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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3498-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCELLUS D. BARNES,
Defendant-Appellant.
_______________________________________________
Submitted July 13, 2017 – Decided July 24, 2017
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
09-09-1815.
Joseph E. Krakora, Public Defender, attorney
for appellant (Robert Carter Pierce,
Designated Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Paul H.
Heinzel, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Marcellus D. Barnes appeals from an order entered
by the Law Division on January 7, 2016, which denied his petition
for post-conviction relief (PCR) without an evidentiary hearing.
We affirm.
I.
A Monmouth County grand jury returned an indictment, which
charged defendant with second-degree sexual assault in violation
of N.J.S.A. 2C:14-2(c)(4), by committing an act of sexual
penetration upon J.S., while J.S. was at least thirteen years of
age, and defendant was at least four years older than J.S. (count
one); and third-degree endangering the welfare of a child in
violation of N.J.S.A. 2C:24-4(a), by engaging in sexual conduct
that would impair or debauch the morals of J.S. (count two).
Thereafter, defendant was tried before a jury.1
At the trial, J.S. testified that around 8:00 a.m. on July
8, 2009, she called defendant and invited him to come over to her
house because she was bored. J.S. knew defendant because he worked
at a nearby pizzeria. J.S. was then fifteen years old, and she had
a child who was one and one-half years old. Defendant was thirty
years old. Previously, J.S. and defendant had spoken to each other,
and they exchanged their phone numbers.
Around 9:00 a.m., defendant returned J.S.'s call and later
he went to J.S.'s house. They watched television in J.S.'s bedroom.
1
We refer to J.S. and others by their initials in order to protect
their identities.
2 A-3498-15T1
At some point, J.S. told defendant she wanted to do some "sexual
things." Defendant was reluctant and wanted to leave, but J.S.
insisted that he stay. She twice performed oral sex upon defendant,
and they twice engaged in sexual intercourse.
At around 10:00 a.m., J.S.'s mother T.N. returned home. She
testified that through the open bedroom window, which was located
over the front door, she heard J.S. moaning in a sexual manner.
T.N. also heard the baby screaming. T.N. grabbed a belt from her
car, entered the house, went upstairs to J.S.'s bedroom, and
observed J.S. and defendant engaging in sexual intercourse. The
baby was lying nearby on the bed. T.N. recognized defendant as the
deliveryman from the pizzeria. T.N. struck defendant on his back
and buttocks with the belt.
T.N. tried to stop defendant from leaving, but he pushed his
way past her and exited the house. T.N. called the police, and an
officer from the Asbury Park Police Department responded to the
house. The officer took J.S. to a hospital for a sexual assault
nurse examination; however, J.S. refused all tests because she did
not want to get defendant into trouble. She did, however, provide
buccal swabs for DNA sampling.
The jury found defendant not guilty on count one (sexual
assault), but guilty on count two (endangering the welfare of a
child). The trial judge thereafter denied defendant's motion for
3 A-3498-15T1
a new trial and sentenced defendant to parole supervision for
life. The judge ordered defendant to comply with Megan's Law,
N.J.S.A. 2C:7-1 to -23, and imposed appropriate fines and
penalties.
The trial judge entered a judgment of conviction dated
December 14, 2010. Defendant filed a direct appeal and raised the
following arguments:
POINT ONE
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR A NEW TRIAL BASED ON THE
PROSECUTOR'S IMPROPER AND PREJUDICAL COMMENTS
DURING SUMMATION AND OTHER ERRORS WHICH
DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT
TO A FAIR TRIAL.
POINT TWO
THE TRIAL COURT'S REFUSAL TO HOLD AN
EVIDENTIARY HEARING REGARDING THE
PROSECUTOR'S INTRODUCTION OF INFLAMMATORY
TESTIMONY REGARDING RUMORS THAT DEFENDANT HAD
AIDS WAS PREJUDICIAL ERROR MANDATING REVERSAL
OF HIS CONVICTION.
We rejected these arguments and affirmed defendant's
conviction. State v. Barnes, No. A-0587-11 (App. Div. Aug. 8,
2012) (slip op. at 11). The Supreme Court later denied defendant's
petition for certification. State v. Barnes, 225 N.J. 340 (2016).
On August 25, 2014, defendant filed a pro se petition for PCR
in the Law Division. The court appointed counsel to represent
defendant, and PCR counsel filed an amended petition, alleging
4 A-3498-15T1
that defendant did not have the effective assistance of trial and
appellate counsel.
On January 7, 2016, the PCR judge, who had presided at the
trial, heard oral argument on the petition and placed a decision
on the record. The judge determined that defendant failed to show
he was denied the effective assistance of appellate or trial
counsel, and defendant was not entitled to an evidentiary hearing
on his petition. The judge memorialized his decision in an order
dated January 7, 2016, denying PCR. This appeal followed.
