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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...