STATE OF NEW JERSEY VS. MARVIN BROOKS (13-03-0706, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4223-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARVIN BROOKS, a/k/a SERB,
Defendant-Appellant.
____________________________
Submitted May 14, 2018 – Decided August 1, 2018
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
13-03-0706.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kevin G. Byrnes, Designated
Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Svjetlana Tesic,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Marvin Brooks appeals the trial court's March 16,
2017 denial of his petition for post-conviction relief (PCR) after
an evidentiary hearing. We affirm.
On October 27, 2012, defendant entered the apartment of his
former girlfriend (the victim). Defendant and the victim once
lived together, but defendant moved out after the couple had broken
up. The victim reported to the police that defendant called her
that morning and said he was coming over. While she was talking
on the phone with a friend, the victim saw defendant on the fire
escape, but he went away when he noticed her. Later, he was
banging on and kicking her apartment door and told her to let him
inside. She said she was not going to open the door and told him
to go away. Minutes later, he went onto the fire escape and
punched a window. He took a brick out of his pocket, broke the
window with it, and came into the apartment. Defendant hit the
victim with his hands and fists. They were fighting on the floor,
and defendant then stopped, stood up, and left. The police came
thereafter.
Defendant was charged with second-degree burglary, third-
degree eluding, and resisting arrest.1
At trial, the victim presented a different account, telling
the jury she had posted embarrassing naked photographs of defendant
on an internet website the day before the incident because she was
mad at him for being romantically involved with another woman. He
1
The resisting arrest and eluding charges were dismissed.
2 A-4223-16T1
had called her that morning and said he was coming over after she
refused to take the photographs down. When defendant arrived, he
knocked on her door and asked to enter. The victim initially
refused him entry, and he walked around to the back of the building
to the fire escape. He cracked a window with his hand and then
broke it with a brick. The victim testified she agreed to let
defendant into the apartment through the front door. Once inside,
they argued, and defendant assaulted her. She explained her
inconsistencies, stating she told the police defendant entered the
apartment without her consent because "she wanted [defendant] to
be locked up" and she "was mad because he put his hand on [her]".
Defendant conceded he entered the apartment and committed
assault but disputed he entered the apartment without consent, the
element that elevated the charge to second-degree burglary. He
argued the outcome hinged on which of the victim's stories were
credible.
Defendant was convicted of second-degree burglary and
sentenced to eight years in prison with an eighty-five percent
term of parole ineligibility. On direct appeal, we affirmed the
conviction, but remanded to correct an erroneous judgment of
conviction.
On January 19, 2016, defendant filed a petition for PCR,
asserting ineffective assistance of counsel because his counsel
3 A-4223-16T1
did not contact an eyewitness, Hassan Bethea, to testify at trial.
On March 16, 2016, the judge held an evidentiary hearing.
Bethea testified he lived diagonally across the hall from the
victim, and he clearly observed defendant and the victim in front
of the victim's apartment door. Bethea stated the victim appeared
to be laughing and defendant was a "little upset." He testified
the victim voluntarily allowed defendant into her apartment, but
he did not observe anything after the door was closed. Bethea was
not contacted about this incident until after defendant was
convicted.
Defendant testified Bethea observed the incident unfold, and
he told his trial counsel about Bethea during jury selection.
Under questioning by the court, defendant stated he raised Bethea
as a potential witness to his trial counsel when he realized the
"realness of the situation."
Defendant's trial counsel then testified. She stated she
represented defendant in three separate matters and remembered the
details of this case. In preparation for trial, she went to the
scene of the crime, spoke with defendant and the victim, reviewed
the police reports, and sent an investigator to talk to the
victim's neighbors, specifically those who called 9-1-1. The
investigator was unable to gain entry into the apartment complex
because it had a locked entrance, and therefore, the investigator
4 A-4223-16T1
did not interview anyone. Counsel testified defendant did not
identify any potential witnesses, except the victim, in
preparation for trial.
The court denied defendant's PCR petition, finding counsel
attempted to investigate, and defendant did not provide her with
a potential witness until jury selection. The court further noted
it was unclear what defendant told counsel at jury selection. The
judge found "defendant failed to provide the name or information
regarding [Bethea]. It was not that the attorney failed to explore
all avenues." The court reasoned Bethea was not presented "as a
viable, identifiable and firm witness that would have been
available to testify for him on his behalf." The court noted if
defendant had presented Bethea as a viable witness, counsel would
have testified to that effect at the PCR hearing, and the trial
record would have contained evidence of defendant's desire to have
Bethea testify. The judge found if Bethea had testified, the
outcome of the trial may have been altered because Bethea would
have corroborated the victim's trial testimony that she
voluntarily allowed defendant into the apartment.
