April 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LESTER S. BARNEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-01-0077.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2012
Before Judges Parrillo, Grall and Skillman.
Defendant was found guilty by a jury of the purposeful or knowing murder of his wife, in violation of N.J.S.A. 2C:11- 3a(1), (2); and second-degree interference with his wife's custody of their child, in violation of N.J.S.A. 2C:13-4a(4). The trial court sentenced defendant to life imprisonment, with the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the murder, and a consecutive four-year term for interference with custody. We affirmed defendant's conviction and sentence in an unreported opinion, State v. Barney, No. A-2397-05 (Oct. 18, 2007), and the Supreme Court denied his petition for certification, 194 N.J. 273 (2008).
Defendant filed a petition for post-conviction relief based primarily on claims of ineffective assistance of counsel. After hearing argument by counsel, the trial court issued a comprehensive letter opinion denying the petition. On appeal from the order memorializing that denial, the Public Defender presents the following arguments on defendant's behalf:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER TRIAL COUNSEL WAS INEFFECTIVE.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE COURT'S FAILURE TO PROVIDE A PROPER READBACK TO THE JURY.
C. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE STATE'S SUMMATION.
D. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBTAIN A BLOOD SPATTER EXPERT.
E. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A RULE 104 HEARING AS TO THE ADMISS[I]BILITY OF CERTAIN EVIDENCE REGARDING DEFENDANT'S SUICIDE ATTEMPT.
F. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A RULE 104 HEARING AS TO THE ADMISS[I]BILITY OF CERTAIN EVIDENCE REGARDING DEFENDANT'S FLIGHT AND FAILED TO REQUEST A JURY CHARGE.
G. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A HAMPTON AND KOCIOLEK CHARGE REGARDING THE ALLEGED ADMISSIONS THE DEFENDANT MADE TO THE HANNEYS.
H. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST THAT THE COURT PROVIDE THE JURY WITH THE AFFIRMATIVE DEFENSE TO THE CHARGE OF INTERFERENCE WITH CUSTODY.
I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE COURT'S CHARGE REGARDING "USE OF A KNIFE" AND "INFERENCE OF PURPOSE TO TAKE LIFE[.]"
In addition, defendant has submitted a supplemental pro se brief that presents the following arguments:
DEFENDANT CLEARLY AND UNEQUIVOCALLY NOTIFIED THE TRIAL COURT THAT HE DESIRED TO PROCEED PRO SE, HOWEVER THE COURT REFUSED TO HOLD A FARETTA HEARING AND REFUSED TO ALLOW HIM TO PROCEED PRO SE THEREBY VIOLATING HIS CONSTITUTIONAL RIGHT TO COUNSEL AND HIS RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (raised below).
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN, IN LIEU OF AN OFFICIAL READBACK, IT ALLOWED THE JURY TO HAVE A COPY OF THE ENTIRE TESTIMONY OF DEFENDANT BARNEY AND DR. RAGASA, THEREBY DENYING DEFENDANT HIS RIGHT TO A FAIR AND PUBLIC TRIAL, HIS RIGHT TO DUE PROCESS OF LAW AND HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW, GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (raised below).
THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATE CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (raised below).
A. Counsel Failed to Investigate and Put Forth a Blood Spatter Exert, Which Would Have Shown That Defendant's Testimony of Accident is Supported by Forensic Evidence, and State's Version of Attack From Behind Was Highly Unlikely, Therefore Rendered Ineffective Assistance of Counsel.
B. The Failure of Counsel to Object to the Trial Court's Instruction on Inference Regarding the Use of a Knife Removed Material Elements From the Jury Deliberations Denying Defendant a Fair Trial and Due Process of Law.
C. The Legal Errors Committed in This Matter by Trial Counsel When Viewed Either Individually or Cumulatively Are of Such Magnitude to Have Rendered Counsel's Performance Ineffective Mandating a Reversal of His Convictions and a Remand For Trial.
THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, THEREBY DEPRIVING HIM OF DUE PROCESS OF LAW AND A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION DUE TO THE FAILURE ON THE PART OF APPELLATE COUNSEL TO RAISE OBVIOUS ISSUES OF TRIAL ERROR.
SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE BY TRIAL COUNSEL AND [APPELLATE] COUNSEL, OF AND OF OTHER ISSUES OF MERIT, THE COURT MUST AFFORD THE DEFENDANT A FULL EVIDENTIARY HEARING. (raised below).
THE ERRORS BY THE TRIAL COURT AS WELL AS TRIAL AND [APPELLATE] COUNSEL CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. (raised below).
THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW AND A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSE CONSTITUTION FOR THE REASONS LISTED IN DEFENDANT'S PRO SE SUPPLEMENTAL BRIEF FILED WITH THE PCR COURT (SEE DA151 TO 260). (raised below).
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in the trial court's written opinion. Generally, defendant's arguments do not warrant any additional discussion. R. 2:11- 3(e)(2). However, we comment briefly upon several of those arguments.
The trial court correctly ruled that defendant's argument that the court erred in providing the jury with a transcript of testimony it had requested to be read back was barred by Rule 3:22-5 because we rejected the same argument in defendant's direct appeal. Moreover, even if this argument were not foreclosed by Rule 3:22-5, we would conclude that because defendant's trial counsel acquiesced in the court's decision to provide the jury with a transcript of trial testimony rather than a readback, and defendant has made no showing of how he could have been prejudiced by this procedure, it did not constitute reversible error.
Even if trial counsel had presented blood spatter evidence of the sort reflected in the expert report of Norman Reeves, defendant has failed to establish, in light of the conflicting inferences that could be drawn from such evidence and the overwhelming evidence of defendant's guilt, that there is a "reasonable probability" the outcome of the trial would have been different if such evidence had been presented at trial. See Strickland v. Washington, 466 U.S. 668, 694-95, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). Even if such expert opinion evidence could have created doubt as to whether the murder occurred precisely as theorized by the prosecutor, the photographs of the victim's wounds and the medical examiner's testimony regarding those wounds proved beyond any doubt that the victim's death could not have occurred by accident or in self-defense, as defendant testified. Therefore, the failure to present such expert testimony did not constitute ineffective assistance of counsel.
We recognize that defendant's July 21, 2005 letter to the trial court could be read as a request by defendant to represent himself. However, the trial court advised defendant on the record that he had not read that letter because defendant was represented by counsel and any communication with the court had to be through counsel, and defendant did not pursue the issue of self-representation any further. Therefore, the trial court correctly concluded that defendant did not make a "clear and unequivocal" request to represent himself. See Faretta v. California, 422 U.S. 806, 835-36, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562, 582 (1975).
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