November 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARNELL BELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-05-0600.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Reisner and Simonelli.
Defendant Darnell Bell appeals from the September 2, 2008 order, which denied his second petition for post-conviction relief (PCR). We affirm.
A grand jury indicted defendant for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The charges stemmed from defendant's participation in the robbery and murder of Stephanie Hosley after defendant and his cohorts drove her to an ATM machine to make a withdrawal.
Following an investigation, the police obtained an arrest warrant for defendant and a search warrant for his home. At approximately 6:00 a.m. on March 20, 1997, the police went to the home of defendant's aunt, where defendant was known to sometimes stay. Upon arriving, they knocked on the door and yelled "Elizabeth Police." Approximately two to three minutes later, a woman opened the front door. The police advised her that they had an arrest warrant for defendant, but she told them that he was not there. The police then heard loud footsteps running in the upstairs hallway. They entered the home, went upstairs, searched, and eventually found defendant hiding in the attic. The police arrested defendant and transported him to police headquarters where, after waiving his Miranda*fn1 rights, he gave oral and written statements confessing to his participation in the crime. Defendant later filed a motion to suppress his confession on the ground that the police unlawfully arrested him without a search warrant for his aunt's house. Judge Barisonek denied the motion.
A jury convicted defendant on all counts. Judge Barisonek sentenced defendant to a sixty-year term of imprisonment with a thirty-year period of parole ineligibility. Defendant appealed his conviction and sentence, arguing, in part, that his confession was inadmissible because it was not voluntary. We affirmed defendant's conviction and sentence, and our Supreme Court denied certification. State v. Bell, No. A-4932-99 (App. Div. October 10, 2002), certif. denied, 175 N.J. 433 (2003).
Defendant filed a pro se PCR petition and brief, primarily arguing that Judge Barisonek should have suppressed his confession because it resulted from an arrest made pursuant to an unlawful search. He also argued that trial and appellate counsel were ineffective because they failed to challenge the validity of the arrest warrant and search, obtain a defense pathologist to challenge the State's expert pathologist, challenge his sentence, and obtain an interrogation expert to prove coercion.
Thereafter, assigned counsel filed an amended petition, defendant's affidavit, and a letter brief and supplemental letter brief, arguing that: (1) trial counsel was ineffective because she failed to argue for suppression of the confession based on the illegal search of the aunt's home at the Miranda hearing, and appellate counsel was ineffective because she failed to raise this issue on direct appeal; (2) trial counsel was ineffective because she failed to call defense witnesses at the Miranda hearing and trial to support his defense theory that the police improperly entered his aunt's home without consent; (3) there were no procedural bars to the petition; and (4) defendant's sentence was illegal. PCR counsel also submitted a second supplemental letter brief further arguing that defendant's confession should have been suppressed on Fourth Amendment*fn2 grounds.
Judge Barisonek denied the petition based on the holding in New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), that an otherwise lawful arrest following an illegal search made without a search warrant did not justify suppression of defendant's confession. We affirmed, finding that defendant's arrest was lawful because it was authorized by a valid arrest warrant. State v. Bell, 388 N.J. Super. 629, 636 (App. Div. 2006). Accordingly, we held that there was no basis to suppress the confession. Ibid. The Court denied certification. State v. Bell, 189 N.J. 647 (2007).
Defendant filed a second PCR petition, raising a different argument"that the police should not have been permitted to testify that they found defendant hiding in the attic, trial counsel was ineffective because she did not object to that testimony and to the limiting instruction the judge gave that the jury could only consider the testimony as evidence of a consciousness of guilt, and appellate counsel was ineffective because she failed to raise trial counsel's deficiencies. Defendant also argued that: (1) Judge Barisonek's interaction with a juror violated his Sixth and Fourteenth Amendment*fn3 rights; (2) there was "newly discovered" evidence of prosecutorial misconduct and a conspiracy between the judge who issued the warrant and the prosecutor involving the issuance of the warrant; (3) there was "newly discovered" evidence of Judge Barisonek's failure to order a psychiatric examination to determine defendant's competency to stand trial; (4) trial counsel was ineffective because she failed to obtain a psychiatric examination; and (5) first PCR counsel was ineffective because she failed to raise trial counsel's deficiencies.
