STATE OF NEW JERSEY VS. ROBERT A. DAVIES (08-08-1867, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-1965-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT A. DAVIES, a/k/a BOB
DABIES, and ROBERT DAVIS,
Defendant-Appellant.
_______________________________
Submitted May 7, 2018 - Decided July 20, 2018
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment
No. 08-08-1867.
Joseph E. Krakora, Public Defender, attorney
for appellant (Amira R. Scurato, Designated
Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (John J.
Santoliquido, Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Robert A. Davies appeals from the denial of his
petition for post-conviction relief (PCR), contending he
established a prima facie case of ineffective assistance of
counsel requiring an evidentiary hearing. Because Judge DeLury
was correct in determining the evidence insufficient to sustain
defendant's burden, we affirm.
The tragic facts of this case are easily summarized.
Defendant insulted a Mexican man, Mario Chavez, in the men's
room of a bar in Margate in the early hours of an August morning
in 2007, by telling him "this was not his country and he should
leave." State v. Davies, No. A-5986-10 (App. Div. Nov. 20,
2014) (slip op. at 5-6). Chavez complained to the management,
and defendant left the bar.
Shortly thereafter, three of Chavez's friends, standing
outside, spotted defendant walking away and pointed him out to
Chavez. Chavez came up from behind defendant and punched him in
the head, knocking him to the ground. After a minute, defendant
got up and started to run after Chavez, who by that time was
walking back toward the bar. Chavez's friends called out a
warning that defendant was right behind him. As they watched
defendant start to chase their friend, they saw a light-skinned
man, whom they thought might have been African-American, who had
also witnessed the punch, cross the street and run after
defendant "really fast." They followed.
2 A-1965-16T2
When the light-skinned man caught up with defendant, he
tapped him on the shoulder. As defendant spun around, the man,
later identified as a British traveler, Lavern Ritch, put up his
hands and said, "I'm just trying to help." Another witness
heard those words and turned around to see defendant punch Ritch
and continue after Chavez. Defendant had not punched Ritch but
stabbed him, the knife penetrating a rib and the right ventricle
of Ritch's heart, killing him. When defendant, who never caught
Chavez, stopped running, another man asked him what happened, to
which defendant replied, "a Mexican snuck me."
Defendant successfully pursued a motion to represent
himself a year before trial. Defendant did so, with appointed
stand-by counsel, from that time until just before the State
concluded its case at trial. Then, citing exhaustion and
dissatisfaction with his cross-examination of one of the State's
witnesses, defendant relinquished counsel duties to stand-by
counsel, who represented defendant through verdict.
The jury acquitted defendant of murder, N.J.S.A. 2C:11-
3(a)-(b); aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1);
passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2); and
possessing a knife under circumstances not manifestly
appropriate for its use, N.J.S.A. 2C:39-5(d), but convicted him
of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1);
3 A-1965-16T2
third-degree possession of a knife with the purpose of using it
unlawfully against the person of another, which the judge
instructed the jury was the unlawful purpose of killing Ritch,
N.J.S.A. 2C:39-4(d); and fourth-degree possession of a weapon by
a convicted person, N.J.S.A. 2C:39-7(a). Id. at 2. The judge
sentenced defendant to an extended term of twenty years, subject
to the periods of parole ineligibility and supervision required
by the No Early Release Act, N.J.S.A. 2C:43-7.2. Id. at 2-3.
Defendant appealed, alleging the trial court made multiple
errors in instructing the jury, including, among others,
omitting any reference to the facts of the case in the
instruction on the failure to retreat portion of the self-
defense instruction, specifically that he knew Chavez was not
alone, but had friends, and that defendant had run over 220
yards and was out of breath when Ritch tapped him on the
shoulder; failing to give a special instruction on transferred
intent; failing, after the prosecutor argued in summation that
defendant intended to kill Chavez, to give a special instruction
on unanimity; erring in the instruction on causation as it
related to manslaughter; and misstating the unlawful purpose
element in the instruction on possession of a weapon for an
unlawful purpose. Defendant's counsel also argued the court
mishandled the bifurcated trial on the certain persons offense
4 A-1965-16T2
and that his conviction on that charge, after he was acquitted
of unlawful possession of the same weapon, was barred by
collateral estoppel principles, and that prosecutorial
misconduct in summation and cumulative error deprived defendant
of a fair trial.
