July 3, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HASSAN BARNES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-11-04588.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 19, 2012 -
Before Judges Axelrad and Parrillo.
Defendant Hassan Barnes appeals from an order of the Law Division denying his petition for post-conviction relief (PCR).
Indicted for the first-degree murder of Troy Jones, N.J.S.A. 2C:11-3a(1) and (2), and related conspiracy, N.J.S.A. 2C:5-2, and related offenses, N.J.S.A. 2C:39-5d and N.J.S.A. 2C:39-4d, defendant was convicted of the lesser-included crime of aggravated manslaughter, N.J.S.A. 2C:11-4, and both weapons offenses. He was sentenced on the former to a twenty-five-year custodial term with an 85% period of parole ineligibility, to run concurrent with terms of eighteen months and five years imposed on the two weapons offenses respectively.
We affirmed defendant's conviction on appeal, but remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Barnes, No. A-2907-03 (App. Div. Dec. 8, 2005). Defendant was re-sentenced to the same custodial terms originally imposed. We subsequently remanded again for a sentence disparity hearing, at which the original sentence was reimposed.
We recount the salient facts underlying the crimes for which defendant was found guilty as stated in our opinion affirming his conviction:
The charges arose out of the fatal beating of Troy Jones (Troy) on the morning of April 5, 2001. Tonya Jones (Tonya),*fn1 a friend of defendant and co-defendant, testified that while driving her friend's gold Acura on South Harrison Street in Orange, she was flagged down by James. He got into the car and told Tonya that defendant had just been robbed and asked her to drive him to defendant. They then spotted defendant walking towards the car. Defendant told James and Tonya he thought he knew where his "stuff" was, climbed into the back seat, and they went looking for Troy.
Tonya pulled over after they spotted Troy walking on Oakwood Avenue toward Main Street. Defendant got out of the car and placed a coat in the trunk. He then began fighting with Troy, after which James entered the fight. Troy ran across the street, pursued by defendant and co-defendant. Tonya then saw defendant strike Troy several times in the head with a U-bar or tire iron, while James struck him in the face with his fist. On direct, Tonya testified that after the victim fell to the ground, James went through his pockets. She further testified that the two men returned to the vehicle and she dropped them off a few blocks away and went home. On cross-examination, she testified that defendant returned to the car while the victim was still on his feet, and James continued to strike him until he fell, and then went through his pockets. She later learned the victim had died. Tonya subsequently gave a statement to the police, named defendant and co-defendant as the assailants and identified them in a photo array.
Kim Jones (Kim),*fn2 who gave a statement to the police that afternoon, testified that on her way to work at the Oakwood Avenue School, she saw two men beating another man and yelling "get him" or "hold him." She did not observe any weapons. The victim began running away and was chased by the men. Then one of the attackers entered a cab, presumably to follow the victim. A few days later she identified defendant from a photo array as one of the attackers and the one who entered the cab.
The responding officers observed the victim laying face down, bleeding from the head with a fatal skull wound. Witnesses advised that a gold Acura with two passengers had fled the scene. The victim died of trauma from a blunt instrument.
About a week later Investigator Harris received an anonymous call from a female who implicated defendant and co-defendant in the incident. A criminal record check and photographs of the two men were obtained and a computer alert was sent that they were wanted for questioning.
On June 7, 2001 Investigator Harris was informed by the East Orange police that defendant had been arrested at about 2:00 p.m. on an unrelated matter and was in custody. Investigator Harris arrived at about 4:00 p.m. and, upon seeing the officer, defendant began blurting things out and crying. Defendant and the officer went down to the detective bureau in the basement, after which Investigator Harris read defendant his Miranda*fn3 rights. The officer testified that defendant had calmed down by that time and did not appear to be physically injured or under the influence. Defendant again indicated he wanted to speak with Investigator Harris. The officer then read a complete Miranda waiver form to defendant and had him also read it aloud, initialing each statement. Defendant signed the waiver form in the presence of Investigator Harris and Detective Webster, who had arrived about forty-five minutes after they went down to the basement.
Defendant made a statement that Troy approached him and James in front of 158 South Harrison Street to buy drugs, but after some initial discussion, Troy grabbed the drugs and ran. Defendant chased Troy and threw him to the ground. Troy grabbed more drugs from him and ran towards Oakwood Avenue. Defendant went looking for him with James and Tonya. When they found him, the men jumped out of the car and punched and kicked him. At first, defendant said that Troy swung a pipe at him and he grabbed it; then he said he got the pipe out of the back of the car.*fn4 Either way, defendant admitted he stuck Troy with the pipe two or three times on the back, neck and head. Troy fell to the ground, defendant got back into the car, threw the pipe in the back and left. Defendant provided specific details about Tonya ("Tweets"), the gold Acura, the $3500 worth of Pyramid cocaine he claimed the victim took from him, and the cab he rode in before meeting with Tonya and James.
