your first trial, okay, but you
             have appeared in front of me countless times. You have

4
  Defendant does not argue appellate counsel was ineffective for failing to raise
this issue.
5
  The prosecutor's comments are not in issue on appeal. Even so, any argument
about them should have been raised on direct appeal. See R. 3:22-4(a).
                                                                          A-2686-18T1
                                          8
             provided written summations of law which are, on a
             scale of [one] to [ten], a [twelve]. You know what
             you're doing, okay?

             [TRIAL COUNSEL]: I do, Judge.

             THE COURT: The mere fact that this is your first
             physical presence --

             [TRIAL COUNSEL]: And you've been very fair.

             THE COURT: -- in this courtroom --

             [TRIAL COUNSEL]: Yeah. I want to say that, too.
             Let me be very clear for Your Honor's sake. Day one
             of this trial I turned to my client and I told him, you see
             what I said, because I refused to allow him to appeal
             Your Honor's recusal order on that motion. And I did
             that because I knew that Your Honor would give us fair
             rulings, and I think that you have given me a lot of
             latitude, probably because this is my first trial.


When trial counsel told the judge, "I did get you mad, probably for good reason

and for very logical reasons," the judge replied, "I don't get mad. I don't get

mad."     Moreover, the remarks complained of did not express bias against

defendant. There is no evidence the judge's displeasure, at times, with counsel's

actions impacted on any of the judge's rulings. See State v. Leverette, 64 N.J.

569, 571 (1974).

        Contrary to defendant's argument, the trial judge did not foreclose

defendant from making a motion for a judgment of acquittal. He merely required

                                                                           A-2686-18T1
                                         9
the motion be made at a different time because the judge did not want to keep

the jury, who had been waiting in what the judge described as "that

claustrophobic room back there . . . for half an hour," waiting after defense

counsel was tardy in reporting to court. The judge invited the motion to be made

at a later time that did not require additional wait-time by the jury, a decision

well within the judge's discretion under N.J.R.E. 611(a). During the wide-

ranging colloquy to which we just referred, the assistant prosecutor asked trial

counsel if she ever made the motion.          Although some of the record is

unintelligible, it is evident the judge invited the motion to be made while the

jury was deliberating.

      Defendant's contention that the judge failed to hold a charge conference

is mistaken. As the PCR judge noted, both counsel and the trial judge had an

extensive discussion about the jury charge, particularly the identification

instruction, prior to summations, satisfying the mandate of Rule 1:8-7(b).

      And, again, even if recusal was warranted by the trial judge's actions, we

discern no prejudice suffered by defendant. Counsel did not make the motion

after all the evidence was presented, R. 3:18-1, or after the return of the verdict,

R. 3:18-2, to the second trial judge. Nor was or is there any objection to the

judge's instruction. Defendant did not meet the second Strickland-Fritz prong.


                                                                            A-2686-18T1
                                        10
                                               II.

        Defendant contends trial counsel was ineffective for failing to reemploy

an eyewitness identification expert who testified at defendant's first trial.6 The

expert opined the identification by the only witness to identify defendant was:

the product of cross-racial identification and the suggestive show-up at which

defendant was identified; and influenced by the witness's focus on the gun used

by the robber and the brevity—less than one minute—of the robbery. Defendant

argues this "testimony was crucial because it brought into serious question the

witness's identification, given that there was no other corroborating testimony

available," noting the other victim of the robbery identified another man despite

the inclusion of defendant's photograph in the array she viewed.

        Of course, the factors analyzed by the expert are some of the same factors

our Supreme Court deemed essential to a jury's consideration of eyewitness

testimony. State v. Henderson, 208 N.J. 208, 302 (2011). Henderson, however,

was decided between the end of defendant's first trial and the beginning of the

second trial.

