NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-0145-19 A-2352-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KELVIN BARNES,
Defendant-Appellant. _______________________
DEWAN DENNIS,
Submitted January 31, 2022 – Decided July 25, 2022
Before Judges Messano and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-04-0545. Joseph E. Krakora, Public Defender, attorney for appellant Kelvin Barnes (Al Glimis, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Dewan Dennis (Steven M. Gilson, Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Daniel Opatut, Assistant Prosecutor, of counsel and on the briefs).
Appellant Dewan Dennis filed a pro se supplemental brief.
PER CURIAM
A jury convicted defendants Kelvin Barnes and Dewan Dennis of
conspiracy, three counts of murder, three counts of felony murder, multiple
counts of aggravated arson, and other related offenses. State v. Dennis and State
v. Barnes, Nos. A-1055-07; A-3147-07 (App. Div. Mar. 2, 2011) (slip op. at 2).
Three other co-defendants, Andre Thomas, Kareem Singleton and Tyhir Dennis,
entered guilty pleas prior to trial and testified against defendants.1 Id. at 2–3.
The judge sentenced both defendants to consecutive life terms of
imprisonment, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Id. at
1 Because Tyhir Dennis shares the same last name as one of the defendants, we refer to him throughout the opinion by his first name to avoid confusion. A-0145-19 2 2. We affirmed defendants' convictions and sentences on direct appeal. Id. at
3. The Court denied their petitions for certification. 207 N.J. 188 (2011).
Each defendant filed a petition for post-conviction relief (PCR) generally
alleging ineffective assistance of counsel (IAC). Two different Law Division
judges considered the respective petitions. On Barnes' petition, the PCR judge
ordered a limited evidentiary hearing as to whether trial counsel was
constitutionally ineffective for failing to investigate alibi witnesses. Barnes'
trial counsel and a defense investigator testified at the hearing , after which the
judge denied any relief.
The judge considering Dennis's petition denied relief without an
evidentiary hearing. Both defendants appealed, and we consolidated the appeals
for the purpose of issuing a single opinion.
I.
Using our prior opinion, we summarize some of the trial evidence as
necessary to address defendants' current arguments.
Rasheen Glover lived with his wife, Latonya Glover, as well as Latonya's son and her two daughters, . . . age seven, and . . . age six . . . . At approximately 3:00 a.m. on May 5, 2005, Latonya woke up coughing and discovered that her house was on fire. The flames and smoke were so thick that she could not see down the hallway to her children's bedrooms. She broke a window in her bedroom . . . , rolled off a roof and fell
A-0145-19 3 to the ground below. Looking up, she could see Rasheen still on the roof and then saw him run back into the house. Her son escaped from the burning house, but Rasheen, [and the children] died in the fire. [Id. at 3.]
Subsequent investigation led the State's expert to opine the fire was "consistent
with the delivery of an ignitable substance into the house by firebombing[.]" Id.
at 3–4.
Ultimately, the police investigation turned to Barnes, who was a friend of
Glover's cousin and "a foot soldier in the Bounty Hunter Bloods (BHB) street
gang in Trenton." Id. at 5. Dennis was the "'head person' in the BHB," who
"were 'supposed to be militant, no playing around, and . . . [were] supposed to
keep the label as the most infamous Blood set.'" Ibid. (alteration in original).
The gang put Barnes on "violation" and restricted his gang privileges when it
became known Glover disrespected him and Barnes did nothing about it. Id. at
6.
Barnes intended to shoot Glover, but Dennis said "killing Glover would
be the 'only way' Barnes would get off violation, and that Barnes had to burn
down Glover's house" using a Molotov cocktail. Ibid. Barnes agreed, and co-
defendant and fellow BHB leader Andre Thomas chose gang member Tyhir to
serve as Barnes' driver. Ibid. Barnes and Tyhir parked near Glover's house early
A-0145-19 4 in the morning, and "each threw a Molotov cocktail through the front window."
Ibid.
At trial, Thomas testified and confirmed Barnes' involvement in the triple
murder, and "Tyhir reiterated a statement he had made to the police admitting
his involvement in the triple murder." Id. at 7. "The State also proffered another
witness, Tremayne Johnson, a 'foot soldier' in the BHB." Ibid. Barnes "asked
Johnson to be the driver. Johnson refused, and after the firebombing, Johnson
talked with Thomas, who stated that Barnes and Tyhir were responsible for the
murders." Ibid. While Johnson and Tyhir were incarcerated together, Tyhir
told Johnson of his role in the firebombing. Ibid.
