November 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PIERRE FORBES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 99-07-0888-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Parrillo and Lihotz.
Defendant Pierre Forbes appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Following a joint trial by jury, defendant and John Martinez were convicted of aggravated manslaughter, a lesser-included offense of murder with which they were charged, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6; and conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1(b) and N.J.S.A. 2C:5-2. For sentencing purposes, the latter conviction was merged into the former, for which defendant was sentenced to a thirty-year term with an 85% parole disqualifier pursuant to N.J.S.A. 2C:43-7.2.
The criminal episode arose out of an assault for hire arranged by defendant's brother, Richard Forbes, at the behest of his long-time friend Martinez, who was having marital problems and suspected his wife of having an affair with the victim, Salvatore Salierno. Richard, in turn, recruited his brother and a mutual acquaintance, Jeremiah Farmer, who both agreed to beat up Salierno. After two unsuccessful attempts, Farmer and defendant finally met up with Salierno on October 25, 1998, at around 7:30 p.m., after being driven to the location by another acquaintance, Gerald Gloster. The assault that followed resulted in Salierno's death when defendant repeatedly and fatally struck the victim with both a ten-pound metal pipe and his hands. When Farmer later asked defendant why he had killed Salierno, defendant simply responded "that's what I wanted to do."
At trial, Richard, Farmer and Gloster all implicated defendant in the fatal beating. The defense theory was that Richard and his associates, in exchange for significant reductions in sentences and in Richard's case, no charges at all, were framing defendant for their own wrongdoing. To this end, the defense presented Vanyce Forbes, who testified that she had a bad relationship with her brother Richard, that she had found a map in Richard's room labeled "Parsippany" with instructions for public transportation, but it had disappeared; and that Forbes, who Farmer said struck Salierno with a metal pipe in his right hand, is left-handed.
Evidently crediting the State's proofs, the jury convicted both Martinez and defendant of the lesser-included offense of aggravated manslaughter and conspiracy to commit aggravated assault. We affirmed the judgment of conviction, State v. Forbes, A-5015-00T4 (App. Div. May 27, 2003)*fn1, and the Supreme Court denied defendant's petition for certification. 178 N.J. 32 (2003).
Thereafter, defendant pro se filed a timely PCR petition in which he alleged trial counsel was ineffective because she failed to investigate and present an alibi defense; failed to cross-examine adverse witnesses; and gave erroneous advice as to use of defendant's prior convictions, which affected his decision not to testify. Defendant also claimed he was entitled to a new trial based on newly discovered evidence, although no motion was ever filed below. R. 3:20-1. PCR counsel filed a supplemental brief, including a certification from defendant stating that he gave trial counsel the names of alibi witnesses, Candy and Keisha Burnell and "Bobby" Khan, his employer and owner of the fenced-in parking lot where defendant claimed he was working and locked inside the night of the homicide.
At the PCR hearing, in addition to the claimed ineffective assistance of counsel,*fn2 defendant also found fault with the trial court's response to the so-called sleeping juror and its jury instructions, and with the jury verdict. As to the latter claims, the PCR judge found them procedurally barred and substantively without merit. As to the ineffective assistance of counsel claim, Judge Bozonelis ruled that there was no basis for an evidentiary hearing in the absence of affidavits from those whom defendant claims should have been called. The judge, however, did provide defendant ninety days to provide evidence supportive of the much-belatedly claimed alibi defense. At the expiration of this period, however, counsel informed the court there was no basis for an amended petition, and consequently, the judge denied defendant's petition in its entirety on January 22, 2007.
On appeal, defendant asserts that, in addition to trial and appellate counsel, his PCR counsel was ineffective in advancing his alibi defense. Specifically, defendant claims PCR counsel failed to invoke the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings, N.J.S.A. 2A:81-18 to-23, to secure Khan's testimony. We find no merit to any of defendant's contentions.
It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Moreover, the standard for assessing PCR counsel's performance is further informed by Rule 3:22-6(d), which requires counsel to present the Court with all claims advanced by the defendant in his pro se petition, including those that lack merit. See also State v. Rue, 175 N.J. 1, 19 (2002) (holding that PCR "counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them"). PCR counsel must also "communicate with the client... determine whether there are additional claims that should be brought forward[,]... [and] advance all of the legitimate arguments that the record will support." State v. Webster, 187 N.J. 254, 257 (2006). However, when communication and investigation have yielded no support for those claims, counsel is not required to do more than advance defendant's points as enunciated in his pro se brief or petition. Id. at 257-58; Rue, supra, 175 N.J. at 19.
As with any assertion of the claim, a defendant is not "entitled to an evidentiary hearing to determine whether'the result of the proceeding would have been different...'" unless he first establishes a prima facie showing of ineffective assistance of counsel. State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007); see also State v. Preciose, 129 N.J. 451, 462 (1992). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, "he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. (citing R. 1:6-6).
Here, defendant has never asserted facts that an investigation would have revealed other than, of course, his blanket claim of an alibi. And even then, defendant merely states in his January 10, 2008 certification that on October 25, 1998, "at 6:00 a.m. until 6:00 a.m." he was at "Mr. Khun [sic] car lot as night watchman locked in." To compound the deficiency, defendant has offered no supporting affidavit or certification of any witness attesting to his whereabouts on the evening of the homicide. Thus, even if Khan were located and made available, there is no competent, reliable proof in the record as to what testimony would have been elicited from this witness. And even if Khan were to corroborate defendant's employment as a security guard at his car lot in Queens, there is nothing to indicate that Khan would further confirm defendant's facially implausible claim that he was "locked" alone inside the fenced-in lot at the time of the crime. Absent such a showing, defendant is entitled neither to an evidentiary hearing nor to the court's compulsory process to secure the attendance of an out-of-state witness. Simply put, defendant has not demonstrated how any failure to utilize the court's compulsory process under N.J.S.A. 2A:81-20 reflects adversely on the professional competence of either trial or PCR counsel under the respective Strickland and Rue standards, or how, if successful, the result would most likely have been any different given the overwhelming evidence of defendant's guilt. Indeed, defendant's brother and two acquaintances testified unequivocally as to his presence at the commission of the crime. We are persuaded, therefore, that the alleged deficiency here clearly fails to meet either the performance or prejudice prong of the Strickland test.
Defendant's claim of ineffective assistance of appellate counsel fares no better. The claim here is that counsel failed to "make use" of a letter, apparently discovered by defendant's sister Vanyce, that was given to counsel on February 24, 2003, over two years after the judgment of conviction. The letter, which purports to be authored by Richard Forbes to extort money from Khan, is undated, unsigned, and bears no indication to whom it is addressed. Moreover, defendant fails to inform how his appeal would most likely have succeeded had the letter been used by appellate counsel. Most significant, however, as the PCR judge noted, the letter was clearly outside the trial record and thus not cognizable, in any event, on appeal. R. 2:5-4; see also State v. Golotta, 178 N.J. 205, 211-12 (2003).
We have considered defendant's remaining arguments and find them to be without merit, not warranting discussion in this opinion. R. 2:11-3(e)(2). As to these, we affirm substantially for the reasons stated by Judge Bozonelis in his thorough oral decision of September 25, 2006.