        The trial judge adhered to Henderson, and gave a thorough and complete

charge regarding eyewitness identification, addressing all factors defendant


6
    Defendant's first trial ended in a mistrial.
                                                                          A-2686-18T1
                                          11
claims to which the expert could have testified, including:               cross-racial

identification, weapon focus, duration of the event, and the suggestive nature of

the show-up. Expert testimony was not required, therefore, to bring these issues

to the jury. As our Supreme Court recognized, although expert testimony will,

in some cases, aid a jury,

            [w]e anticipate . . . that with enhanced jury instructions,
            there will be less need for expert testimony. Jury
            charges offer a number of advantages: they are focused
            and concise, authoritative (in that juries hear them from
            the trial judge, not a witness called by one side), and
            cost-free; they avoid possible confusion to jurors
            created by dueling experts; and they eliminate the risk
            of an expert invading the jury's role or opining on an
            eyewitness' credibility.

            [Id. at 298.]

      We further note, trial counsel effectively cross-examined the eyewitness

regarding the aspects of the identification to which the expert had testified. She

told the jurors in summation that "as a matter of law you need to consider how

identification procedures were conducted. And that's why in painstaking detail

I belabored the State's witnesses" about the eyewitness's identification.

Additionally, she referenced the "very lengthy instruction from [the trial judge]

about those identification procedures," in delineating the reasons why the

eyewitness's identification was flawed:


                                                                              A-2686-18T1
                                       12
            Think about the jury instruction in relation, okay, to
            what the judge is going to instruct you about. He's
            going to give you a lot of other things to consider about
            eyewitness identification still. He's going to tell you
            that it must be scrutinized carefully. Please do it. He's
            going to tell you human memory is not foolproof.
            Please . . . recognize that. Recognize all of the things
            that the judge is going to ask you to recognize. He's
            going to ask you to think about the witnesses'
            opportunity to view the perpetrator and the degree of
            attention, stress, weapon focus, competence and
            accuracy. I asked [a detective] whether anyone asked
            [the victim who identified defendant] how sure he was,
            okay, because we heard about how sure [the victim who
            did not identify defendant] was, okay, because [another
            detective] did her job and said how sure are you.
            Hundred percent, [the victim who did not identify
            defendant] said. There's nothing to show how sure [the
            victim who identified defendant] was.

      A trial counsel's "decision concerning which witnesses to call to the stand

is 'an art,' and a [judge's] review of such a decision should be 'highly

deferential.'" State v. Arthur, 184 N.J. 307, 321 (2005) (quoting Strickland, 466

U.S. at 689, 693). The Court, synopsizing the familiar standards, cautioned that

we

            "must avoid viewing the performance under the
            'distorting effects of hindsight.'" State v. Norman, 151
            N.J. 5, 37 (1997). Because of the inherent difficulties
            in evaluating a defense counsel's tactical decisions from
            his or her perspective during trial, "a court must indulge
            a strong presumption that counsel's conduct falls within
            the wide range of reasonable professional assistance;
            that is, the defendant must overcome the presumption

                                                                         A-2686-18T1
                                       13
             that, under the circumstances, the challenged action
             'might be considered sound trial strategy.'" Strickland,
             466 U.S. at 689.

                   In determining whether defense counsel's alleged
             deficient performance prejudiced the defense, "[i]t is
             not enough for the defendant to show that the errors had
             some conceivable effect on the outcome of the
             proceedings." Id. at 693. Rather, defendant bears the
             burden of showing that "there is 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.

             [Id. at 319 (alteration in original).]

      According the presumption that counsel's conduct fell within the range of

reasonable professional assistance, ibid., and adhering to the tenet that "an

otherwise valid conviction will not be overturned merely because the defendant

is dissatisfied with his or her counsel's exercise of judgment during the trial,"

State v. Castagna, 187 N.J. 293, 314 (2006), we determine defendant has not

demonstrated trial counsel's failure to call the expert provided a different

outcome. Counsel well-highlighted the factors the expert would have covered,

and the jury charge fully explained how the jury was to consider the evidence .

Moreover, in our prior decision, we reviewed the plethora of evidence against

defendant:



                                                                          A-2686-18T1
                                         14
             According to the State's proofs, on April 8, 2008,
             defendant shot and killed Ramon Francisco Morales
             while in the course of taking his necklace. Shortly
             thereafter, and several blocks away, defendant held
             another victim, [who later identified defendant], at
             gunpoint and took his chain as well. Police responded
             to the scene and, after ten to fifteen minutes, spotted
             defendant in the general vicinity of the commission of
             the crimes. They commanded defendant to stop, but he
             fled. While being pursued, he pointed a handgun in the
             direction of one of the officers. As a result, the officer
             discharged his weapon twice, but missed defendant.
             The officer eventually apprehended defendant, and
             both victims' necklaces were found on his person. The
             police also recovered a gun in a nearby yard, and
             ballistics tests later confirmed that it was the murder
             weapon.

