SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2459-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILLIPE BARTHELUS,

a/k/a PHILIPPE BARTHELUS,

Defendant-Appellant.

___________________________

Submitted June 9, 2022 – Decided June 23, 2022

Before Judges Mawla and Mitterhoff. 

On appeal from the Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 07-11-1010.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Steven M. Gilson, Designated Counsel, on 

the brief).

William A. Daniel, Union County Prosecutor, attorney 

for respondent (Meredith L. Balo, Assistant Prosecutor, 

of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Phillipe Barthelus appeals from June 28, 2019 and October 8, 

2020 orders entered following successive evidentiary hearings, regarding his 

petition for post-conviction relief (PCR). We affirm.

We recounted the relevant facts in our prior decision affirming defendant's 

convictions for the first-degree murder of Jamillah Payne, N.J.S.A. 2C:11-

3(a)(1), first-degree attempted murder of Khalid Walker, N.J.S.A. 2C:5-1 and 

N.J.S.A. 2C:11-3(a)(1), and other weapons and conspiracy offenses. State v. 

Barthelus, No. A-5012-10 (App. Div. Oct. 11, 2013) (slip op. at 2-3). The 

following facts relate to the PCR petition and this appeal:

The incidents at issue occurred on the night of July 13, 

2006[,] in and around . . . Payne's apartment, located on 

the fourth floor of a building in Elizabeth[,] . . . directly 

across the street from a park. The apartment was used 

as a "stash house" for drug dealers operating on the 

street and in the park.

Raquel Garcia lived in another apartment in the 

building. She was friends with co-defendant Wedpens 

Dorsainvil,[] who was a drug dealer in the area. Garcia 

frequently "held" drugs for Dorsainvil in her apartment 

and, in return, he would pay some of her bills. Garcia 

identified defendant as one of several men who sold 

drugs with Dorsainvil.

Garcia testified Dorsainvil came to see her on the 

morning of July 13, 2006[,] and told her he had been 

robbed at gunpoint earlier that morning by a group of 

men . . . . The men told Dorsainvil they "wanted him 

out of [Payne's] apartment," a location where he also 
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kept drugs. Garcia stated Dorsainvil was "pissed" and 

wanted to retrieve a "baseball size piece" of crack he 

had hidden in Garcia's apartment. Dorsainvil told 

Garcia to "[k]eep your eyes open, keep your ears open. 

Something isn't right. [Payne] isn't acting right. It's 

almost like she's turning on the hand that is feeding 

her."

Willie Smith had an apartment on the third floor 

of the building and sold cocaine in the park. He was 

acquainted with both Payne and Dorsainvil. In the 

evening of July 13, 2006, Payne called Smith and asked 

him to come up to her apartment. She sounded 

"disturbed a little bit." When he arrived at the 

apartment, Payne was sitting down in the living room 

and there were a number of men in the apartment with 

her, including Dorsainvil. Smith stated that Payne 

"looked different . . . . Face tones didn't look right." 

Smith asked Dorsainvil "what was going on," and he 

replied, "Fuck that. Don't worry about it."

Smith testified that Dorsainvil then went into the 

kitchen and returned with a handgun. When he returned 

to the living room, he fired the gun into the floor. This 

prompted Smith to jump out of the window to escape, 

fracturing his pelvis and suffering a punctured lung in 

the fall. As Smith was lying on the sidewalk, he heard 

three more shots being fired and saw Payne hanging 

from the window. He saw Payne fall to the ground near 

where he was lying. . . . Another individual, later 

identified as . . . Walker, then fell from the apartment 

window.

Walker, who admitted he was a member of the 

Bloods[ Gang], testified he had been in the apartment 

with five or six other men. At one point, he went into 

the bathroom to take a telephone call. While he was in 

the bathroom, three or four shots came through the 
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door; and one shot hit him in the leg. Someone kicked 

the door in and Walker saw one or two people in the 

doorway. Walker told the police that one of the men 

put a gun to his head and pulled the trigger, but the gun 

did not go off. However, Walker repudiated this 

statement at trial, explaining that the Bloods had a 

"code" that "snitches . . . die." Walker jumped out the 

bathroom window and landed in a pile of garbage. He

. . . denied seeing Payne fall from the apartment.

Payne's friend, David Kernodle, was walking on 

the street outside the apartment at the time of the 

incident. He heard a "crashing sound" and then saw 

Smith "coming out" of the garbage area by the building, 

holding his side, and limping. He looked up and saw 

Payne "hanging out of the window." She appeared to 

be "[t]rying to get back in." Kernodle testified he saw 

defendant standing in the window from which Payne 

was hanging. He knew defendant from the area and 

testified that defendant had distinguishing scars on his 

arms, which he could see from the street. Kernodle 

testified defendant pushed Payne and she fell to the 

ground. . . . 

