STATE OF NEW JERSEY VS. JOHN WHITE (12-12-1811, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0188-19T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN WHITE,
Defendant-Appellant.
_______________________
Submitted January 4, 2021 – Decided January 20, 2021
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 12-12-
1811.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant John White appeals from a July 22, 2019 order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
We incorporate the facts from our opinion in State v. White, No. A-5421-
15 (App. Div. March 22, 2018) (White I). In White I, defendant appealed his
convictions for weapons and drug charges, raising the following arguments for
the first time on appeal: "the prosecutor posed a hypothetical question designed
to elicit an opinion that defendant possessed drugs with the intent to distribute";
the State's expert improperly testified on the ultimate issue thereby invading the
jury's factfinding role; the State's fact evidence was improperly bolstered by its
expert witness; "the prosecutor committed misconduct in vouching for the
credibility of a witness"; the State failed to provide a proper foundation for the
text message from defendant to a co-defendant; the trial court erred in admitting
co-defendant's testimony regarding the text message; the trial court failed to
provide a limiting instruction to the jury related to the text message; and the trial
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court erred in failing to instruct the jury using the model jury charge concerning
statements of defendant. 1 White I at 5-6.
Because each of defendant's contentions in White I were raised for the
first time on appeal, we reviewed his arguments for plain error in accordance
with Rule 2:10-2. Id. at 6. In White I, we affirmed the convictions, finding
defendant failed to show plain error as to any of the substantive issues raised on
appeal. Id. at 14. The New Jersey Supreme Court denied defendant's petition
for certification and motion for summary disposition. State v. White, 233 N.J.
608 (2018).
In September 2018, defendant filed a pro se PCR petition. After being
assigned counsel, defendant filed an amended petition,2 asserting his trial
attorney "failed to object to the prosecutor's summation, failed to request a
hearing to determine the admissibility of various alleged statements and failed
to request a jury charge" regarding defendant's alleged statements. In addition,
1
Defendant also appealed the five-year sentence imposed for possession of
narcotics with intent to distribute within 1000 feet of school property. We
remanded the matter for the judge to apply the correct sentence of three years
for that offense. White I at 14.
2
Defendant's amended PCR petition incorporated the arguments set forth in his
pro se petition.
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he argued trial counsel "should have been more prepared at trial and failed to
recognize the importance of these objections during trial."
The PCR judge heard argument on July 22, 2019. The judge rendered an
oral decision, concluding defendant's PCR issues were raised and adjudicated
on the merits in his direct appeal. Based on White I, the PCR judge determined
any inappropriate comments regarding the credibility of a testifying co -
defendant made by the prosecution during summation "were not so egregious
that it deprived defendant of a fair trial" and found "[t]here was sufficient
evidence in the record for the jury to ultimately decide the defendant owned a
gun." In rejecting defendant's argument related to the failure to provide a
Hampton3 charge, relying on White I, the PCR judge found the jury instructions
"were sufficient because they still captured the same information that a Hampton
charge would have conveyed." Having determined the issues in defendant's PCR
petition were "clearly addressed by the Appellate Division under [Rule] 3:22-
5," the judge held defendant's PCR "application [was] procedurally barred from
adjudication or resolution at a hearing."
On appeal from denial of his PCR petition, defendant raises the following
arguments:
3
State v. Hampton, 61 N.J. 250 (1972).
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POINT I
DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF SHOULD NOT BE BARRED
BECAUSE DEFENDANT'S CLAIMS WERE NOT
EXPRESSLY ADJUDICATED BY THE APPELLATE
DIVISION.
POINT II
DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL FOR
COUNSEL'S FAILURE TO OBJECT TO THE
PROSECUTOR'S PREJUDICIAL STATEMENTS
DURING CLOSING WHICH UNFAIRLY
BOLSTERED THE TESTIMONY OF A STATE'S
WITNESS AND FOR FAILURE TO REQUEST A
HAMPTON CHARGE RELATED TO HIS ALLEGED
ADMISSIONS TO A THIRD PARTY.
(a) APPLICABLE LAW.
(b) COUNSEL WAS INEFFECTIVE FOR FAILING
TO OBJECT TO THE PROSECUTOR'S REMARKS
DURING CLOSING WHICH PREJUDICED THE
DEFENDANT BY UNFAIRLY BOLSTERING THE
CREDIBILITY OF A WITNESS AGAINST HIM.
(c) COUNSEL WAS INEFFECTIVE FOR FAILING
TO REQUEST A JURY CHARGE ON THE
WEIGHING OF CREDIBILITY OF A WITNESS'S
TESTIMONY REGARDING ADMISSION MADE BY
DEFENDANT.
On this record, we are satisfied the PCR judge properly determined
defendant's arguments were procedurally barred. In addition, even if defendant's
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PCR arguments were not procedurally barred, defendant failed to make a prima
facie showing in support of his ineffective assistance of counsel claim.
If an issue has previously been raised and decided, the "prior adjudication
upon the merits . . . is conclusive whether made in the proceedings resulting in
the conviction . . . or in any appeal taken from such proceedings." R. 3:22-5.
In determining whether this procedural bar applies, the challenged claim should
be compared with the prior claim to determine if the two "are either identical or
substantially equivalent." State v. Marshall, 173 N.J. 343, 351 (2002). "If the
claims are substantially the same, the petition is procedurally barred; if not, the
claim of error should be adjudicated when there is no other reason to bar it."
Ibid.An issue decided on direct appeal may not be considered in a PCR
proceeding. State v. Preciose, 129 N.J. 451, 476 (1992). Defendant argues his
direct appeal did not address the same claims as his PCR petition. The issues
asserted in defendant's petition for PCR, however, implicate the same
substantive claims of error that defendant raised, and we rejected, in White I.
Although defendant reframes his argument in terms of ineffective
assistance of counsel, the PCR arguments substantively concerns the same issues
raised in White I. Specifically, defendant rehashes the same arguments
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regarding the prosecutor's comments during summation, text messages sent by
defendant, and the absence of a Hampton charge. PCR is not "an opportunity to
relitigate matters already decided on the merits . . . ." State v. Afanador, 151
N.J. 41, 50 (1997) (citing Preciose, 129 N.J. at 459).
Even if defendant's claims were not procedurally barred, he failed to
establish a prima facie case of ineffective assistance of counsel under the
Strickland/Fritz analysis.4 To establish an ineffective assistance of counsel
claim, a defendant must demonstrate: (1) counsel's performance was deficient,
and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S.
at 687; see also Fritz, 105 N.J. at 58 (adopting the Strickland two-part test in
New Jersey).
Here, based on our decision in White I, defendant is unable to demonstrate
defense counsel's performance was so deficient as to constitute ineffective
assistance of counsel. In addition, as a result of our affirmance of defendant's
conviction in White I, defendant is unable to establish defense counsel's alleged
deficiencies deprived him of a fair trial or that the outcome of the trial would
have differed if counsel raised certain arguments.
4
Strickland v. Washington, 466 U.S. 668, 687 (1984) and State v. Fritz, 105
N.J. 42, 58 (1987).
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The remainder of defendant's arguments lack sufficient merit to warrant
further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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