             [Johnson, 436 N.J. Super. at 410-11.]


Thus, defendant failed to show that the expert, if called, would have changed

the verdict. Trial counsel's decision not to call the expert was not ineffective.

                                        III.

      We also see no merit in defendant's argument that trial counsel was

ineffective for failing to investigate and consult a ballistics expert to counter the

State's firearms and toolmark identification expert's testimony that the bullets

recovered from the murder victim's body matched the gun the State claimed

defendant discarded.



                                                                             A-2686-18T1
                                        15
      When, as in this case, a defendant claims that his or her trial attorney

"inadequately investigated his case, he must assert the facts that an investigation

would have revealed, supported by affidavits or certifications based upon the

personal knowledge of the affiant or the person making the certification." State

v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). "[B]ald assertions"

of deficient performance are insufficient to support a PCR application. Ibid.;

see also State v. Porter, 216 N.J. 343, 356-57 (2013) (reaffirming these

principles in evaluating which of a defendant's various PCR claims warranted

an evidentiary hearing). In other words, a defendant must identify what the

investigation would have revealed and demonstrate the way the evidence

probably would have changed the result. Fritz, 105 N.J. at 64-65.

      Defendant has not proffered a report, affidavit or certification from any

expert that would have countered the State's evidence. He has failed to establish

the second prong of that test with regard to his arguments; that is, he has not

demonstrated a "reasonable probability" that counsel's purported deficient

performance affected the outcome. See id. at 58.

      Additionally, under the same lens we described in analyzing defendant's

argument regarding the identification expert, we discern nothing that established

the outcome of the trial would have been different if an opposing expert was


                                                                           A-2686-18T1
                                       16
called, or that overcomes the presumption that counsel's performance was

adequate. As the PCR judge observed, "[t]rial counsel engaged in a lengthy voir

dire, during which she asked [the expert] many questions concerning both his

methodology and his qualifications to testify," and objected to his testimony.

The trial judge observed trial counsel "went at length" in her voir dire of the

expert—some twenty minutes. Any challenge to the trial judge's admission of

the expert's testimony is barred here under Rule 3:22-4(a).

                                        IV.

      We reject defendant's argument that trial counsel was ineffective for

failing to move for a change of venue for the same reasons the PCR judge set

forth in her written decision. The PCR judge's careful analysis of the impact of

pretrial publicity and one juror's refusal to return for service justified her

findings that the presumption of prejudice was not warranted, and there was no

actual prejudice. See State v. Biegenwald, 106 N.J. 13, 32-33 (1987). There is

no evidence any of the jurors were influenced by the media or by any other

outside influences. Defendant has failed to identify any juror who should have

been excused because of an inability to be fair or impartial, or establish that the

jury voir dire did not result in an impartial jury.




                                                                           A-2686-18T1
                                        17
      We also observe the jurors were instructed not to read any articles related

to the trial and not to otherwise discuss the trial. The trial judge warned the

jurors:


                  Your deliberation should be based on the
            evidence in the case without any outside influence or
            opinion of relatives or friends. Additionally, I must
            instruct you not to read any newspaper articles
            pertaining to this case. More likely than not there's
            going to be newspaper cover of this case. Okay? It's
            probably going to happen. But you're instructed to
            completely avoid reading or listening to any newspaper
            or media accounts, or listening to anyone else discuss
            them or talk about them.


The jury is presumed to have followed that instruction. See State v. Loftin, 146

N.J. 295, 390 (1996) ("That the jury will follow the instructions given is

presumed.").

                                       V.

      Turning to defendant's two claims of ineffective assistance of appellate

counsel, we use the same Strickland-Fritz two-prong test that applies to

ineffective assistance of trial counsel claims. State v. Harris, 181 N.J. 391, 518

(2004).