On appeal, defendant argues:
POINT I:
THE PCR COURT ERRED BY DENYING [DEFENDANT'S]
PCR BECAUSE [DEFENDANT] ESTABLISHED BY A
PREPONDERANCE OF EVIDENCE THAT HE WAS DEPRIVED
EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE
TO COUNSEL'S FAILURE TO RAISE A JURY
INSTRUCTION ISSUE DURING [DEFENDANT'S] DIRECT
APPEAL, WHICH WOULD HAVE RESULTED IN THE
REVERSAL OF HIS CONVICTION.
POINT II:
THE PCR COURT ERRED BY NOT ORDERING AN
EVIDENTIARY HEARING ON [DEFENDANT'S] CLAIM
THAT HE WAS DEPRIVED EFFECTIVE ASSISTANCE OF
COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO
INVESTIGATE [DEFENDANT'S] DEFENSE THAT THE
VICTIM LEFT MESSAGES ON HIS CELL PHONE THAT
WERE EXCULPATORY.
5 A-3498-15T1
II.
We turn first to defendant's contention that he was denied
the effective assistance of appellate counsel because his attorney
did not raise an issue regarding the trial judge's instructions
to the jury on the endangering charge. Defendant contends that if
appellate counsel had raised this issue on direct appeal, his
conviction would have been reversed. We disagree.
To prevail on a claim of ineffective assistance of counsel,
a defendant must meet the two-prong test established 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). The first prong of the Strickland
test requires a defendant to show that his or her attorney's
performance was deficient. Strickland, supra, 466 U.S. at 687, 104
S. Ct. at 2064, 80 L. Ed. 2d at 693.
To do so, a defendant must establish that counsel's alleged
acts or omissions fell "outside the wide range of professionally
competent assistance." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed.
2d at 695. This requires a showing "that counsel made errors so
serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. at 687, 104
S. Ct. at 2064, 80 L. Ed. 2d at 693.
6 A-3498-15T1
To satisfy the second prong of Strickland, the defendant
"must show that the deficient performance prejudiced the defense."
Ibid. The defendant must establish "a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698.
As noted previously, in count two of the indictment, defendant
was charged with endangering the welfare of a child by engaging
in "sexual conduct" with J.S. The record shows that on the first
full day of deliberations, the jury sent the trial judge a
question, which stated, "What is the definition of sexual conduct
as it applies to count [two]?"
The judge responded by noting that the term "sexual conduct"
is not specifically defined in the jury instructions or the
relevant statute. The judge noted, however, that the term "clearly
includes sexual assaults and sexual contacts." The judge added
that engaging in vaginal intercourse or fellatio would meet "the
definition of sexual conduct under the statute."
Defendant's trial attorney objected to the judge's response
to the jury's question because the judge had mentioned "sexual
contacts" rather than "sexual conduct." The judge stated that his
response was based on a treatise, which states that the term
"sexual conduct" is not defined in N.J.S.A. 2C:24-4, but the term
7 A-3498-15T1
includes "sexual assaults and sexual contacts" as those terms are
used in the Code of Criminal Justice. See Cannel, New Jersey
Criminal Code Annotated, comment 2 on N.J.S.A. 2C:24-4 (2016-17).
Defendant argues that his appellate counsel should have
argued on direct appeal that the trial judge erred by instructing
the jury that defendant could be found guilty of endangering if
he engaged in "sexual contacts." He contends that, based on the
judge's instruction, the jury could have found him guilty of
endangering merely because he engaged in some "sexual contact"
with the victim. Defendant notes that the jury found him not guilty
on count one, which charged sexual assault by committing an act
of "sexual penetration."
The PCR judge determined that appellate counsel made a
reasonable strategic choice not to raise this issue on direct
appeal. The judge found that his initial instructions to the jury
on the endangering charge were proper. He noted that the initial
instructions were based on the model jury instructions and tailored
to the evidence presented at trial.
The judge also found that his response to the jury's question
as to the meaning of "sexual conduct" did not taint the initial
instructions. The judge noted that he had clarified that if a
person engaged in vaginal intercourse and fellatio, that would be
sufficient to support a finding of "sexual conduct."
8 A-3498-15T1
The judge stated that while the jury found defendant not
guilty of sexual assault, this was not evidence of jury confusion
because verdicts in criminal cases need not be consistent. The
judge said the verdict on the sexual assault charge might have
been the result of jury leniency, mistake, or compromise.
The judge concluded that even if appellate counsel erred by
failing to raise the issue on direct appeal, defendant did not
suffer any prejudice as a result of the error. The judge stated
that the argument that the response to the jury's question
constituted reversible error lacked merit, and the result of the
appeal would not have been different if defendant's attorney had
raised the issue.
We are convinced that the PCR judge correctly determined that
defendant had not been denied the effective assistance of appellate
counsel. As the judge found, appellate counsel made the reasonable
strategic choice to omit this argument and to focus on other
arguments counsel deemed to have a better chance of success.
