                            NOT FOR PUBLICATION WITHOUT THE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-5610-16T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

JAMES D. JOHNSON,

     Defendant-Appellant.
_________________________________

                Submitted September 13, 2018 – Decided September 20, 2018

                Before Judges Fisher and Suter.

                On appeal from Superior Court of New Jersey, Law
                Division, Essex County, Indictment No. 10-03-0660.

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

                Theodore Stephens, II, Acting Essex County
                Prosecutor, attorney for respondent (Stephen A.
                Pogany, Special Deputy Attorney General/Acting
                Assistant Prosecutor, on the brief).

PER CURIAM
        In Irvington, late in a June evening in 2009, defendant fatally shot

thirteen-year-old Justin Grisham in the back of the neck because he mistakenly

believed Justin was Farad Williams, with whom he had fought earlier in the day.

After a failed motion to suppress statements he made to police, the jury

convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a), and other

offenses, based on evidence adduced over the course of a seven-day trial. The

judge imposed a thirty-year prison term, with a thirty-year period of parole

ineligibility, on the first-degree murder conviction and a consecutive three-year

term on defendant's third-degree terroristic-threat conviction, N.J.S.A. 2C:12-

3(a).

        Defendant appealed, arguing the judge erred in charging the jury and in

admitting certain hearsay statements and other bad-act evidence; he also

asserted that the prosecutor misrepresented the facts in his summation and

mischaracterized defendant's recorded statement as a confession. We rejected

these arguments and affirmed. State v. Johnson, No. A-4257-12 (App. Div. Apr.

17, 2015), and the Supreme Court denied defendant's petition for certification,

222 N.J. 311 (2015).

        Within a few months of the direct appeal's disposition, defendant filed in

the trial court a post-conviction relief (PCR) petition, arguing he was denied the


                                                                          A-5610-16T4
                                         2
effective assistance of counsel. He claimed that "despite [his] deep desire to

testify at trial and profess his innocence," trial counsel "told [him] not to"

because, in referring to the statement defendant gave to police, he had "said too

much already." He also argued trial counsel was ineffective in her cross-

examination of some witnesses and her failure to call another. The PCR judge

denied relief for the reasons expressed in a written opinion.

      Defendant appeals, arguing the judge "erred in denying [his PCR petition]

without affording him an evidentiary hearing to fully address his contention that

he failed to receive adequate legal representation at the trial level" in the

following three ways:

            I.   TRIAL COUNSEL DID NOT ADEQUATELY
            REPRESENT THE DEFENDANT ARISING OUT OF
            HER FAILURE TO THOROUGHLY DISCUSS WITH
            HER CLIENT ALL RELEVANT RAMIFICATIONS
            ASSOCIATED WITH THE DECISION WHETHER
            OR NOT TO TESTIFY, AS A RESULT OF WHICH
            HE DID NOT TESTIFY IN HIS OWN DEFENSE.

            II. THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTATION FROM
            TRIAL COUNSEL AS A RESULT OF COUNSEL'S
            FAILURE TO CALL JESSE SANDERS AS A
            DEFENSE WITNESS AT TRIAL.

            III. THE DEFENDANT DID NOT RECEIVE
            ADEQUATE LEGAL REPRESENTAION FROM
            TRIAL COUNSEL AS A RESULT OF TRIAL
            COUNSEL'S FAILURE TO ADEQUATELY CROSS-

                                                                         A-5610-16T4
                                        3
            EXAMINE TWO CRITICAL STATE'S WITNESSES
            BASED   UPON   INFORMATION    COUNSEL
            LEARNED AT A MATERIAL WITNESS HEARING.

We find insufficient merit in defendant's arguments to warrant further discussion

in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set

forth by Judge John I. Gizzo in his written opinion.

      In a nutshell, the judge recognized that the trial attorney's assistance was

not ineffective because her advice was either adequate or based on a reasonable

tactical decision within the meaning of the Strickland/Fritz test.1 The judge

determined that the advice that defendant not testify was sound in light of the

cross-examination he would have faced because of the damaging statements he

made to police.2 He also concluded that the decision not to call Sanders was

reasonable because Sanders' statements to police revealed he could provide few



1
  Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42
(1987).
2
 In his statement to police, defendant appeared to exclaim, in reference to the
victim, "That's the guy that I killed?" The prosecutor argued this in his
summation and in ruling on the direct appeal – and the propriety of the
prosecutor's summation – we noted that we had "also examined the recording
and confirmed that the prosecution's version was not just reasonable but likely
more accurate than what defendant argues." Johnson, slip op. at 13 n.5 (the
defense had argued that defendant said "That's the guy that got killed"). This
would have presented fertile ground for the prosecution's cross-examination of
defendant and strongly suggested the soundness of the trial attorney's advice that
defendant not testify.
                                                                           A-5610-16T4
                                        4
specifics as to when and where he was with defendant on the evening of the

shooting in the face of other more specific evidence, including video evidence,

that placed defendant at or in the immediate vicinity of the crime. And we see

no merit in defendant's last point, in which he argues that trial counsel

ineffectively cross-examined Farad Williams and Sharkeez Williams. Neither

was an eyewitness to the murder; they instead testified about the earlier fight –

the likely motivation for the killing – as well as the circumstances surrounding

the terroristic-threat charge. Defendant argues only that trial counsel should

have explored with them their reticence about cooperating or testifying. In

reviewing the trial transcript, we agree that those witnesses were thoroughly

cross-examined and that it isn't likely that further inquiry into their apparent

unwillingness to cooperate would have benefitted the defense.

      Affirmed.




                                                                         A-5610-16T4
                                       5