Singleton, another member of the BHB, also testified at trial. Barnes told
him he would get off violation by killing the guy who had disrespected him. Id.
at 7–8. "Singleton lent his car to Tyhir so that he could go with Barnes to '[g]o
kill the guy[.]'" Id. at 8 (alterations in original). Singleton said Dennis "called
a meeting shortly after the murders, when he determined that Barnes 'was hot'
and had to get out of town." Ibid.
Although not noted in our prior opinion, Barnes elected to testify at trial;
Dennis did not. Barnes confirmed that he had a verbal dispute with Glover in
public and that, as a result, Thomas put him on violation. Barnes further
A-0145-19 5 confirmed he told Thomas he would "shoot the guy" to get off violation, but
Thomas said "plans" had "changed," and he needed to "burn [Glover's] house
down." Thereafter, Barnes' testimony deviated from the accounts given by
Thomas and Tyhir. Barnes testified that he did not participate in the arson, but
instead left town on a bus for Delaware. Barnes said he left sometime in April
2005, and on the night of the arson, he worked an overnight shift at a McDonald's
restaurant in Delaware.
II.
To establish a successful IAC claim, a defendant must meet the two-prong
test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and
recognized by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A
defendant must first show "that counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Fritz,
105 N.J. at 52 (quoting Strickland, 466 U.S. at 687).
As to this prong, "there is 'a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance[,]' [and t]o
rebut that strong presumption, a defendant must establish that trial counsel's
actions did not equate to 'sound trial strategy.'" State v. Castagna, 187 N.J. 293,
314 (2006) (quoting Strickland, 466 U.S. at 689). "In some cases, whether
A-0145-19 6 counsel's conduct is reasonable 'may be determined or substantially influenced
by the defendant's own statements or actions.'" State v. Martini, 160 N.J. 248,
266 (1999) (quoting Strickland, 466 U.S. at 691). "[W]hen a defendant has
given counsel reason to believe that pursuing certain investigations would be
fruitless or even harmful, counsel's failure to pursue those investigations may
not later be challenged as unreasonable." Strickland, 466 U.S. at 691.
Additionally, a defendant must prove he suffered prejudice due to
counsel's deficient performance. Id. at 687. A defendant must show by a
"reasonable probability" that the deficient performance affected the outcome.
Fritz, 105 N.J. at 58. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015)
(quoting Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52). "[A] conviction is
more readily attributable to deficiencies in defense counsel's performance when
the State has a relatively weak case than when the State has presented
overwhelming evidence of guilt." State v. Gideon, 244 N.J. 538, 557 (2021).
We defer to a "PCR court's factual findings, given its opportunity to hear
live witness testimony, and '[an appellate court] will uphold the PCR court's
findings that are supported by sufficient credible evidence in the record.'" Id. at
551 (quoting State v. Nash, 212 N.J. 518, 540 (2013)). However, an appellate
A-0145-19 7 court "need not defer to a PCR court's interpretation of the law; a legal
conclusion is reviewed de novo." Nash, 212 N.J. at 540–41 (citing State v.
Harris, 181 N.J. 391, 415–16 (2004)).
Barnes' Appeal — A-0145-19
On November 2, 2006, prior to the start of trial and in accordance with
Rule 3:12-2(a), Barnes' trial counsel sent the prosecutor a notice of alibi,
attaching the names and addresses of five people, including Marjorie Barnes,
Katisha Smalls, and Kim Blake. The letter stated, "It is expected . . . each will
testify that [Barnes] came to Delaware in late April and stayed with his
grandmother and then his cousin until he was arrested on unrelated charges in
late May," and "each will testify that they saw [Barnes] in Delaware on or about
the date and/or time of the incident."
A.
Barnes submitted four certifications from three potential witnesses in
support of his PCR petition. Lawrence Barnes and Marjorie Barnes, in two
separate but nearly identical certifications, stated that "[o]n May 5, 2005, at 3:00
A.M., Kelvin Barnes was living in . . . Delaware with Katisha Smalls," and "[h]e
remained in . . . Delaware from March 2005 until he was arrested by the police
and brought back to New Jersey."
A-0145-19 8 Donald Powell, an investigator with the Office of the Public Defender
(OPD), submitted two certifications. Powell had spoken with Kim Blake over
the phone; Blake said, "Barnes would stay with her from time to time and on
May 5, 2005, at 3:00 a.m., he was probably living with her at her home in . . .
Delaware." Powell also spoke to Katisha Smalls, who told him that at the same
date and time Barnes was inside her Delaware house. Powell's second
certification asserted that he spoke to trial counsel who "indicated . . . that he
failed to interview any witnesses with respect to a potential alibi defense and
. . . did not generate any investigative reports."
