NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 NO. A-2379-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GABRIEL C. BARNES,
Defendant-Appellant. _______________________
Submitted March 1, 2021 – Decided March 22, 2021
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-01-0178.
Ferro & Ferro, attorneys for appellant (Nancy C. Ferro, on the briefs).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Gabriel C. Barnes appeals from a January 21, 2020 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
Following a four-day jury trial in February 2015, defendant was convicted
of one count of second-degree conspiracy to commit armed robbery, N.J.S.A.
2C:5-2, N.J.S.A. 2C:15-1; four counts of first-degree robbery, N.J.S.A. 2C:15-
1; one count of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b); one count of second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a); and one count of fourth-degree conspiracy to
commit an act of false swearing, N.J.S.A. 2C:5-2, N.J.S.A. 2C:28-2. He was
acquitted of one count of fourth-degree false swearing, N.J.S.A. 2C:28-2.
On June 13, 2015, defendant was sentenced to an aggregate term of
eighteen years in prison, subject to an eighty-five percent parole ineligibility
period in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2.
We affirmed defendant's conviction and sentence in an unpublished
opinion. In our opinion, we explained why we rejected defendant's argument
that the trial court erred in denying his motion for a new trial, which he claimed
was warranted because, among other reasons, the prosecutor improperly
A-2379-19 2 "vouch[ed] for the credibility of [witness] Detective Lydell James." We also
found no merit to defendant's contentions relating to a photo array, a Wade
hearing,1 or his sentence. State v. Barnes, No. A-0210-15T1 (App. Div. Nov. 1,
2017) (slip op. at 2, 13). The Supreme Court later denied defendant's petition
for certification. State v. Barnes, 233 N.J. 216 (2018).
In our earlier opinion, we summarized the facts leading to defendant's
conviction. There, we stated the following:
At trial, the State presented several witnesses who testified that defendant and another man robbed them at gunpoint. Defendant also struck one of the witnesses several times in the head with the gun, which caused the magazine clip to fall out of the gun onto the ground. Defendant and the other man ran from the scene. They returned later in a pickup truck, lost control of the truck, hit a house, and again ran away.
The police found the magazine clip at the scene, and located the gun on the floor of the truck. Their investigation further revealed that defendant had reported the pickup truck had been carjacked and that the owner of the vehicle was defendant's uncle. After learning that a carjacking had not occurred, and because of the truck's connection to the robbery, the police placed defendant's photo into the array presented to the victims of the robbery. Several victims identified defendant's photo as the man who had robbed them at gunpoint.
[See Barnes, slip op. at 3.]
1 United States v. Wade, 388 U.S. 218 (1967). A-2379-19 3 We also noted that "four witnesses testified that two men robbed them and
that one of the men carried a handgun. Three of these witnesses signed sworn
statements that they identified defendant in a photo array as the man who was
carrying the gun when they were robbed." Id. at 11.
On January 23, 2019, defendant filed his petition for PCR and a supporting
certification dated January 9, 2019. In his certification, he asserted that his trial
counsel "failed to raise an important issue which would have placed the
credibility of the principal State[']s witness in serious doubt and could have
resulted in the suppression of his testimony."
Defendant stated that the principal witness against him was Detective
James, who testified that he did not know defendant, but was actually known to
defendant's family because the detective had been dating defendant's mother's
cousin. Defendant also added that after his arrest, his "mother met with
Detective James who propositioned her and made it clear that if she would
cooperate with him in a sexual tryst that he could take care of my case."
Defendant also certified that the "sexual meeting" never occurred and Detective
James testified against him.
According to defendant, the prosecutor argued to the jury there was no
reason for Detective James to conduct an improper photo array in this case
A-2379-19 4 because the detective did not know defendant. He contended that had the jury
known that the detective actually knew defendant and his family and entered
into an agreement with defendant's mother to exchange favorable treatment for
sex, it could have totally undermined the State's case against defendant.
Defendant further explained that his trial counsel knew about the situation
and was asked to raise it but did not. He added that his counsel should have
raised the issue so a hearing could have taken place to determine if Detective
James could testify and if so, his attorney should have called his parents to
challenge James' credibility.
