STATE OF NEW JERSEY VS. DWAYNE S. JOHNSON (13-07-1643, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2295-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWAYNE S. JOHNSON,

Defendant-Appellant.
_________________________

Submitted January 8, 2020 – Decided May 27, 2020

Before Judges Fuentes and Mayer.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 13-07-1643.

Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).

Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant Dwayne S. Johnson appeals from the order of the Criminal Part

denying his petition seeking post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

On July 12, 2013, an Essex County grand jury returned an indictment

against defendant charging him with murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A.

2C:11-3a(2), first degree felony murder, N.J.S.A. 2C:11-3a(3), and first degree

robbery, N.J.S.A. 2C:15-1. Defendant was tried before a petit jury over eight

nonsequential days from October 29, 2014 to November 19, 2014. The jury

found defendant guilty of murder and third degree theft from the person of the

victim, N.J.S.A. 2C:20-2b(2)(d), as a lesser included offense of first degree

robbery.

On January 12, 2015, the trial judge sentenced defendant on the murder

conviction to a fifty-year term of imprisonment with an eighty-five percent

period of parole ineligibility and five years of parole supervision, as mandated

by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed

a consecutive four-year term for third degree theft from the person. This court

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affirmed defendant's conviction and sentence on direct appeal,1 State v. Dwayne

Johnson, No. A-2758-14 (App. Div. May 30, 2017), and the Supreme Court

denied his petition for certification, 231 N.J. 320 (2017).

These are the facts that led the jury to find, beyond a reasonable doubt,

that defendant purposely or knowingly murdered Terrance Everett:

At trial, D.B. testified that at approximately 1:20 p.m.
on January 7, 2013, she and A.M. were sitting in A.M.'s
car, which was parked near an apartment building on
Avon Avenue in Newark. She saw a man, later
identified as Everett, walking in the area. She also saw
defendant, who she knew, exit the building, drop his
jacket, and run up to Everett and strike him. The two
men began fighting, Everett fell to the ground, and
defendant began hitting and kicking him. At that point,
A.M. began recording the fight on his cell phone. D.B.
viewed the cell phone video during her testimony and
confirmed that it showed what she had witnessed. She
also viewed a security camera video and confirmed it
showed Everett walking in the area before the fight.

The seventy-three second cell phone video showed
defendant repeatedly kicking and stomping Everett in
the head as Everett lay face down and motionless on the
ground. Defendant then paused briefly, rifled through
Everett's pockets, resumed kicking and stomping him

1
Defendant was represented by counsel on direct appeal. However, defendant
also filed a supplemental pro se brief in which he raised additional issues,
including ineffective assistance of trial counsel. We declined to review this
claim on direct appeal "because such claims involve allegations and evidence
that lie outside the trial record." Johnson, slip op. at 4 (quoting State v.
Castagna, 187 N.J. 293, 313 (2006)).

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 in the head, and then walked away and entered the
apartment building he had earlier exited.

[Johnson, No. A-2758-14, slip op. at 5-6 (App. Div.
May 30, 2017) (footnote omitted).]

Defendant filed this pro se PCR petition on January 8, 2018 alleging trial

counsel was ineffective because he did not: (1) present a mens rea defense; (2)

challenge the State's evidence before trial; and (3) object to the State's expert

witness. Judge Michael L. Ravin assigned counsel to represent defendant in the

prosecution of this PCR petition. On August 16, 2018, PCR counsel submitted

a supplemental brief attacking the trial court's decision to allow Dr. Leanne

Cronin, the State's assistant medical examiner, performed the autopsy of

Terrence Everett and classified his death as a homicide.

On October 5, 2018, Judge Ravin heard oral argument from counsel. He

denied the petition in an order dated October 10, 2018. Judge Ravin attached to

the order a memorandum of opinion explaining the basis for his ruling.

Notwithstanding the finality of the judge's order, on October 16, 2018, PCR

counsel transmitted to Judge Ravin a supplemental pro se letter-brief from

defendant dated October 6, 2018. PCR counsel did not seek leave from the court

before submitting defendant's supplemental letter-brief. However, consistent

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with the Court's holding in State v. Rue, 175 N.J. 1, 19 (2002), PCR counsel

opted not to present any further oral argument in support of this position.