The PCR judge reserved decision after hearing argument on the petition
and subsequently ordered an evidentiary hearing limited to "whether [counsel]'s
performance was objectively unreasonable in failing to elicit testimony from
putative alibi witnesses." Trial counsel was the first witness at the evidentiary
hearing, which took place before a different PCR judge.
Trial counsel, who was assigned the case through the OPD, recalled
Barnes offered him names of witnesses to support an alibi defense and also
recalled passing those names along to the State and the judge in the alibi notice.
Counsel specifically recalled speaking to Marjorie Barnes and Smalls, but he
determined the defense "just didn't work." Counsel concluded "the
A-0145-19 9 overwhelming weight of the evidence as adduced at trial and as developed prior
to trial was that this alibi was a ruse and that Mr. Barnes, in fact, did commit the
crime and then subsequently tried to deport himself to Delaware as a cover ."
Counsel was "very uncomfortable because the stories didn't seem to fit
together," and he felt obligated both to "avoid suborning perjury" and "also not
to put up a ridiculous defense" that would increase the likelihood of conviction.
Counsel remembered Barnes testifying on direct examination that he had worked
the overnight shift at McDonald's on the night of the fire, which was "factually
inconsistent" with the accounts counsel received from the alibi witnesses, and
he was unable to support either with independent evidence.
Counsel said his decision not to call the purported alibi witnesses was a
"strategic decision." Counsel was "pretty sure" he "discussed the alibi stuff"
with Barnes, and that he was uncomfortable calling Smalls and Marjorie Barnes
in particular as witnesses because of his "discomfort with what [he] was getting"
as support for the defense.
Counsel's examination of the file led him to believe he never hired an
investigator on the case, and he recognized there were no notes documenting his
conversations with the potential witnesses. But, counsel said he was "known
throughout the region never to have a file, never to carry notes," and that, in the
A-0145-19 10 2,000 criminal cases and 50 criminal trials he handled over his 18-year career,
he had a habit and "remarkable reputation" for "keep[ing] it all in [his] head ."
Counsel disputed Powell's certification, in which he said trial counsel admitted
never speaking with any potential alibi witnesses. Counsel said his defense
strategy was to shift blame from Barnes onto Dennis, but that "[t]here wasn't a
lot to work with" given the strength of the State's case.
Powell, who was ill, testified telephonically on the second day of the
evidentiary hearing, which occurred several months after the first day of the
hearing. Powell reaffirmed that trial counsel said he "never heard of the names"
of the potential alibi witnesses. He reiterated there were no investigative reports
of interviews with these alibi witnesses in the trial file.
Defendant also intended to call Smalls to testify on the second day of the
hearing, but she did not appear. PCR counsel said he was unable to subpoena
her because she was a Delaware resident, and he detailed for the record his
efforts to have her appear. Smalls confirmed with PCR counsel that she would
appear, but did not, and she had not responded to PCR counsel's voice mails and
text messages. PCR counsel also represented he did not intend to call Blake,
another alibi witness referenced by Powell, because her testimony would not
A-0145-19 11 "rise to a credible alibi defense especially in light of what . . . Smalls was able
to say."
In a comprehensive written decision, the PCR judge found trial counsel
testified in a truthful manner and was credible. The judge found Powell also
testified truthfully, but he gave the investigator's testimony only slight weight
because of its "derivative nature." The judge also noted Powell testified the
words he attributed to trial counsel in his certification were not counsel's exact
words, but rather were Powell's recollection of his interview documented six
weeks later.
The judge concluded it was "readily apparent [trial counsel]'s decision to
avoid submitting an alibi defense was not ineffective assistance of counsel, but
was instead a wholly proper strategic decision." Because the judge found trial
counsel's performance to be "plainly competent," he held Barnes had not met
the first prong of the Strickland test. The judge found trial counsel had
accurately determined the "tales" of Marjorie Barnes and Smalls were a "ruse,"
insofar as they were inconsistent with both the evidence counsel had reviewed
during discovery and with Barnes' own trial testimony. Specifically, Smalls
would have placed Barnes in her Delaware home at the time of the fire, but
Barnes testified he was working an overnight shift at McDonald's that night.
A-0145-19 12 The judge further found Barnes had "unilaterally chose[n] to testify, fully
cognizant of the fact no material aspect of his testimony could be corroborated."
On appeal, Barnes argues the PCR judge erred because the record
following the evidentiary hearing demonstrated trial counsel provided
ineffective assistance by failing to investigate defendant's alibi and failing to
move for a severance before trial. Barnes also argues PCR counsel provided
ineffective assistance because he failed to subpoena Katisha Smalls for the
evidentiary hearing, and the judge erred by not sua sponte issuing a subpoena
for her appearance. We reject these arguments and affirm.