In further support of his PCR petition, defendant filed a June 20, 2019
certification from his mother, Karen Parker. Parker explained when defendant
was arrested, she called the precinct to find out information about her son and
later received a call back from Detective James, who she knew on a social basis
through her cousin.
A few days after their call, Parker went to the precinct to discuss her son's
case. According to Parker, she waited outside by her car and after Detective
James came outside, they "talked for about twenty-five minutes about [her]
son[']s case and about things he could do to help [her] son which was in the
nature of a favor for a favor." Parker understood that to mean "that we would
A-2379-19 5 have sex and he would help my son get off this case because he was handling
the case."
Thereafter, Parker returned to the precinct "to have sex with Detective
James as we had agreed." She said they met on the second or third floor of the
precinct, and James showed her the paperwork about her son's case, including
pictures of her "son's line-up." He then walked her "to the back room" to have
sex, but the two did not consummate the agreement because he did not have a
condom. She said that after that, they agreed to contact each other in a few days.
Although Parker stated that they contacted each other through text, and
"exchanged several nude photos," they did not "go through" with their
agreement. Defendant's father, who was divorced from Parker but still lived in
the same home, discovered the text messages and was angry. He called the
police department's Internal Affairs Division but was "persuaded" by Parker's
cousin not to proceed with a complaint because it would not help defendant.
According to Parker, her cousin also convinced defendant's father not to report
it because James would lose his job.
Parker also certified that she told defendant's trial counsel about the
situation with Detective James, but trial counsel did not use the information.
Parker believed that the detective testified against her son because she did not
A-2379-19 6 go through with their agreement and James was "getting back at [her] as well as
[defendant's] father," because defendant's father contacted Internal Affairs.
Parker also explained that defendant was arrested in October 2014 on
different charges, this time a weapons offense, and that defendant gave a
statement in that case to Detective James. Parker told defendant's lawyer in that
case about her agreement with the detective and she testified at a 2016
suppression hearing, which occurred after defendant's trial in this case, about
the agreement. At that hearing, Parker read aloud an April 20, 2015 text between
her and the detective. She said "[the message] says, [r]eason we didn't fuck at
your job is because you didn't have any – any more condoms, mister. Oh, didn't
forget to say that my husband caught our pictures and fucked everything up."
She did not read any response from the detective.
In a recording of a telephone conversation between Parker and the
detective played at the hearing, Parker explained to James that she saw the
situation as "you really went hard on my son because of what his dad did" and
James replied, "Absolutely no . . . I coulda did things (indiscernible)." The
motion to suppress his statement was denied.
On January 3, 2020, the PCR judge in this case held oral argument on
defendant's petition. In his argument, PCR counsel acknowledged that the
A-2379-19 7 arguments surrounding the prosecutor's comments and the photo array were
rejected on direct appeal—but believed that if Parker's testimony and testimony
from defendant's father had been included at trial, "it would have been a very
different situation" and would have "cast a shadow over the integrity of the
whole trial." He argued that Parker's testimony would have "perfectly" fit into
trial because at trial the defense "impugned" the testimony of Detective James
and in summations, the prosecutor "felt compelled to vouch for him."
Specifically, the prosecutor sarcastically suggested in summation that
Detective James and the other investigators "woke up" and decided to frame
defendant for the robbery even though the detective had never seen him before.
PCR counsel also highlighted that the prosecutor represented in summation that
the detective did not know defendant beforehand, but according to Parker's
certification, Detective James met Parker at her cousin's party, and he knew the
family.
On January 21, 2020, the PCR judge issued a written decision and order
denying defendant's petition without an evidentiary hearing. The judge first held
that defendant failed to demonstrate that counsel's performance was deficient
"when measured by an objective standard of reasonableness" and failed to show
that "but for counsel's deficiency, the outcome of the proceeding would have
A-2379-19 8 been different." In reaching his decision, the PCR judge noted that defendant
claimed trial counsel was ineffective by not introducing the information from
Parker because it could have undermined the credibility of Detective James and
the integrity of the entire investigation, including the photo arrays. Moreover,
the PCR judge added that according to defendant, the value of Parker's testimony
was highlighted by defendant's trial counsel in his other criminal case calling
Parker as a witness at the suppression hearing for that matter.