In an oral opinion rendered on September 2, 2008, Judge Barisonek concluded that defendant failed to satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), substantially for the reasons the judge gave in denying defendant's first PCR petition. The judge also relied on our holding in defendant's first PCR appeal that defendant's arrest was lawful and there was no basis to suppress his confession. Applying this rationale to the officers' testimony, which was only offered to show consciousness of guilt, the judge found there was no constitutional basis to suppress it. The judge concluded:
The fact that [defendant] attempted to secrete himself so as to avoid arrest was the reason the testimony was offered and it was both relevant and admissible. He had no right to avoid the arrest since it was an arrest based on a valid warrant. And that is the point. Somebody cannot resist an arrest or flee from an arrest that is being announced, nor should they hide when the police are about to arrest them, and that is what occurred here. That had nothing to do with the unlawful entry into the house. It had to do with a valid arrest warrant that the police were going to execute. So the same reasoning that was applied under the Harris [supra] case applies to the case elements of proof. By [defendant] avoiding what is a lawful, legal arrest and secreting himself it relates to a consciousness of guilt. It relates to the warrant not to the police entry into the home without a search warrant.
The judge further found that he would have overruled trial counsel's objection to the officers' testimony. He, thus, held that trial, appellate and PCR counsel did not provide ineffective assistance of counsel regarding the officers' testimony or the limiting instruction.
Judge Barisonek concluded that Rule 3:22-4*fn4 barred defendant's remaining arguments because he should have raised them on direct appeal and/or he raised them in the first PCR petition, albeit in a different way. Substantively, the judge concluded that the arguments lacked merit and were based on mere speculation. Specifically, the judge found that: (1) the limiting instruction on consciousness of guilt was appropriate in light of the fact that defendant offered no explanation as to why he was hiding in the attic; (2) the judge had properly resolved the juror issue; (3) there was no factual support for defendant's prosecutorial misconduct and conspiracy arguments; (4) the warrants were properly issued; (5) there was no evidence of defendant's mental incapacity affecting his ability to stand trial; and (6) defendant's alleged mental incapacity did not constitute "newly discovered" evidence. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST THE INTRODUCTION OF INADMISSIBLE "CONSCIOUSNESS OF GUILT" EVIDENCE THAT RESULTED FROM AN ILLEGAL SEARCH WAS VIOLATED.
POINT II SINCE THE DEFENDANT MADE A PRIMA
FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
POINT III THE COURT'S RULING DENYING POST-
CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV DEFENDANT REASSERTS ALL OTHER
ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
THE TRIAL COURT'S INTERACTION WITH JUROR NUMBER 2 VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO AN IMPARTIAL JURY AND HIS FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL, AND TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT.
[CONSPIRATORIAL] CONDUCT BETWEEN THE TRIAL COURT AND THE UNION COUNTY PROSECUTOR'S OFFICE CONCERNING THE ISSUANCE OF A WARRANT VIOLATED THE DEFENDANT'S FOURTH, FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS, AND TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT; AND THE WARRANT FOR THE DEFENDANT'S ARREST WAS INVALID.
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO SECURE A PSYCHIATRIC EXAMINATION OF THE DEFENDANT.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF FIRST PCR COUNSEL.
THE TRIAL COURT DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY AND HIS DUE PROCESS RIGHT TO A FAIR TRIAL BECAUSE OF IMPROPER CHARGES TO THE JURY.
THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.
To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must satisfy the two-prong Strickland test by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
In assessing the first prong, a court must determine whether counsel's conduct fell "'outside of the wide range of professionally competent assistance considered in light of all of the circumstances of the case.'" State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). The defendant must demonstrate that counsel's action "did not equate to sound trial strategy." Ibid. (internal quotation marks and citation omitted). As the Supreme Court observed: an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial. [Id. at 367 (quoting Castagna, supra, 187 N.J. at 314-15).]
The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97). In order to meet his or burden under this prong, the defendant must show the "'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.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Applying these standards, we have carefully reviewed defendant's arguments and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Barisonek's thorough oral opinion rendered on September 2, 2008. However, we make the following brief comments.
"Evidence of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt" and "[a] jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." State v. Mann, 132 N.J. 410, 418-19 (1993). In this case, the police announced their presence upon arriving at defendant's aunt's house, and advised her of the arrest warrant for defendant. Defendant, thus, knew the police were there to arrest him, and he hid in the attic in order to avoid apprehension and arrest. Accordingly, the officers' testimony of defendant's attempt to avoid a lawful arrest by hiding in the attic was admissible to show consciousness of guilt, and the limiting instruction was proper.