B.
As to the alleged failure to adequately investigate or call an alibi witness
to support his trial testimony, reduced to its essence Barnes' argument is that the
judge should not have credited trial counsel's testimony that he spoke with two
of the alibi witnesses, because that assertion was unsupported by any documents
in the trial file. However, in considering a PCR judge's factual findings and
credibility determinations after an evidentiary hearing, the Court has cautioned,
"An appellate court's reading of a cold record is a pale substitute for a trial
judge's assessment of the credibility of a witness he has observed firsthand."
Nash, 212 N.J. at 540.
A-0145-19 13 Assuming arguendo trial counsel failed to investigate potential alibi
witnesses, including Smalls, that failure is clearly deficient performance and
cannot support a conclusion that counsel exercised sound trial strategy. State v.
Savage, 120 N.J. 594, 617–18 (1990). However, Barnes never produced a single
witness at the evidentiary hearing or any other documentary evidence that
supported the specifics of his Delaware alibi, i.e., he was working an overnight
shift at McDonald's when the arson occurred. Therefore, Barnes failed to satisfy
the second Strickland standard.
C.
Barnes also contends trial counsel provided ineffective assistance by not
moving to sever his trial from Dennis's trial because evidence of Dennis's
uncharged bad acts was improperly admitted pursuant to N.J.R.E. 404(b), and
that evidence substantially prejudiced Barnes at their joint trial. The PCR judge
considered and rejected this argument, noting Barnes raised the same claim on
direct appeal. He further found our prior opinion specifically concluded the
N.J.R.E. 404(b) evidence was properly admitted, and the trial judge's limiting
instructions adequately defeated Barnes' claim of undue prejudice. Dennis and
Barnes, at 19–28.
A-0145-19 14 As an initial matter, Barnes' claim is procedurally barred under Rule 3:22-
5 having been previously adjudicated on the merits. "In assessing whether there
has been a 'prior adjudication on the merits,'" for purposes of triggering this
procedural bar, "the challenged claim should be compared with the prior claim
to determine if the two claims 'are either identical or substantially equivalent.'"
State v. Marshall, 173 N.J. 343, 351 (2002). "If the claims are substantially the
same, the petition is procedurally barred." Ibid. The claim as now framed is
substantially equivalent to the claim brought on direct appeal.
Moreover, it is unlikely a severance motion would have been successful.
Rule 3:7-7 permits the State to charge two or more defendants in the same
indictment and in the same counts within an indictment. A defendant seeking
severance must demonstrate prejudice from a joint trial. R. 3:15-2. See State
v. Brown, 118 N.J. 595, 605 (1990) ("[T]he quantum of real prejudice is critical
in any determination to grant a severance."). As our opinion on Barnes' direct
appeal demonstrated, even though the judge admitted N.J.R.E. 404(b) evidence
about Dennis, Barnes suffered no prejudice from the joint trial. Trial counsel's
failure to assert a losing argument does not demonstrate deficient performance.
State v. Echols, 199 N.J. 344, 361 (2009).
A-0145-19 15 D.
Barnes also argues a new evidentiary hearing is necessary because the
PCR judge failed to sua sponte subpoena Smalls and compel her testimony at
the hearing. Barnes claims the PCR court had the inherent authority to issue the
subpoena pursuant to the Uniform Act to Secure the Attendance of Witnesses
from Within or Without a State in Criminal Proceedings, N.J.S.A. 2A:81-18 to
-23 (the Uniform Act).
The Uniform Act provides, in pertinent part:
If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this state, is a material witness in a prosecution pending in a court of record in this state, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required.
[N.J.S.A. 2A:81-20.]
"To obtain the relief provided for in N.J.S. 2A:81-20, defendant ha[s] the burden
of establishing that [Smalls] was a 'material witness.'" State v. Smith, 87 N.J.
Super. 98, 103 (App. Div. 1965).
A-0145-19 16 In Smith, we said a defendant must establish "at the preliminary hearing
upon his application, a showing that not only would [the witness] testify
favorably in his behalf, but also that such testimony would be material to his
defense." Ibid. (citing In re Cooper, 127 N.J.L. 312 (Sup. Ct. 1941)). In Smith,
we held that "conclusory oral statements by [the] defendant's attorney" as to
what the witness would say were insufficient. Id. at 104.
