STATE OF NEW JERSEY VS. MARCELLUS D. BARNES(09-09-1815, MONMOUTH COUNTY AND STATEWIDE)
A-3498-15T1
| N.J. Super. Ct. App. Div. | Jul 24, 2017Background
- Defendant Marcellus Barnes (then 30) was tried for sexual offenses after a 15-year-old, J.S., testified they twice had oral sex and intercourse; J.S.’s mother observed them and interrupted. Jury acquitted on sexual assault count but convicted on child-endangerment (engaging in “sexual conduct”).
- During deliberations the jury asked for the definition of “sexual conduct.” The trial judge replied that the term isn’t defined in the statute but “includes sexual assaults and sexual contacts,” and noted vaginal intercourse and fellatio would qualify. Defense objected to the judge’s use of “sexual contacts.”
- Barnes directly appealed; this Court affirmed and the Supreme Court denied certification. Barnes later filed a pro se PCR petition (with counsel) alleging ineffective assistance of appellate counsel (for not raising the jury-instruction issue) and ineffective assistance of trial counsel (for failing to obtain/investigate defendant’s cell phone/text messages).
- The PCR judge (who had presided at trial) held a hearing on the record, denied relief without an evidentiary hearing, finding counsel’s choices reasonable and no prejudice to defendant. Barnes appealed the PCR denial.
- The Appellate Division affirmed, holding appellate counsel’s omission was a reasonable tactical choice and did not prejudice Barnes, and that trial counsel was not ineffective because the record showed no discoverable exculpatory texts and any such messages would likely not have altered the jury’s verdict.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Barnes) | Held |
|---|---|---|---|
| 1) Whether appellate counsel rendered ineffective assistance by not raising the trial court’s jury-instruction response (use of “sexual contacts”) on direct appeal | Appellate counsel’s omission was a reasonable strategic choice; instructions read as a whole were correct and omission not prejudicial | Failure to raise the instruction error forfeited a meritorious claim that would have reversed the conviction | Denied: counsel’s decision was strategic; instructions were accurate in context and Barnes suffered no Strickland prejudice |
| 2) Whether trial counsel was ineffective for not obtaining/investigating defendant’s cell phone/text messages and whether an evidentiary PCR hearing was required | Detective’s report and forensic exam showed no text messages; counsel had no reason to believe exculpatory messages existed; no prima facie claim and no prejudice | Trial counsel failed to investigate potentially exculpatory messages from J.S. on defendant’s phone; an evidentiary hearing was required to explore this | Denied: record showed no texts recovered, trial testimony (J.S. and her mother) would not likely be overcome by alleged texts, so no prima facie showing or prejudice; no hearing required |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test: deficient performance and prejudice)
- State v. Fritz, 105 N.J. 42 (1987) (New Jersey adoption of Strickland standard)
- State v. Reddish, 181 N.J. 553 (2004) (jury instructions evaluated in context; verdicts need not be consistent)