. . . .

Maria Martinez lived in an apartment on the third 

floor. She heard gunshots and went to close her 

window. As she did so, she saw a group of people 

coming down the fire escape. Defendant then opened 

the window, came inside, gave Martinez "a slight push, 

to the side," and ran out the front door of the apartment. 

Martinez saw at least three other people run down the 

fire escape.

Back in her apartment, Garcia was lying in bed 

when she heard gunshots. Dorsainvil then called her 

and said, "I'm coming up. I'm coming up right now. 
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Open the door, open the door. Unlock the door." She 

let Dorsainvil in and saw that he had a "shirt with blood 

on it, a shirt balled up under his arm with blood on it, 

and . . . there were two guns in the shirt." Dorsainvil 

told Garcia, "I had to do it. I had to do it . . . I popped 

her." Dorsainvil further explained that Payne "knew 

too much" and, after he shot her, "they threw her out 

the window."

. . . . 

Several weeks after the murder, Lavar Davis 

came to Garcia's apartment. He told her he had been in 

Payne's apartment on the night of the murder. Davis 

explained that Payne had "turned on them" by 

becoming "Blood on another set" and had "betrayed 

them" by letting the men who had robbed Dorsainvil 

into the apartment. There was a confrontation between 

the men and Dorsainvil and his friends. Someone told 

Dorsainvil, "You want to die or are you going to get the 

F out of this apartment and get your shit and go." Payne 

began to head for the door, but Davis grabbed her hair 

"and told her she is not going nowhere." Davis told 

Garcia that Payne was shot and "pushed out the 

window," and . . . warned Garcia that "whoever talks" 

to the police "will get dealt with."

[Id. at 3-8, 10 (fourth, fifth, sixth, and eighth alterations 

in original).]

When police interviewed defendant, he first claimed he was not in 

Elizabeth at the time of the shooting, then stated he was "in the park playing

dice when he heard shots and saw people jump from the apartment window[,]" 

and then in a letter to the trial judge "admitted to selling drugs in the apartment 
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on the night of the murder, but claimed he 'ran[] for his life' when the shots were 

fired." Id. at 9-10 (second alteration in original). 

In State v. Barthelus, Nos. A-2954-15 and A-3324-15 (App. Div. Dec. 22, 

2017) (slip op. at 2) defendant and the State appealed from a March 9, 2016 

order denying defendant's PCR petition without an evidentiary hearing, but 

reversing the attempted murder conviction due to the trial judge's failure to give 

a limiting instruction concerning the testimony of a detective. We noted 

"Dorsainvil pled guilty to Payne's murder" and Walker's attempted murder, and 

shortly thereafter "gave defendant a written statement purporting to exculpate 

defendant from any involvement in Payne's murder and Walker's attempted 

murder." Id. at 5. "Dorsainvil alleged he conspired with . . . John Zepherin,

who was now deceased, to murder Payne. None of the witnesses who testified 

at defendant's trial identified Zepherin as one of the individuals present in the 

apartment at the time of the shootings." Id. at 5. Dorsainvil claimed Zepherin 

shot Payne, and Dorsainvil "shot at Walker . . . [and] defendant fled the 

apartment as soon as the shooting started and, therefore, was not involved in 

either offense." Id. at 5-6. 
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The PCR judge, who also served as the trial judge, rejected defendant's 

assertion Dorsainvil's statement constituted newly discovered evidence to 

warrant a new trial. Id. at 6. However, 

[o]ne of the themes defendant's attorney presented to 

the jury at trial was that the police improperly focused 

on defendant instead of investigating other suspects in 

the attempted murder of Walker. During her crossexamination of Detective Jorge Jimenez, the attorney 

attempted to advance this position by asking the 

detective a number of questions concerning his failure 

to pursue other leads. . . . Walker identified defendant 

as one of his assailants after participating in a photo 

array and, once that identification was made, the police 

had no need to look at other suspects. However, 

because the judge suppressed Walker's identification of 

defendant, the State could not present this information 

to the jury.

As defense counsel continued this line of 

questioning, the State began to object, and noted that 

the attorney was opening the door to allow . . . Jimenez 

to disclose that he "was in possession of information 

that implicated [defendant] as the second shooter in that 

apartment[.]" During several side bar conferences on 

this subject, the judge cautioned defendant's attorney 

that if she continued to seek to demonstrate that the 

detective had no basis for limiting the investigation to 

defendant, the State would be permitted to ask the 

detective on redirect whether he had information that 

caused him to believe defendant was the second 

shooter.