This appeal followed, and on appeal, defendant argues:
TRIAL COUNSEL FAILED TO CONDUCT AN
INVESTIGATION THAT OBJECTIVELY REASONABLE
COUNSEL WOULD HAVE CONDUCTED, RESULTING IN
SUBSTANTIAL UNFAIR PREJUDICE TO THE
DEFENDANT'S CASE.
5 A-4223-16T1
To prevail on a claim of ineffective assistance of counsel,
2
defendant must satisfy the two-prong Strickland test: (l)
counsel's performance was deficient, and she made errors that were
so egregious counsel was not functioning effectively as guaranteed
by the Sixth Amendment to the United States Constitution; and (2)
"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." Strickland, 466 U.S. at
687; State v. Fritz, 105 N.J. 42, 52 (1987).
Under the first prong, "counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment." Strickland,
466 U.S. at 690. The court must determine whether the acts or
omissions of counsel "were outside the wide range of professionally
competent assistance." Ibid. Adequate assistance of counsel must
be measured by a standard of "reasonable competence." State v.
Jack, 144 N.J. 240, 248 (1996) (citing Fritz, 105 N.J. at 53).
Under the second prong of Strickland, defendant must prove
prejudice. Fritz, 105 N.J. at 52. He must show a "reasonable
probability" that counsel's deficient performance affected the
outcome of the proceeding. Strickland, 466 U.S. at 694. A
2
Strickland v. Washington, 466 U.S. 668 (1984).
6 A-4223-16T1
reasonable probability is defined as "a probability sufficient to
undermine confidence in the outcome." Ibid.We review a PCR petition with deference to the trial court's
factual findings. State v. Nash, 212 N.J. 518, 540 (2013)
(citations omitted). We "give deference to those findings of the
trial judge which are substantially influenced by his opportunity
to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." State v. Elders, 192 N.J.
224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). "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
(citation omitted). Nevertheless, all legal conclusions are
reviewed de novo. State v. Harris, 181 N.J. 391, 415 (2004)
(citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549
(2002)).
Defendant argues his trial counsel was ineffective for
failing to properly investigate and produce Bethea as a witness
at trial. According to defendant, the central issue was whether
the victim allowed defendant to enter her apartment and his counsel
was objectively ineffective for only interviewing the victim and
himself. Defendant also asserts the PCR court erroneously imposed
7 A-4223-16T1
an obligation on him to provide his trial counsel with all
information surrounding the crime. We disagree.
As to the first prong of Strickland, the PCR judge determined
defendant's trial counsel rendered effective assistance. The
judge found her a credible witness and noted she sent an
investigator to the scene of the crime to try to interview
neighbors. The judge found defendant did not tell counsel about
Bethea as a potential witness until jury selection, and it was
uncertain exactly what defendant told counsel about Bethea. The
judge reasoned if defendant had told counsel that Bethea was a
necessary witness, counsel would have testified to this effect at
the PCR hearing or the record from the trial would have indicated
either an attempt to bring Bethea in as a witness or defendant's
complaints about Bethea not being called as a witness. Without
such evidence, the judge thought it likely defendant may have
mentioned Bethea in passing as a potential witness and only truly
sought Bethea as a witness after trial when he fully realized the
gravity of the situation.
"A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time." Strickland, 446 U.S. at 689. Here,
8 A-4223-16T1
even if counsel only learned of the existence of Bethea during
jury selection, it is unclear how defendant presented him as a
potential witness. Counsel attempted to investigate and
interviewed the two known main witnesses – defendant and the
victim. Despite defendant's contention that it was counsel's
obligation to uncover Bethea as a potential witness, when
evaluating her performance from her perspective, she rendered
effective assistance of counsel because she investigated all known
leads at the time. Only with the benefit of hindsight does
defendant now contend her performance was ineffective.
Regarding prong two, the PCR judge found the outcome of the
trial may have been altered if Bethea was secured as a witness by
counsel. However, because we agree with the PCR judge that counsel
provided effective assistance, we need not consider the second
prong of Strickland. See Nash, 212 N.J. at 542 (noting a defendant
must establish both Strickland prongs) (citations omitted).
Affirmed.
9 A-4223-16T1