In rejecting defendant's contention, the PCR judge explained that, while
not dispositive, the mother's testimony about the alleged agreement had already
been found incredible after she testified in 2015 in defendant's other weapons
offense case. The judge concluded that "[t]rial counsel may reasonably have
believed that a jury similarly may have found such conduct by Parker to render
her testimony incredible" at defendant's trial in this case.2
The PCR judge continued and explained that, in any event, while Parker's
testimony could have undermined Detective James' testimony, counsel may have
had any number of "valid strategic reasons not to raise the issue at trial." Citing
State v. Norman, 151 N.J. 5, 37 (1997), the judge explained that "[s]trong
2 As defendant properly notes on appeal, the suppression hearing actually took place in February 2016, after defendant's trial in this action, so his trial counsel could not have relied upon the judge's finding in that case. A-2379-19 9 deference is given to trial counsel because the reasoning of trial counsel is
typically unknowable in an application for PCR" and defendant had not
established "a substantial enough reason to overcome the strong presumption of
finding that trial counsel had acted within objectively reasonable professional
standards."
The judge also concluded that in light of the other evidence of defendant's
guilt, the failure to introduce Parker's testimony, even if the result of counsel's
error, did not prejudice defendant. Quoting from Strickland v. Washington, 466
U.S. 668, 694 (1984), the judge explained that defendant had to demonstrate
there was a "reasonable probability that [trial counsel's] deficiencies materially
contributed to defendant's conviction. . . . A reasonable probability is a
probability to undermine confidence in the outcome."
The PCR judge concluded that here the outcome would not have been
different if Parker had been called as a witness because the other evidence of
defendant's guilt was overwhelming and unrelated to Detective James'
testimony. The judge described the other evidence to include the in-court
identifications of defendant by one of the victims and another officer,
confirmation by an officer that defendant came to the precinct with a friend to
falsely report the carjacking of defendant's uncle's vehicle that defendant used
A-2379-19 10 in the commission of the crime, a handgun recovered from the truck and the
magazine matching the gun found, and photographs showing bruising on
defendant's face that was consistent with one of the victim's testimony that he
punched the man that robbed him in the face.
In light of this evidence, the PCR judge concluded "[t]he weight of all the
evidence on the record was substantial even when giving [defendant] the benefit
of discounting [Detective] James' testimony." As such, defendant failed to
establish that trial counsel's failure to introduce Parker at trial "materially
affected" the outcome of the trial. This appeal followed.
On appeal, defendant argues the following:
POINT I
THE COURT BELOW ERRED IN DENYING DEFENDANTS POST-CONVICTION RELIEF APPLICATION SINCE BOTH THE PROCEDURAL AND SUBSTANTIVE REQUIREMENTS WERE SATISFIED AND THE COURTS DECISION WAS BASED ON A SUBSTANTIAL FACTUAL ERROR.
Where, as here, the PCR judge has not conducted an evidentiary hearing,
we review the judge's legal and factual determinations de novo. State v.
Aburoumi, 464 N.J. Super. 326, 338-39 (App. Div. 2020). No deference is owed
to the PCR judge's legal conclusions. State v. Harris, 181 N.J. 391, 421 (2004).
A-2379-19 11 We begin our review by acknowledging that defendant correctly points
out that the PCR judge incorrectly described the suppression hearing at which
Parker testified to have been held before his trial in this matter. That hearing
was in fact held after defendant's trial. But, as the PCR judge clearly stated, the
fact that Parker was found to be not credible at the suppression hearing, which
evidently the PCR judge also presided over, was "not dispositive" of defendant's
petition. Contrary to defendant's assertion on appeal, the judge's error does not
warrant a reversal as the judge's reasons for denying defendant's petition
comported with the applicable legal principles.
"The standard for an ineffective assistance of counsel claim [(IAC)] is . . .
the same under both the United States and New Jersey Constitutions." State v.
Gideon, 244 N.J. 538, 550 (2021). To establish a violation of the right to the
effective assistance of counsel, a defendant must meet the two-part test
articulated in Strickland, 466 U.S. at 694, and adopted in State v. Fritz, 105 N.J.