      Defendant first argues appellate counsel should have argued the trial judge

erred by including manslaughter as a lesser included offense of murder because

                                                                          A-2686-18T1
                                       18
"the evidence presented by the State could only have been used to establish he

acted purposefully."

      "[A] trial [judge] has an independent obligation to instruct on lesser-

included charges when the facts adduced at trial clearly indicate that a jury could

convict on the lesser while acquitting on the greater offense." State v. Jenkins,

178 N.J. 347, 361 (2004). "If neither party requests a charge on a lesser-

included offense, the [judge] must sua sponte provide an instruction 'when the

facts adduced at trial clearly indicate that a jury could convict on the lesser while

acquitting on the greater offense.'" State v. Maloney, 216 N.J. 91, 107 (2013)

(quoting State v. Thomas, 187 N.J. 119, 132 (2006)).

      No one witnessed the actual shooting. A witness who saw the aftermath

testified the victim was apparently alive after he was shot; the witness saw him

rolling on the ground as the shooter walked away. The State alleged the shooting

occurred during a robbery. Considering that no single shot killed the victim,

which would be more indicative of a purposeful or knowing murder, the trial

judge made an observation that could have very well have been made by the

jury: "Who knows why the gun went off, who knows why -- it could have been

a number of reasons, okay and . . . the case law is pretty clear that I have to give

lesser includeds and I'm giving them lesser includeds."


                                                                             A-2686-18T1
                                        19
      The trial judge simply followed the mandate of our Supreme Court:

"[W]here the facts on record would justify a conviction of a certain charge, the

people of this State are entitled to have that charge rendered to the jury[.]" State

v. Garron, 177 N.J. 147, 180 (2003) (quoting State v. Powell, 84 N.J. 305, 319

(1980)).   Tellingly, the jury found defendant guilty of the lesser-included

offense of aggravated manslaughter.

      That verdict obviated any prejudicial impact the inclusion of the

manslaughter instruction may have had. As we recognized in our prior opinion,

the initial trial judge instructed "the jury that they were to consider reckless

manslaughter only if they were not convinced that defendant committed

aggravated manslaughter." Johnson, 436 N.J. Super. at 413. Although the

second trial judge told the jury it could consider the separate counts in the

indictment "in any order" it wished, id. at 414, 419-20, the judge

            did not respond specifically to the jury question relative
            to the order in which greater and lesser included
            offenses must be considered, although the first trial
            judge did so in [the judge's] instructions to the jury and
            in [the] verdict form. The second trial judge gave a
            response as it relates to separate counts in the
            indictment.

             [Id. at 419 (alterations in original).]




                                                                            A-2686-18T1
                                        20
The jury, therefore, never considered the manslaughter charge that sequentially

followed the aggravated manslaughter charge as a lesser-included offense in the

same count. Defendant was not prejudiced by the inclusion of the manslaughter

offense.

      Defendant's final argument avers appellate counsel was ineffective for

failing to challenge that portion of the redirect examination of the arresting

officer, when the assistant prosecutor asked him "to step off the stand, approach

. . . defendant, and identify if there were any teardrop tattoos on the side of his

face." Defendant claims the redirect examination exceeded the scope of cross-

examination, and "the issue of tattoos, especially teardrop tattoos, was highly

prejudicial and was offered for the express purpose to demonstrate to the jury

defendant was a bad person, and not for reasons of identification," because "[i]t

is well-known that teardrop tattoos may signify gang membership and is an

indication of prior bad acts including murder."

      The first question the assistant prosecutor asked on redirect examination

was if the officer noticed "anything about [defendant's] face, whether there were

any tattoos or anything of that nature," when the officer apprehended him. The

officer replied he did not know. Following trial counsel's sidebar objection that

the question was outside the scope of his cross-examination because he "never


                                                                           A-2686-18T1
                                       21
asked [the officer] about that," 7 the assistant prosecutor asked the officer to

"come off the stand" to look at defendant, asking, "[d]o you see . . . what

appear[s] to be teardrop markings on either side of [defendant's] face?" The

officer replied affirmatively. When asked if he "saw that on his face" on the

date of defendant's arrest, he said he could not recall.