Here, defendant never suppled a certification from Smalls; only Powell's
certification summarizing a phone conversation he had with Smalls. Moreover,
Smalls told the investigator Barnes was in her home at the time of the fire, in
stark contrast to defendant's testimony at trial that he was working at
McDonald's. Smalls' purported testimony would not have been material to
defendant's claims if it was contradictory. Therefore, even if defense counsel
sought the court's intervention to compel Smalls' appearance at the evidentiary
hearing, which did not occur, it is unlikely the record provided sufficient
grounds to conclude Smalls was a material witness in the proceeding and the
judge should have issued compulsory process.
E.
Barnes also contends PCR counsel was ineffective for failing to compel
Smalls' appearance at the hearing. Logically, our rules set forth a different
A-0145-19 17 procedure for bringing ineffective assistance of PCR counsel claims, requiring
such claims be brought in a separate petition within one year of the denial of the
first PCR petition. R. 3:22-12(a)(2)(C). Moreover, based on our immediate
prior discussion, it is unlikely that based on the record before it, the PCR court
would have issued a material witness complaint against Smalls. PCR counsel's
failure to raise a losing argument during the proceeding does not equate to
deficient performance. Echols, 199 N.J. at 361.
In A-0145-19, we affirm the denial of Barnes' PCR petition.
Dennis's Appeal — A-2352-19
Dennis's first supplemental PCR petition asserted an IAC claim that trial
counsel suffered from an inherent conflict of interest, and that Dennis was
denied a fair trial because of juror misconduct. In a second supplemental
petition, Dennis alleged he did not testify at trial due to trial counsel's lack of
preparation, and trial counsel was ineffective for failing to secure Thomas's cell
phone records. In a third supplemental certification, Dennis said he smelled
alcohol on trial counsel's breath during court proceedings, and counsel admitted
having "a few drinks" during lunch.
Dennis provided certifications from Raymond E. Troxell and Anil Nayee,
both of whom trial counsel represented in Middlesex County. The certifications
A-0145-19 18 were filed by Troxell and Nayee in support of their PCR petitions, and both
averred trial counsel had alcohol on his breath during the proceedings in
Middlesex County.
Dennis's mother, Shirley Middleton, provided a certification in support of
the PCR petition. Middleton claimed Dennis's trial counsel was employed
previously by the Middlesex County Prosecutor's Office at a time when that
office was prosecuting Dennis for a drug offense. She brought her concerns
over this "conflict of interest" to Vernon Clash, the Deputy Public Defender in
the OPD's Mercer County Trial Region, but "no action" was taken.
Middleton also certified that during the trial she saw a juror speaking with
an unidentified person outside the courthouse. She did "not recall what
specifically the juror was sharing with this person," but the "juror was talking
about [her] son's trial." Middleton brought it to trial counsel's attention.
Lastly, Middleton certified that during a "lunch break" at trial, she saw the
trial judge and trial prosecutor together in a "restaurant in downtown Trenton."
Middleton said she overheard the judge say to the prosecutor, "if this comes
back to haunt us, we have a problem." Middleton claimed she told trial counsel
of the conversation.
A-0145-19 19 The PCR record included a 2005 memorandum to the trial file, in which
trial counsel, who acknowledged his employment by the Middlesex County
Prosecutor's Office at the time it was prosecuting Dennis for a drug offense,
stated he would check with the OPD "as to whether or not they still deemed it
advisable for [him] to handle this matter," and further he would "fully apprise
[Dennis] of [his] prior background and . . . get a waiver if he still desires me to
represent him."
In a later 2015 interview with a defense investigator, trial counsel stated
he did not prosecute Dennis's Middlesex County case, fully advised Dennis of
his prosecutorial background, and did not recall "any waiver being needed or
signed to represent" Dennis. Dennis asserted he was never asked to waive what
he contended was a disqualifying conflict of interest. Trial counsel also told the
investigator he did not recall having any conversation with Middleton about her
observations outside the courtroom, and he thought the report of a lunch meeting
between the trial judge and trial prosecutor during trial was "very unlikely."
Dennis further claimed the OPD Mercer County Trial Region, which
assigned the case to trial counsel, had an independent conflict of interest, i.e.,
LaTonya Glover was employed as a secretary in that office. In 2015, a defense
investigator spoke with Clash, the Deputy in charge of the Region. He told the
A-0145-19 20 investigator OPD protocol only required that a pool attorney represent Dennis,
which is why the case was assigned out of the office to trial counsel.
The judge considering Dennis's PCR petition denied relief without an
evidentiary hearing. We discuss below as necessary the judge's reasons
expressed in an oral opinion supporting her December 16, 2019 order.
