On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-04-1645.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Lihotz.
Defendant Michael Barnes appeals from an order denying his petition for post-conviction relief (PCR) entered on December 22, 2005. We affirm.
A jury found defendant, who worked as a night aide in a group home, guilty of committing two second-degree sexual assaults of a mentally handicapped man in his care, and an additional second-degree sexual assault against another mentally handicapped resident of the home. On January 25, 1998, defendant was sentenced to an aggregate seventeen-year prison term. On direct appeal, we affirmed defendant's judgment of conviction. State v. Barnes, No. A-3322-92 (App. Div. January 20, 1995). The Supreme Court subsequently denied defendant's petition for certification. State v. Barnes, 142 N.J. 517 (1995).
Defendant's PCR petition was initially denied by the trial court on November 10, 1999, and on appeal we reversed and remanded the matter for an evidentiary hearing. State v. Barnes, A-5515-99 (App. Div. May 14, 2002). On April 9, 2003, following the remand hearing, the trial court denied defendant's petition for PCR. Defendant appealed, and in our third opinion, dated February 15, 2005, we again remanded the matter for an evidentiary hearing to resolve two outstanding issues:
(1) "whether any witnesses subject to subpoena failed to appear, their identity and the nature of their proposed testimony, and any efforts made by Moorman [(defendant's trial attorney)] to secure their presence"; and (2) whether "Moorman failed to introduce medical and forensic evidence that, apparently, would have demonstrated a lack of corroboration of the victims' allegations."
On December 21, 2005, at the conclusion of the second evidentiary hearing, the trial court set forth its reasons for denying PCR, and on December 22, 2005, an order denying defendant's petition was entered. The trial court's findings and conclusions included the following:
In the course of Mr. Moorman's testimony, he testified that these, the individuals noted on S-1 were all individuals who had been subpoenaed, or all individuals who had been noted to Mr. Moorman by [defendant] as individuals who may have information relative to the matter.
The gravamen . . . of what Mr. Moorman testified with regard to those eight individuals was that they would offer testimony as to the good character and reputation of . . . the defendant.
Mr. Moorman testified that he interviewed each of the witnesses that were offered and reached the conclusion that most were insufficiently credible, and . . . [the] testimony they offered would have been detrimental to the defendant's defense.
In his view, . . . many would have hurt the defendant, and the ones who . . . didn't hurt the defendant, were not necessarily credible. But that in any event, he subpoenaed everybody with the expectation that if something changed, at the very least . . . he'd have the witnesses available should he reach a different conclusion, or he and [defendant] reach a ...