Judge Ravin accepted this post-argument supplemental pro se submission

and issued a second order dated on November 5, 2018 supported by a

memorandum of opinion that explained the basis for denying defendant PCR.

Judge Ravin held that Dr. Cronin

indicated that Mr. Everett died on the scene as a result
of a fatal concussion. Mr. Everett's life was not being
maintained by artificial means at the time of the
autopsy. Thus, [p]etitioner has failed to establish a
legal basis for his claim that Dr. Cronin was
unauthorized or unqualified to testify as to the cause of
Mr. Everett's death.

Judge Ravin also addressed and rejected the balance of defendant's

arguments attacking defense counsel's performance at trial. Against these facts,

defendant raises the following arguments in this appeal:

POINT I

AS [DEFENDANT] RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL, HE IS ENTITLED TO
[PCR].

(1) Trial counsel was ineffective by failing to move to
suppress Dr. Cronin's opinion as to the cause of death
on the grounds it was a net opinion.

(2) Trial counsel failed to investigate and present a
mental health defense.

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 (3) Trial counsel was ineffective when she stipulated
to Dr. Thoma's testimony.

(4) Trial counsel was ineffective when she failed to
argue in favor of less-included charges during
summation.

(5) Trial court's cumulative errors denied [defendant]
effective legal representation.

POINT II

AS THERE WERE GENUINE DISPUTES OF
MATERIAL FACT, AN EVIDENTIARY HEARING
WAS REQUIRED.

Defendant also raises the following arguments in a pro se supplemental

brief:

POINT I TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE FOR NEITHER CHALLENGING
NOR SUPPRESSING STATE[']S EVIDENCE
BEFORE TRIAL.

POINT II TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE FOR FAILING TO
INVESTIGATE AND PRESENT A VIABLE
MENS REA DEFENSE.

POINT III TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE FOR NEITHER CHALLENGING
[NOR] OBJECTING TO STATE[']S EXPERT
WITNESS.

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POINT IV TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE UPON ASSERTING THE
MOTION TO SUPPRESS THE CELL PHONE
VIDEO FOOTAGE.

POINT V TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE AND ACQUIESCE [SIC] OF
TESTIMONY FROM A NON-TESTIFYING
WITNESS.

POINT VI APPELLATE COUNSEL [WAS]
CONSTITUTIONALLY INEFFECTIVE DUE TO
HIS FAILURE TO RAISE THE ARGUMENTS
ASSERTED IN THIS CLAIM.

POINT VII MALICIOUS PROSECUTION FOR
PRESENTING FRAUDULENT
DOCUMENTATION AND WITHHOLDING
EXCULPATORY EVIDENCE DURING THE
GRAND JURY PROCEEDINGS.

POINT VIII MALICIOUS PROSECUTION FOR
INTENTIONALLY SOLICITING PERJURED
TESTIMONY.

POINT IX MALICIOUS PROSECUTION FOR
SUBMITTING HIGHLY PREJUDICIAL
EVIDENCE INTO TRIAL CONTRARY TO
N.J.R.E. 401 AND 402, PURSUANT N.J.R.E. 403.

POINT X MALICIOUS PROSECUTION FOR THE
SUPPRESSION OF THE STATE[']S
NEUROPATHOLOGIST CONTRARY TO THE
STATE[']S EXPERT WITNESS IN VIOLATION
OF CRAWFORD v. WASHINGTON, 541 U.S. 26
(2004).

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 We review a claim of ineffective assistance of counsel under the two-

prong test established by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984), and subsequently adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate

that defense counsel's performance was deficient. Strickland, 466 U.S. at 687.

Second, he must show there exists "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Id. at 694.

The mere raising of a claim of ineffective assistance of counsel does not

entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999). An evidentiary hearing is necessary only if

a petitioner presented sufficient facts to make out a prima facie claim of

ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 463 (1992);

R. 3:22-10(b). Defendant's unsupported, self-serving allegations are not

sufficient to satisfy this standard. We affirm substantially for the reasons

expressed by Judge Ravin in his well-reasoned written opinions denying defendant's

PCR petition. Defendant's remaining arguments, including those raised in

defendant's pro se supplemental brief, lack sufficient merit to warrant discussion in

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

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Affirmed.

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