On appeal, Dennis raises several specific IAC claims, which we address
below. He also argues the PCR judge erred by not granting his discovery motion
seeking alleged exculpatory telephone records. In his pro se supplemental brief,
Dennis also presents an IAC claim against PCR counsel.
Dennis's IAC claims are: (1) both trial counsel and the OPD's Mercer
County Trial Region had disqualifying conflicts of interest; (2) counsel failed to
move to recuse the judge; (3) counsel failed to inform the judge of juror
misconduct; (4) counsel abridged defendant's constitutional right to testify; (5)
counsel consumed alcohol during the trial; and (6) counsel failed to peremptorily
challenge a juror. In his pro se supplemental brief, Dennis further argues trial
counsel was ineffective for failing to object to the State's improper religion -
based juror challenge.
A-0145-19 21 (1)
Most of these claims do not require extensive discussion. The PCR judge
concluded Middleton's assertion about juror misconduct lacked "corroborating
evidence that it even occurred" or "what the conversation was about." The judge
concluded "some vague assertion that a juror spoke to an unknown individual
about a trial does not . . . rise to the level of having a reasonable probability that
the result of the trial would have been different under Strickland." We agree.
Assuming Middleton's information was relayed to trial counsel, to justify
an evidentiary hearing a "defendant 'must allege facts sufficient to demonstrate
counsel's alleged substandard performance.'" State v. Jones, 219 N.J. 298, 312
(2014) (quoting Porter, 216 N.J. 343, 355 (2013)). Dennis has not made the
required "strong representation that [he] may have been harmed by juror
misconduct," necessary before a court should invoke the "extraordinary
procedure" of permitting the questioning of a petit juror about deliberations.
State v. Harris, 156 N.J. 122, 154 (1998) (quoting State v. Koedatich, 112 N.J.
225, 288 (1988)).
In his certification, Dennis claimed trial counsel persuaded him not to
testify on his own behalf by telling him the jury would be told Dennis was a
leader in the BHB and had a prior conviction from Middlesex County. He
A-0145-19 22 asserted trial counsel failed to prepare him to testify. The PCR judge examined
the trial record and concluded the trial judge discussed with Dennis his decision
not to testify. She did not "find credible [Dennis]'s claims about . . . being
deprived of his right to testify," and also found defendant failed to meet the
second prong of the Strickland test, because he failed to explain what his
testimony would have been if he had testified.
In State v. Ball, we affirmed denial of the defendant's PCR petition
without an evidentiary hearing where the record showed that "regardless of
whether defendant was advised by counsel" of his right to testify, "the trial judge
fully explained" the right to defendant, along with "the possible consequences
of his choice and the option to have the jury instructed to draw no inference from
defendant's choice not to testify." 381 N.J. Super. 545, 557 (App. Div. 2005).
The record in this case similarly belies Dennis's IAC claim in this regard.
Regarding counsel's consumption of alcohol during trial, the PCR judge
held that "consumption of alcohol by an attorney is not in and of itself
dispositive of an [IAC] claim," and found "no indication that trial counsel has
ever admitted to having an alcohol problem or did have an alcohol problem or
was ever reprimanded by the bar for alcohol use." As to prong two of Strickland,
the judge found no prejudice, noting Dennis had not "point[ed] to a specific
A-0145-19 23 instance where the counsel's performance during trial fell below the professional
standard because of the alcohol consumption." We agree, and the argument
requires no further discussion. R. 2:11-3(e)(2).
So, too, do Dennis's IAC claims based on trial counsel's failure to exercise
a peremptory challenge, and trial counsel's failure to object to the prosecutor's
use of a peremptory challenge. The trial judge excused the juror, despite trial
counsel's decision not to exercise a peremptory strike; the juror never sat on the
trial. Barnes' counsel objected to the prosecutor's use of a peremptory challenge
to excuse a different juror based on race; the trial judge considered the
prosecutor's reasons and concluded there was no misconduct. Dennis's belated
argument that the prosecutor excused that juror on religious grounds lacks any
support in the record.
(2)
Two of Dennis's IAC claims require additional discussion. First, in
denying Dennis's claim that trial counsel had a disqualifying conflict of interest
because he was previously employed by the Middlesex County Prosecutor's
Office when it was prosecuting defendant, the judge held trial counsel's
representation did not violate Rule of Professional Conduct 1.11, pertaining to
conflicts of interest for former government attorneys. She also determined the
A-0145-19 24 OPD's Mercer Trial Regional followed "the proper protocol," and while the OPD
reserved some control over the representation, Dennis's petition "amount[ed] to
nothing more than vague, conclusory and speculative allegations of prejudice."