At trial, defendant testified that the victim punched him in the face twice, took about $100 from his hand that he was using to purchase drugs from James, and ran. Defendant chased him, grabbed him and demanded his money back. Troy grabbed his wallet and fled. He took a cab but did not find Troy, saw Tonya and James, and together they found Troy. Defendant and James began fist fighting with Troy. Troy swung a pipe at defendant, which defendant grabbed and hit Troy. Defendant left the pipe at the scene and got into Tonya's car. According to defendant, he left Troy standing; Troy fell to the ground only after James punched and kicked him.
[State v. Barnes, supra, No. A-2907-03 (slip op. at 4-8) (third footnote added).]
Defendant's first PCR petition was dismissed without prejudice on February 27, 2009. He then filed the instant PCR petition on December 3, 2009, generally alleging ineffective assistance of trial counsel. Specifically, defendant claimed counsel was ineffective in failing to investigate certain witnesses whose names defendant supposedly provided to his counsel. In denying relief on this ground, Judge Peter J.
Vazquez found that the claim involved matters of trial strategy and that, in any event, in each instance, the putative witness's testimony would not have had any effect on the outcome of the trial. The PCR judge thus concluded:
(a) Tracey (AKA Tracee) Harper. [Defendant] submits an affidavit of Tracey Harper, describing [defendant's] behavior in custody during his drug-related arrest and statement regarding the incident of April 5, 2001. It states that [defendant] appeared to be under the influence of drugs. . . . However, [defendant's] drug use upon his arrest was fully explored at a Miranda hearing . . . . At this hearing, [defendant] admitted to smoking marijuana laced with embalming fluid. Trial [c]counsel extensively examined [defendant] regarding the effects of consuming this substance . . [T]his Court ruled that [defendant's] statements were made voluntarily - not in response to custodial interrogation - and that Miranda was therefore not implicated.
Harper's testimony at trial would not have had any effect on the admissibility of [defendant's] statement regarding the incident of April 5, 2001. [Defendant] described his state of mind during his arrest and the effects of his drug use in great detail. Further, Dr. Azariah Esheknazi and Officer Anthony Cox testified at length as to [defendant's] behavior during his arrest. On the other hand, Harper's affidavit describes little more than observing [defendant] foaming at the mouth. The absence of this testimony does not rise to the level of an unreasonable failure on the part of trial counsel. . . .
(b) Kiana Roulette. [Defendant] submits an affidavit of Kiana Roulette, describing Roulette's attempts to convey new witness information to trial counsel. Roulette states that upon the presentation of this information, trial counsel asked Roulette to obtain the witness's phone numbers or procure them to appear at counsel's office. Roulette was unable to do so. Additionally, the affidavit does not state which witnesses Roulette refers to, nor provides any names. There is no evidence that trial counsel['s] failure to obtain these witnesses was unreasonable or that it had an adverse effect on the outcome of [defendant's] trial. . . .
(c) Dawn Simpkins. [Defendant] submits an affidavit of Dawn Simpkins, describing her account of the incident on April 5, 2001. [Defendant] contends that he requested trial counsel to interview Simpkins regarding this account and that trial counsel failed to do so. Simpkins indicates that she would have testified that she witnessed the victim batter and rob [defendant] before [defendant] ran after the victim. The physical altercation that led to the victim's death presumably followed this account. However, this testimony would not have exculpated [defendant]. Even if the victim was the aggressor, then this does not afford [defendant] the right to chase after the victim and use deadly force. This testimony would have had no effect on [defendant's] culpability. . . .
(d) Tonya Jones. [Defendant] submits an affidavit of his own, describing additional details about Tonya Jones, a trial witness for the State. Jones drove [defendant] and co-defendant to and from the scene of the accident on April 5, 2001, and testified at trial that she witnessed the physical altercation between [defendant] and the victim. [Defendant] now alleges that Jones later claimed to have only testified for the State in order to avoid criminal prosecution as to her own involvement driving [defendant] and co-defendant. However, this issue was explored under oath at trial. Trial counsel asked Jones on two occasions whether pressure was placed on her by investigators and whether those same investigators discussed the possibility of accomplice charges being brought against Jones. Jones denied both, and [defendant] now presents no evidence - other than speculation - to suggest otherwise. Finally, [defendant] merely presents his own word, as Jones is unable to be located; Jones herself gives no information contrary to her testimony at trial.
