June 14, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL BARNES, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2007
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 different conclusion at the time of the trial with regard to the need for their testimony.
. . . [H]e testified and I find him credible, that he spoke to each and every one of them, he subpoenaed each and every one of them and to the extent to which any of them actually appeared, he reached a conclusion that he would not call them as witnesses because he didn't find them to be credible, or that their testimony . . . would have been . . . not helpful. And in fact, detrimental.
. . . Contrary to what [defendant's attorney] asserts, my experience . . . is that it is rare for counsel to seek the
[c]court's assistance in terms of securing witnesses. Exactly for the reason . . . that Mr. Moorman described, and because often a reluctant witness is less useful than no witness at all.
There's no evidence . . . any of these identified witnesses would have provided one scintilla of assistance. There is not one scintilla of evidence provided to this
[c]court as to what any of these individuals would have said should they have appeared.
With respect to defendant's claim that his trial attorney was ineffective for failing to introduce medical and forensic evidence to demonstrate "a lack of corroboration of the victims' allegations," the court had this to say:
Because there was no . . . physical or forensic evidence corroborating the victim[s'] allegations, none was offered.
That's perfectly logical that . . . the State didn't offer evidence that didn't exist. Mr. Moorman reached a tactical decision based upon his experience as a trial attorney that producing . . . expert testimony that would have simply provided for evidence that, of a negative, evidence that something did not exist, when the State was not suggesting that such things existed in the first place, was a strategic decision made by Mr. Moorman at the time of the trial.
And a strategic decision that while . . . we may disagree in hindsight 15 years later, and I'm not saying that I do disagree, I'm simply indicating that reasonable minds could disagree as to whether or not that strategy was appropriate, especially not only 15 years of hindsight, . . . but 15 years . . . after a guilty verdict.
He reached that conclusion I gleaned from his testimony because he was firmly of the belief that strategically he should . . . provide a defense [by] offering witnesses who were going to corroborate . . . his position that Mr. Barnes did not do what it is he was accused of doing. To let the jury know that he was in effect contesting, whether or not there was any sexual assault in the first place, would have . . . highlighted at a time closer to . . . jury deliberations, the abhorrent nature of the acts alleged.
It was strategically quite logical . . . especially when its value was limited. And I don't believe . . . that his judgment should be second guessed at this point, and it doesn't fall below in my view a[n] appropriate standard of competence.
A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984). New Jersey has adopted the standards set out in Strickland. State v. Fritz, 105 N.J. 42, 58 (1987).
"[A] defendant whose counsel performed below a level of reasonable competence must show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698).
To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland/Fritz test.
First, he must demonstrate that his counselor's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
"The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to secondguess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."
[Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95 (internal citation omitted).]
The PCR court determined that defendant failed to meet both prongs of the Strickland/Fritz test, and the record fully supports the court's findings and conclusions. We therefore affirm substantially for the reasons stated by Judge Vena in his comprehensive oral decision on December 21, 2005.
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