On appeal, Dennis argues the PCR judge failed to consider the "lethal
combination" of the two alleged conflicts had "a toxic 'potential impact'" on him .
For example, Dennis alleged in his certification that trial counsel rejected his
request to examine the phone records of co-defendant Thomas, telling Dennis
"the Public Defender's Office does not finance that kind of investigation work ."
When a petitioner has not established the prejudice prong, "the Sixth
Amendment guarantee is generally not implicated. . . . There are, however,
circumstances that are so likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified." United States v. Cronic, 466 U.S.
648, 658 (1984). In general, "only an extraordinary deprivation of the assistance
of counsel triggers a presumption of prejudice." State v. Miller, 216 N.J. 40, 70
(2013) (citing Bell v. Cone, 535 U.S. 685, 695–96 (2002)).
Regarding attorney conflicts in criminal cases, "in the absence of waiver,
if a potential conflict of interest exists, prejudice will be presumed resulting in
a violation of the New Jersey constitutional provision guaranteeing the
assistance of counsel." State v. Land, 73 N.J. 24, 35 (1977) (citing N.J. Const.,
A-0145-19 25 art. I, ¶ 10); accord Fritz, 105 N.J. at 60 n.2. Under our state's two-tiered
approach to constitutional deprivation of counsel claims predicated on conflicts
of interest, courts look first for a "per se conflict of interest," for which
"prejudice is presumed in the absence of a valid waiver, and the reversal of a
conviction is mandated." State v. Cottle, 194 N.J. 449, 462, 467 (2008). But,
"[m]any such potential conflicts will not warrant a presumption of prejudice
with the consequent automatic reversal of any criminal conviction suffered by
the client." State v. Drisco, 355 N.J. Super. 283, 294 (App. Div. 2002).
In In re Advisory Opinion of Professional Ethics No. 361, the Court held
an assistant county prosecutor who goes into private practice "may not represent
a defendant in any matter in which he participated while in the prosecutor's
office . . . includ[ing] any aspect of investigation, trial preparation," or in any
matter "for which he had any responsibility" or "had acquired any knowledge of
any particular matter." 77 N.J. 199, 207 (1978) (emphasis added). Trial counsel
did not represent Dennis on the matter pending in Middlesex County, nor did
that office prosecute Dennis for the homicides. There was no per se conflict of
interest, and Dennis failed to demonstrate actual prejudice resulting from the
alleged conflict.
A-0145-19 26 With respect to the OPD's alleged conflict, per statute, the OPD has
authority "whenever needed . . . to provide independent counsel to multiple
defendants whose interests may be in conflict." N.J.S.A. 2A:158A-9. That is
the procedure the OPD ordinarily follows to resolve a conflict of interest, and it
is the procedure the Supreme Court has directed should be "the norm." State v.
Bell, 90 N.J. 163, 174 (1982). We reject Dennis's IAC claims based on trial
counsel's or the OPD's alleged conflicts of interest.
(3)
We come to a troublesome issue — whether Dennis is entitled to an
evidentiary hearing based on Middleton's assertion that she overheard a
conversation between the trial judge and trial prosecutor, who were together
during a lunch break in a Trenton restaurant, and she brought it to the attention
of trial counsel who did nothing. The State failed to address the claim during
oral argument before the PCR judge, and it fails to address the issue at all in its
appellate brief.
In rejecting the claim, the PCR judge found Middleton's allegations were
"uncorroborated," and the "lack of . . . evidence" did not satisfy the second
Strickland prong. The judge further found there was "no showing . . . this
alleged communication resulted in depriving [Dennis of] his right to a fair trial,"
A-0145-19 27 because he failed to allege "the judge sided with the prosecutor at every
instance" or "flaunted a relationship in front of the jury that he had with the
prosecutor."
We recognize "[a]ppearances matter when justice is dispensed . . . [and]
public perception that a judge might be partial to one party over another —
whether true or not — cannot be reconciled with the ideal of blind justice." In
re Advisory Letter No. 7-11 of the Sup. Ct. Advisory Comm., 213 N.J. 63, 66
(2013). To warrant disqualification of a judge, the Court has set out the
following standard: "Would a reasonable, fully informed person have doubts
about the judge's impartiality?" DeNike v. Cupo, 196 N.J. 502, 517 (2008).
Assuming arguendo the allegations in Middleton's certification were true,
there may have been grounds to disqualify the trial judge. See, e.g., Code of
Judicial Conduct, Canon 3, Rule 3.8 ("[A] judge shall not initiate or consider ex
parte or other communications concerning a pending or impending
proceeding."); Code of Judicial Conduct, Canon 3, Rule 3.17(B)(3)(d) ("Judges
shall disqualify themselves in proceedings in which their impartiality or the
appearance of their impartiality might reasonably be questioned, including . . .