Furthermore, as the judge found, defendant has not shown that
he was prejudiced by counsel's failure to raise this issue on
direct appeal. Defendant did not show that if this issue had been
raised, the appeal would have been decided in his favor. In his
instructions to the jury, the judge noted that the State had
charged that defendant endangered the welfare of J.S. by engaging
9 A-3498-15T1
in "sexual conduct," specifically vaginal intercourse and
fellatio.
The State did not allege that defendant had engaged in any
other conduct, which constituted "sexual conduct." In addition,
the judge had not mentioned "sexual contact" in his initial
instructions, and that term had not been defined in the
instructions. As the trial judge observed in addressing defense
counsel's objection, the jury would not have had any "frame of
reference" for the term "sexual contact."
Thus, viewed in their entirety, the instructions were
accurate and adequately conveyed the applicable legal principles
to the jury. State v. Reddish, 181 N.J. 553, 613 (2004). The record
supports the PCR judge's finding that the reference to "sexual
contacts" in his response to the jury's inquiry did not taint the
initial instructions.
We therefore conclude that the PCR judge correctly found that
defendant had not been denied the effective assistance of appellate
counsel.
III.
Defendant also argues that the PCR court erred by denying his
request for an evidentiary hearing. He contends he presented a
prima facie case of ineffective assistance of trial counsel. He
argues that his trial attorney failed to investigate the contention
10 A-3498-15T1
that J.S. had left messages on defendant's cell phone that were
exculpatory. Again, we disagree.
A hearing on a PCR petition is only required when a defendant
establishes "a prima facie case in support of [PCR]," the court
determines that there are disputed issues of material fact "that
cannot be resolved by reference to the existing record," and the
court finds that "an evidentiary hearing is necessary to resolve
the claims for relief." R. 3:22-10(b); see also State v. Porter,
216 N.J. 343, 355 (2013) (noting that under Rule 3:22-10(b), an
evidentiary hearing on a PCR petition is only required when a
defendant presents a prima facie case for relief).
In support of his petition, defendant submitted a
certification in which he stated that during his videotaped
statement, he provided the Asbury Park Police detective with
certain text messages on his cell phone. He stated that he had
more than one hundred text messages on the phone. He also claimed
that, at his bail hearing, he asked for his phone so that he could
retrieve allegedly exculpatory text messages that J.S. sent to
him. The prosecutor denied the request because the phone was
evidence.
Defendant also stated that he informed his trial attorney
about the phone and the alleged exculpatory evidence it contained.
He claims his attorney did not obtain the phone or investigate
11 A-3498-15T1
whether it contained messages from J.S. Defendant noted that the
prosecutor's office had performed a forensic examination of the
phone in attempt to retrieve child pornography. According to
defendant, the prosecutor did not attempt to retrieve J.S.'s text
messages.
In addressing this issue, the PCR judge observed that the
State had provided the defense with the forensic report, and the
detective's narrative report stated that no text messages had been
discovered on defendant's cell phone. The judge concluded that
because defendant's attorney was told that the alleged exculpatory
material did not exist, trial counsel had no reason to obtain
defendant's cell phone. The judge thus rejected defendant's claim
that his attorney was deficient because he failed to investigate
this claim.
The judge also found that defendant was not prejudiced by
counsel's failure to investigate. The judge noted that J.S. had
been a reluctant witness. J.S. testified at trial that she
performed oral sex on defendant, and she and defendant engaged in
sexual intercourse. Based on her testimony, the jury could find
that the sexual relations were consensual.
The judge pointed out that T.N., J.S.'s mother, had
corroborated J.S.'s testimony. The judge stated that whatever J.S.
12 A-3498-15T1
may have said to defendant in her text messages would not have
altered the jury's verdict on the endangering charge.
On appeal, defendant argues the PCR judge erred by finding
that his trial attorney was not obligated to undertake an
investigation of the messages that J.S. allegedly left on his cell
phone. He asserts that the State's forensic report indicates that
the State used software to examine the phone for "contacts, images,
and videos." He claims that the State did not use the software to
analyze the phone for text messages.
We are convinced, however, that the PCR judge correctly found
that defendant has not been denied the effective assistance of
trial counsel. As noted, the detective's narrative report stated
that no text messages had been found on the phone. Even if
defendant's counsel erred by failing to obtain the cell phone,
defendant has not shown that he was prejudiced by the error.
As the PCR judge noted, J.S. testified at trial that she
twice performed oral sex upon defendant, and she and defendant
twice had sexual intercourse. J.S. was a reluctant witness, and
she did not want to get defendant into trouble. Moreover, T.N.
testified that she entered J.S.'s bedroom and found J.S. and
defendant engaging in sexual intercourse. Therefore, it is highly
improbable that J.S.'s alleged text messages would have led the
13 A-3498-15T1
jury to reject J.S. and T.N.'s trial testimony and return a
different verdict on the endangering charge.
We conclude that the record supports the PCR judge's finding
that defendant had not presented a prima facie case of ineffective
assistance of counsel. The PCR judge correctly found that defendant
was not entitled to an evidentiary hearing on his petition.
Affirmed.
14 A-3498-15T1