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

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

NOT FOR PUBLICATION WITHOUT THE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.

September 20, 2018
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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 
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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 crossexamination 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-
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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.
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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.