42 (1987). "First, the defendant must show that counsel's performance was
deficient. . . . [And] [s]econd, the defendant must show that the deficient
performance prejudiced the defense." Strickland, 466 U.S. at 687.
To meet the first prong, a defendant must show "that counsel made errors
so serious that counsel was not functioning as the 'counsel' guaranteed . . . by
A-2379-19 12 the Sixth Amendment." Ibid. Reviewing courts indulge in a "strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance." Id. at 689. "[T]he defendant must overcome the
presumption that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" State v. Arthur, 184 N.J. 307, 319 (2005)
(quoting Strickland, 466 U.S. at 689).
An IAC claim based on counsel's failure to call a witness is subject to such
deferential review and a court must recognize "[d]etermining which witnesses
to call to the stand is one of the most difficult strategic decisions that any trial
attorney must confront." Id. at 320. In making this decision, counsel must
"consider what testimony a witness can be expected to give, whether the
witness's testimony will be subject to effective impeachment[,] . . . whether the
trier of fact is likely to find the witness credible, and a variety of other tangible
and intangible factors." Id. at 320-21.
"[L]ike other aspects of trial representation, a defense attorney's decision
concerning which witnesses to call to the stand is 'an art,' . . . and a court's
review of such a decision should be 'highly deferential.'" Id. at 321 (citations
omitted) (quoting Strickland, 466 U.S. at 689, 693); see also State v. Coruzzi,
189 N.J. Super. 273, 321 (App. Div. 1983) ("[T]he decision at trial as to what
A-2379-19 13 testimony to present is clearly a matter of trial strategy which is entrusted to the
sound discretion of competent trial counsel."). "Mere improvident strategy, bad
tactics or mistake do not amount to [IAC] unless, taken as a whole, the trial was
a mockery of justice." N.J. Div. of Youth & Fam. Servs. v. V.K., 236 N.J. Super.
243, 258 (App. Div. 1989) (quoting State v. Bonet, 132 N.J. Super. 186, 191
(App. Div. 1975)).
To meet the second prong, a defendant must show that counsel's errors
created a "reasonable probability" that the outcome of the proceedings would
have been different if counsel had not made the errors. Strickland, 466 U.S. at
694. "Prejudice means 'that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.'" State v. Nash, 212 N.J.
518, 542 (2013) (quoting Strickland, 466 U.S. at 687). The prejudice prong is
"far more difficult" and except in certain "egregious" circumstances, prejudice
must be proven, not presumed. State v. Preciose, 129 N.J. 451, 463-64 (1992)
(stating prejudice is more difficult to prove); Fritz, 105 N.J. at 61 ("[W]e
determine that a conclusive presumption of prejudice is inappropriate except in
cases exemplified by egregious shortcomings in the professional performance
of counsel.").
A-2379-19 14 "Under the prejudice prong, '[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different.'" Gideon, 244 N.J. at 550-51
(alteration in original) (quoting Strickland, 466 U.S. at 694). "A 'reasonable
probability' simply means a 'probability sufficient to undermine confidence in
the outcome' of the proceeding." State v. O'Neil, 219 N.J. 598, 611 (2014)
(quoting Strickland, 466 U.S. at 694). When determining whether a defendant
has shown prejudice, the court should consider the strength of the State's
evidence. See id. at 556; State v. Pierre, 223 N.J. 560, 583 (2015) ("Important
to the prejudice analysis is the strength of the evidence that was before the fact -
finder at trial.").
Applying these guiding principles here, we agree with the PCR judge that
not only did defendant not establish that his trial counsel's performance was
defective, but even if he did demonstrate that trial counsel's failure to call Parker
as a witness was a deficiency in trial counsel's performance, the failure to do so
was not prejudicial. The other evidence of defendant's guilt was indeed
overwhelming and unrelated to Detective James. For that reason, defendant
failed to satisfy Strickland's second prong. As defendant did not establish a
A-2379-19 15 prima facie claim of IAC, an evidentiary hearing was not warranted. State v.
Marshall, 148 N.J. 89, 158 (1997).
Affirmed.
A-2379-19 16