In addition to counsel's failure to properly investigate the aforementioned witnesses, defendant also alleged in his PCR petition a number of deficiencies in trial counsel's pre-trial preparation, including failing to properly provide defendant with discovery at and prior to trial; failing to visit defendant more than four times during the two-year period prior to trial; failing to take into account defendant's reading and learning disability; failing to effectively cross-examine the State's medical examiner; and, finally, failing to properly raise a "passionate and provocative" defense. The PCR court flatly rejected each of these claims, finding them "vague," "speculative," and uncorroborated. Specifically,
[Defendant] does not provide specific examples of discovery that trial counsel failed to share with [defendant]. [Defendant] does not explain or elaborate on why trial counsel's number of visits to [defendant] had a direct effect on the outcome of the trial. Also, [defendant] does not establish that his reading and learning disability had any effect on his or his trial counsel's ability to raise a defense. Further, this issue was examined at [defendant's] Miranda hearing. [Defendant] also provides no new information or corroborated facts that trial counsel's cross-examination of the State's medical examiner was insufficient or that it had an effect on the trial's outcome or, specifically, the State's ability to prove its case beyond a reasonable doubt. Finally, [defendant] does not establish that trial counsel failed to raise a passionate and provocative defense. All indications are that [defendant] enjoyed the advice and guidance of a reputable and competent attorney . . . .
On appeal from the denial of his PCR petition, defendant raises the following arguments:
I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED FROM A TRIAL IN WHICH THE JURY WAS UNABLE TO FAIRLY ASSESS THE DEFENDANT'S CULPABILITY FOR THE CRIME OF SECOND DEGREE RECKLESS MANSLAUGHTER WAS VIOLATED.
II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND BECAUSE THE PCR COURT MISAPPLIED ITS DISCRETION IN ATTRIBUTING THE COMPLAINED ABOUT DEFICIENCIES OF TRIAL COUNSEL TO LEGITIMATE TRIAL STRATEGY.
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.
IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
In his first point, defendant, who was convicted of first- degree aggravated manslaughter, contends that the jury was unfairly precluded from considering his culpability of the lesser offense of second-degree reckless manslaughter because:
(1) the State charged him with a crime (i.e. murder) that could not be supported by the evidence; (2) the State failed to disclose its reasons for not charging Tonya Jones with a crime; (3) the State failed to adduce evidence that the victim had assaulted defendant; and (4) the prosecutor in summation misrepresented the law on self-defense and that Tonya Jones did not have an interest in testifying against defendant. All these claims could have been, but were never raised on direct appeal and, as such, are precluded from review now. R. 3:22-4. Clearly, post-conviction relief is "not a substitute for direct appeal." State v. Marshall, 148 N.J. 89, 146, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Because the issues raised in Point 1 could reasonably have been raised on direct appeal and resolved on a complete record without resort to outside materials, defendant is prohibited from asserting them now on collateral PCR review. R. 3:22-4(a).
We are further satisfied that enforcement of the procedural bar in this instance would neither result in a "fundamental injustice," nor contradict the federal or New Jersey constitutions. R. 3:22-4(a)(2), (3). Moreover, these claims, for the most part, were not even raised before the PCR court and therefore cannot be raised on appeal from that court's denial of defendant's PCR petition. State v. Robinson, 200 N.J. 1, 21 (2009); see also Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973).
Not only are these claims procedurally barred, they also lack substantive merit. The evidence clearly supported the charge of murder and therefore there was no abuse of the prosecutor's charging function. Several witnesses observed defendant, armed with a pipe, assault the victim, who died of blunt force trauma, and in his very own statement, defendant admitted to striking the victim with a pipe.
Contrary to defendant's next claim, there is simply no proof that Tonya Jones was promised leniency in exchange for her testimony or otherwise pressured or threatened into testifying against defendant. In any event, defense counsel had ample opportunity to fully explore the witness's possible bias during cross-examination.
Nor was the jury deprived of evidence of the victim's so- called aggressive behavior. Defendant's statement was read to the jury wherein he asserted that the victim had robbed him and had swung the pipe at him when defendant "jumped out on" the victim.
Lastly, the prosecutor's comment that self-defense did not apply to manslaughter had no potential to prejudice defendant. In the first place, defense counsel voiced no objection. More importantly, the jury was advised that the judge's instructions on the law were controlling and the judge's charge on murder, aggravated manslaughter, manslaughter and accomplice liability properly included an instruction on the defense of self-defense. Thus, the aforementioned issues, aside from being procedurally barred from PCR review, are substantively without merit.
On the other hand, defendant's claims raised in Point 2 of ineffective assistance of counsel for failing to investigate and call certain witnesses at trial and for other alleged deficiencies have all been fully adjudicated by the PCR court. As such, we review those claims against the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
First, defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
So measured, defendant has failed to satisfy both the performance and prejudice prongs of the Strickland test. We concur in the PCR court's rejection of defendant's claims of ineffective assistance of counsel substantially for the reasons stated by Judge Vazquez in his thoughtful and comprehensive written opinion of November 3, 2010 denying defendant's PCR petition.
We deem defendant's remaining claims to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).