As the cross-examination proceeded, defense 

counsel identified a man, [Davis,] as a potential suspect 

and, through her questions, attempted to demonstrate 
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that . . . Jimenez failed to properly investigate him. On 

redirect, the judge permitted . . . Jimenez to testify that 

he did not have any information that led him to believe 

[Davis] was the second shooter. The State then asked 

the detective, "At that point were you in possession of 

information that [defendant] was, in fact, the second 

shooter in that apartment?" After the judge overruled 

defendant's objection, the detective replied, "Yes[,]" 

and the State asked no further questions about the 

subject.

Defense counsel did not request any limiting 

instruction concerning the jury's consideration of the 

detective's response and the judge did not issue a sua 

sponte charge on this testimony. In his PCR petition, 

defendant argued that his attorney provided him with 

ineffective assistance by continuing to pursue this line 

of questioning in the face of the judge's warning, and 

by opening the door to the State's introduction of 

improper hearsay evidence concerning the information 

the detective possessed.

However, the judge declined to consider 

defendant's ineffective assistance of counsel argument. 

Instead, on his own motion, the judge determined that 

he committed prejudicial error during the trial by not 

instructing the jury that the detective's statement that he 

possessed certain information "could not be used for the 

truth of the matter asserted; but solely for his state of 

mind of why he eliminated certain suspects versus 

others during the course of his investigation." In his 

direct appeal of his conviction for Walker's attempted 

murder, defendant did not challenge the failure of the 

judge to provide such an instruction. Nevertheless, the 

judge concluded that "[t]he omission of a limiting jury 

instruction warrants reversal of [defendant's] 

conviction for the attempted murder of . . . Walker."
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[Id. at 7-10 (second, third, sixth, seventh, eighth, and 

ninth alterations in original).]

We concluded the judge erred by overturning the attempted murder 

conviction because defendant did not raise the failure to give the sua sponte 

limiting instruction on direct appeal and was barred from doing so on the PCR. 

Id. at 14-15. We remanded for an evidentiary hearing to address the contention 

defendant did raise in his petition "that his trial attorney was ineffective for 

pursuing the line of questioning that led to . . . Jimenez's testimony that he had 

information pointing to defendant as one of Walker's assailants, and, after the 

judge raised the issue sua sponte, for failing to request a limiting instruction 

. . . ." Id. at 16.

Judge Regina Caulfield conducted an evidentiary hearing following the 

remand, heard testimony from defendant's trial counsel, and issued a detailed 

written decision. She found trial counsel testified credibly and "provided 

effective assistance to defendant during his trial." Counsel's questioning was

appropriate because she "attacked the credibility of each witness, questioned the 

adequacy of the police investigation, and highlighted the weaknesses in the 

State's case." Counsel challenged: the lack of DNA testing at the crime scene;

the credibility of a fact witness, by showing he would not be charged if he 

implicated others; and Kernodle's claim he could see the scars on defendant's 
10 A-2459-20

arms from a distance, the fact he did not make the claim in his initial statement 

to police, and only did so when he was facing charges. Counsel also crossexamined Jimenez about the fact he promised Davis would not be charged if he 

cooperated with the investigation. 

The judge found trial counsel's strategy was sound, stating:

Here, defendant had the right to establish that there was 

another individual present at the time of the shooting. 

In addition, his counsel had a duty to point out that 

[Jimenez] ignored . . . Davis's likely involvement in the 

shooting. To do otherwise would have been to abandon 

what appears to . . . have been a viable third[-]party

guilt defense. 

The judge also found trial counsel was not culpable for violating the trial 

judge's ruling not to elicit testimony regarding Walker's suppressed 

identification of defendant. Indeed, 

[w]hile the prosecutor may have been frustrated by 

defense counsel's emphasis on Davis's possible 

involvement in the shooting of Payne and Walker, he 

should not have been permitted to elicit what amounted 

to inadmissible hearsay from the detective on re-direct. 

At the very least, the trial court should have provided a 

limiting instruction to the jury stating that such 

testimony could not be used as substantive evidence of 

defendant's guilt, but only as to Jimenez's state of mind 

in deciding not to pursue Davis as a suspect in the 

incident.

. . . Instead of asking Jimenez about the existence of 

other evidence supporting the charges against 
11 A-2459-20

defendant, the prosecutor should have asked the 

detective if there was any evidence in the case which, 

in his opinion, supported . . . charges against Davis.

Without a limiting instruction "the jury . . . was left with the inescapable 

inference the defendant's identity as the second shooter of . . . Walker was 

provided by an unnamed, non-testifying witness." The jury was left to speculate 

that Jimenez had superior knowledge through hearsay information because 

[i]t is clear that such testimony was significant to the 

jury since there was a request that it be read back during 

deliberations. That request gave the court a second 

opportunity to provide a limiting instruction telling the 

jurors . . . that they could not utilize such testimony as 

substantive evidence of defendant's guilt, but only for 

an explanation . . . as to why Jimenez conducted the 

investigation in the manner he described.

