                        NOT FOR PUBLICATION WITHOUT THE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