      During colloquy with the judge on the next trial date, trial counsel agreed

she had brought up the tattoos, and asked "the jury [during the trial] to look at

[defendant] . . . [w]ith respect to what the probative value of his having tattoos

almost everywhere on his person is in this case, an identification case, to say the

very least, since moment one." Trial counsel said "the probative value of asking

a jury to look at the fact that he has tattoos almost all over his body is certainly

- - it's relevant[.]" Trial counsel agreed with the judge's observation that counsel

"kept bring[ing] tattoos up."

      In summation, trial counsel emphasized that no witness "identified a man

who had tattoos." She rhetorically asked, "[y]ou think if I opened on that and




7
   Contrary to defendant's contention in his merits brief that the trial judge
"sustained the objection and allowed [the officer] to approach . . . defendant,"
the record does not reflect any further sidebar colloquy after counsel stated his
objection.
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                                        22
there was evidence that my client didn't have tattoos on the night in question the

State would introduce that?"

      Trial counsel's concern was the prejudicial impact of highlighting the

teardrop tattoos. The judge prepared a limiting instruction, which trial counsel

accepted.

      While we look askance at the prosecution's focused question on

defendant's teardrop tattoos, the trial judge limited the jury's use of that

testimony to the issue of identification and forbade the jury from drawing any

inference from the tattoos other than that limited purpose:

                  Furthermore, there has been testimony regarding
            defendant['s] . . . tattoos on his face. An officer was
            asked to step down . . . and look at [defendant's] face.

                  This question became admissible because [trial
            counsel] inquired of the witnesses whether any
            descriptions of the perpetrator's face included the
            tattoos.

                  The mere fact that a person or this defendant for
            that matter has tattoos . . . or body art for that matter
            should not cause you to drawn any inference
            whatsoever about that person.

                  First of all, there's no evidence before you as to
            whether -- as to the date when [defendant] had the
            tattoo done. Secondly, tattoos or body art, whatever
            you want to call it are very commonplace, particularly
            in today's younger generation, not necessarily mine, but
            the younger generation.

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                                       23
                   My generation, perhaps some of you my age and
            older may have associated tattoos in the past with
            sailor[s] like I said before or bad guys in movies. This
            is 2012 and that's a completely and utterly ridiculous
            association today.

                   Societies today and younger generation, body art
            just are very, very commonplace, so particularly again
            in -- youth and therefore absolutely no inference should
            be drawn, discussed or deliberated by you relative to
            [defendant's] body art, okay, other than in the context
            of identification.

      Not only is the jury presumed to have followed that instruction, trial

counsel in summation stated, "[t]he judge is going to give you an instruction, an

instruction that he already gave you after [the arresting officer] was traipsed

down from the witness stand. Listen to that instruction. That's all I'm going to

say." She nonetheless continued,

            [t]he judge is going to ask you not to infer anything
            nefarious based upon any tattoos, whether or not [the
            assistant prosecutor] traipsed [the arresting officer]
            over to talk about teardrop tattoos in particular. The
            judge is going to . . . give you an instruction regarding
            the tattoos. Listen to it.

      Any prejudice engendered by the brief, improvident question by the

assistant prosecutor was ameliorated by the instruction. As the PCR judge

observed, "regardless of which party opened the door to the evidence of [the



                                                                         A-2686-18T1
                                      24
facial] tattoos, such evidence was considered only for the purposes of

identification."

      Appellate counsel was not ineffective for failing to raise those issues,

neither of which had merit.

                                      VI.

      We conclude defendant has failed to establish a prima facie case

warranting an evidentiary hearing. "[I]n order to establish a prima facie claim,

a petitioner must do more than make bald assertions that he was denied the

effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170

(App. Div. 1999). "To establish such a prima facie case, the defendant must

demonstrate a reasonable likelihood that his or her claim will ultimately succeed

on the merits." State v. Marshall, 148 N.J. 89, 158 (1997). Defendant failed to

meet that threshold. See State v. Preciose, 129 N.J. 451, 462-63 (1992); R. 3:22-

10(b). As such, an evidentiary hearing was properly denied.

      To the extent not addressed here, defendant's remaining arguments lack

sufficient merit to warrant discussion. R. 2:11-3(e)(2).

      Affirmed.




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