[if] . . . [t]he judge has a social relationship with a party or a lawyer for a party
of a nature that would give rise to partiality or the appearance of partiality.").
A-0145-19 28 Furthermore, if Middleton brought the information to trial counsel's attention,
he was obligated to raise the issue during trial, and his failure to do so amounts
to deficient performance.
The PCR judge erred by placing any burden on Dennis to demonstrate
actual prejudice. Retroactive disqualification of a judge presiding over a
criminal trial warrants a reversal of the conviction and granting of a new trial
without inquiry into prejudice. See, e.g., State v. Perez, 356 N.J. Super. 527,
532 (App. Div. 2003) (invalidating the defendant's conviction upon finding the
judge should have recused himself due to comments about defendant's ethnicity
"that a reasonable person would take as reflecting bias"); State v. Kettles, 345
N.J. Super. 466, 471 (App. Div. 2001) (reversing conviction upon finding the
judge knew of disqualifying conflict of interest based on prior presentment of
the defendant's case to grand jury); State v. Tucker, 264 N.J. Super. 549, 554–
55 (App. Div. 1993) (reversing conviction where the trial judge, when an
assistant prosecutor, presented two cases involving the defendant before a grand
jury).
The sole issue, therefore, was whether the record before the PCR judge
demonstrated a prima facie case warranting an evidentiary hearing. "A prima
facie case is established when a defendant demonstrates 'a reasonable likelihood
A-0145-19 29 that his or her claim, viewing the facts alleged in the light most favorable to the
defendant, will ultimately succeed on the merits.'" Porter, 216 N.J. at 355
(quoting R. 3:22-10(b) (emphasis added)).
Here, the PCR judge found Middleton's certification was
"uncorroborated," which implied it was not credible. As in Porter, "the court
made credibility findings without hearing" any testimony. Id. at 356. Also, as
in Porter, the State offered nothing to rebut the certification. Ibid.
Under these circumstances, we are compelled to remand the matter to the
Law Division to conduct an evidentiary hearing on Middleton's claims regarding
an ex parte luncheon meeting between the trial judge and trial prosecutor during
trial, and, based upon the facts found at that hearing, whether Dennis
demonstrated trial counsel's performance was rendered deficient by not raising
the issue with the trial judge. We offer no opinion on the issue.
Dennis sought post-conviction discovery in the form of co-defendant
Thomas's cell phone records, arguing they would "disprove the alleged
telephonic communications" between Dennis and Thomas. In rejecting the
request, the PCR judge held this was not "the unusual case" in which "the right
to . . . discovery . . . should be compelled." The judge noted that Dennis failed
A-0145-19 30 to establish the State ever possessed the records. She reasoned even if the
records did not show communications between Dennis's and Thomas's phone
numbers, that was not dispositive as to whether they spoke to each other,
because either, or both of them, could have borrowed a phone or used a "burner
phone." Dennis reiterates the argument on appeal. We find it unpersuasive.
The Court recently addressed the issue:
[P]ost-verdict discovery requests fall within the discretion of the trial court: As we held in [State v.] Marshall, a trial court's inherent power to order discovery extends to post-conviction proceedings "when justice so requires." 148 N.J. [89, 269 (1997)]. But courts invoke that discretion "only in the unusual case," id. at 269–70, in recognition of the importance of finality, id. at 152.
[State v. Szemple, 247 N.J. 82, 97 (2021).]
"[W]here a defendant presents the PCR court with good cause to order the State
to supply the defendant with discovery that is relevant to the defendant's case
and not privileged, the court has the discretionary authority to grant relief." Id.
at 107 (quoting Marshall, 148 N.J. at 270). "Though Marshall did not define
good cause within the context of post-conviction discovery, other jurisdictions
have observed 'that a showing of good cause entails more than "a generic
demand for potentially exculpatory evidence."'" Ibid. (quoting Commonwealth
v. Williams, 86 A.3d 771, 786 (Pa. 2014)).
A-0145-19 31 Here, Dennis failed to show how the request for discovery was "a means
for vindicating actual claims," and the PCR court acted properly within its
discretion in denying the request for post-conviction discovery. Marshall, 148
N.J. at 270.
To the extent we have not otherwise addressed additional arguments
raised by Dennis, they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed in part; remanded in part for further proceedings consistent with
this opinion. We do not retain jurisdiction.
A-0145-19 32