Defendant filed two extensive supplemental briefs
elaborating on some of those points and raising several other
issues. Id. at 12-14. We affirmed defendant's conviction but
remanded for resentencing. Id. at 14. As to defendant's
multiple claims of error in the jury instructions, we found,
"[r]ead as whole, those instructions clearly conveyed the
essential elements of every crime the State was required to
prove beyond a reasonable doubt and all of the elements of self-
defense implicated by the evidence that the State was required
to disprove beyond a reasonable doubt in order to obtain the
guilty verdicts the jury returned." Id. at 16-17. The Supreme
Court denied defendant's petition for certification, State v.
Davies, 221 N.J. 287 (2015), and we affirmed defendant's appeal
of his sentence after remand on an excessive sentence calendar.
Defendant filed a petition for PCR, alleging ineffective
assistance of stand-by counsel for his failure to secure
ancillary services of an expert in order to allow defendant to
establish a diminished capacity defense, failure to call two
5 A-1965-16T2
material witnesses and failure to object to the prosecutor's
summation and to the jury charge. Judge DeLury denied the
petition in a comprehensive thirty-three page opinion, which
addressed each of defendant's claims in considerable detail.
The judge explained that no ineffective assistance claim
will lie for events occurring during the period in which
defendant acted as his own counsel. See State v. Ortisi, 308
N.J. Super. 573, 588 (App. Div. 1998). The judge further found
it was defendant's obligation to secure an expert witness, if
one was desired, not stand-by counsel's. The judge also noted
the correspondence in the record regarding defendant's rejection
of the expert the Office of the Public Defender retained on
defendant's behalf and that Office's clear direction to
defendant that it was his "obligation to identify, select and
negotiate with the experts [he] want[s] to testify." The judge
found choosing and working with an expert was a matter of trial
strategy, not trial procedure, and one of the responsibilities
defendant assumed when he determined to represent himself.
The judge ruled the decision to call fact witnesses at
trial, however, was one defendant ceded to trial counsel who
assumed defendant's representation near the end of the State's
6 A-1965-16T2
case, making analysis under the Strickland1 two-prong standard
appropriate. The judge rejected defendant's claim his counsel
was ineffective for failing to call the two people who told
police they only saw Mexican or Hispanic men running after
defendant and not the "light-skinned black male" as Chavez's
friends described Ritch.
The judge determined the decision not to call those
witnesses was a strategic one, see State v. Bey, 161 N.J. 233,
251 (1999), and could not have prejudiced defendant in any
event. The judge noted "[t]he knowledge of the two witnesses,
in believing all of the men following defendant, including
Ritch, were Mexican, does not translate to the defendant having
this knowledge." He found there was nothing in the record to
suggest defendant knew "he was being followed by anyone, let
alone that he believed he was being followed by a group of
Mexican men who were going to attack him."
Although deeming defendant's claims of ineffective
assistance relating to the jury charge as procedurally barred by
R. 3:22-4, because we considered them on direct appeal, Judge
DeLury nevertheless analyzed, and rejected, each one. He
likewise considered and rejected each of defendant's pro se
1
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
7 A-1965-16T2
claims and denied his request for an evidentiary hearing based
on his failure to have presented a prima facie case of
ineffective assistance. See State v. Preciose, 129 N.J. 451,
462-64 (1992).
Defendant appeals raising the following issues:
POINT I
THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION AT THE TRIAL LEVEL.
A. Counsel was ineffective for failing to
advocate for an expert and to advise
defendant on the process involved.
B. Counsel was ineffective for failing to
call two eyewitnesses.
C. Counsel was ineffective for failing to
object to the court's charge regarding the
"failure to retreat" portion of the self-
defense charge's failure to address the
facts of this case.
D. Counsel was ineffective for failing to
object to the prosecutor's argument in
summation that defendant was guilty of
intending to kill Mario Chavez instead of
Lavern Ritch.
E. Counsel was ineffective for failing to
request the proper jury instructions and for
failing to make a request to charge after
the prosecutor's summation.
8 A-1965-16T2
Our review of the record convinces us that none of those
arguments is of sufficient merit to warrant discussion in a
written opinion, R. 2:11-3(e)(2). The issues defendant raises
on appeal were addressed at length in our opinion on defendant's
direct appeal of his conviction and found unavailing. As to
defendant's claim that counsel erred in failing to call the two
witnesses, we explained there why "[t]he identity of the person
posing the threat was immaterial to the defense." Davies, slip
op. at 22.
Judge DeLury carefully considered each of defendant's
numerous claims. We agree with his finding that defendant
failed to demonstrate the performance of his trial counsel was
substandard or that, but for any alleged errors, the result
would have been different. See Strickland, 466 U.S. at 687-88.
Accordingly, we affirm the denial of defendant's petition
substantially for the reasons set forth in Judge DeLury's cogent
and well-reasoned written opinion of November 18, 2016.
Affirmed.
9 A-1965-16T2