The judge concluded trial counsel "did her job, and did it well. She pointed out 

that Jimenez had ignored a likely participant in the shooting" and this line of 

questioning did not "'open[] the door' to the detective being permitted to imply 

that he had secured other evidence supporting the charges against defendant." 

Further, "[p]ointing out the weaknesses in the State's case . . . , including 

highlighting that Davis was never charged . . . and may have shot at Walker, was 

a sound and reasonable trial strategy." 

Judge Caulfield found the record established a prima facie case of 

ineffective assistance of appellate counsel for not raising the issue of Jimenez's 
12 A-2459-20

testimony. She concluded the failure to do so could have prejudiced defendant 

"since there is a reasonable probability that . . . defendant's conviction for the 

attempted murder of Walker would likely have been vacated, had the issue been 

raised on appeal." She ordered a second evidentiary hearing, at which time

appellate counsel testified and then issued a thorough written opinion on 

October 8, 2020, granting defendant's PCR petition.

The judge found appellate counsel's testimony not credible and 

inconsistent. His testimony regarding the contact he had with trial counsel after 

the trial was selective and inaccurate, and lacked credibility in describing trial 

counsel's representation of defendant in an unflattering light. The judge noted 

he misrepresented the legal standard for raising PCR issues on appeal. 

Notwithstanding the credibility issues, the judge found appellate counsel's 

testimony credible regarding his admission "that, if he had realized [the trial 

judge] had not given a limiting instruction to the jury concerning Jimenez's 

hearsay testimony, he would have raised the issue in his appellate brief." 

Appellate counsel was ineffective because "he chose to forgo the subject of 

Jimenez's hearsay testimony on defendant's direct appeal, especially as it was 

presented to the jury twice without the benefit of a limiting instruction[;] . . . a 

clear appellate issue[.]" The judge concluded appellate counsel's "error led to 
13 A-2459-20

defendant suffering significant prejudice" and the "omission was obvious" 

because he "reviewed the transcripts and [trial counsel]'s brief [in support of a 

motion for a new trial, which addressed Jimenez's testimony at length] before 

submitting his appellate brief." 

Appellate counsel was aware of the import of the trial judge's failure to 

give a limiting instruction regarding Jimenez's hearsay testimony, because "he 

attached a copy of defendant's judgment of conviction . . . to his brief" showing 

he received a consecutive sentence for Walker's attempted murder. "Jimenez's 

hearsay testimony that he had information about defendant being the second 

shooter [w]as even more damaging than Kernodle's testimony about having 

heard about Payne's shooting from others[;]" an issue appellate counsel pursued 

on appeal. Moreover, "the issue was highlighted when the jury asked for this 

specific testimony to be read back" and "[i]t was the trial court's obligation to 

guide the jury as to the proper use of such testimony." The judge concluded 

appellate counsel's failure to raise the "related issues of the hearsay testimony 

provided by . . . Jimenez and the trial court's failure to provide a limiting 

instruction, [prejudiced] defendant since there is a reasonable probability that 

. . . defendant's conviction for attempted murder of Walker would have been 
14 A-2459-20

reversed" because "[t]he evidence of defendant's guilt as to defendant being the 

second shooter in Payne's apartment was not overwhelming."

Judge Caulfield held the omission of the limiting instruction only affected 

defendant's attempted murder conviction of Walker because the jury's read back 

request of Jimenez's testimony "clearly related" to Walker's shooting "and not 

the murder of . . . Payne or the other charges in the indictment." Further, 

"defendant's convictions for the other charges set forth in the indictment were 

supported by the evidence," including Smith, Martinez, Kernodle, and Garcia's 

testimony. 

Defendant raises the following point on appeal:

TRIAL AND APPELLATE COUNSELS' 

INEFFECTIVE ASSISTANCE MANDATES THAT 

ALL OF DEFENDANT'S CONVICTIONS BE 

REVERSED. 

Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to [the] PCR court's factual findings based on its 

review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). 

Where an evidentiary hearing has been held, we should not disturb "the PCR 

court's findings that are supported by sufficient credible evidence in the record." 

Ibid. We review the trial court's legal conclusions de novo. Id. at 540-41. 
15 A-2459-20

Pursuant to these principles and having thoroughly reviewed the record, 

we conclude defendant's argument lacks sufficient merit to warrant discussion 

in a written opinion. R. 2:11-3(e)(2). Judge Caulfield's findings of fact and 

conclusions of law that trial counsel was effective, and appellate counsel was 

not, is supported by the credible evidence in the record and unassailable. 

Moreover, her conclusion that appellate counsel's failures impacted only the 

attempted murder of Walker is likewise sound and does not merit our 

intervention. Defendant's other convictions clearly stood on separate evidence 

and appellate counsel's failure to raise the hearsay issue regarding Jimenez's 

testimony did not impact them. 

Affirmed.