The opinion of the court was delivered by: Walls, District Judge
Petitioner Robert E. Douglas ("Petitioner" or "Defendant") petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. §2254. The grounds for the Petition can be divided into the following categories: (1) denial of speedy trial rights; (2) erroneous reinstatement of indictment; (3) unconstitutional search and seizure; (4) unconstitutional arrest warrant; (5) inadequate representation, including denial of counsel, constructive denial of counsel and ineffective assistance of counsel; (6) denial of a fair trial, including prosecutorial misconduct, erroneous admission of evidence, erroneous jury instructions, failure to declare mistrial and verdict against the weight of the evidence; (7) denial of a direct appeal; (8) erroneous opinion by the Appellate Division; (9) denial of a speedy appeal and (10) deprivation of liberty. Respondent, State of New Jersey opposes the Petition. The Petition is denied on all grounds for the reasons stated herein.
On October 14, 1987, Defendant was charged in Essex County Indictment No. 3400-10-87, with two counts of murder, N.J.S.A. 2C:11-3a(1) and (2) (Counts One and Two); aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); possession of a handgun without a permit, N.J.S.A 2C:39-5b (Count Four); and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Five). He was convicted by a jury on all counts in a verdict returned on November 16, 1990. The jury elected not to impose the death penalty and on December 13, 1990, Defendant was sentenced to concurrent terms of life imprisonment with thirty years parole ineligibility on Counts One and Two and concurrent terms on the remaining counts. The trial court denied Petitioner's motion for a new trial.
The Superior Court, Appellate Division affirmed Defendant's conviction on June 23, 1995, and in doing so declined to consider several of Petitioner's constitutional claims because of the "undeveloped and incomplete" nature of the record and directed petitioner to seek post-conviction relief on those grounds. The New Jersey Supreme Court denied a petition for Certification on October 11, 1995. Petitioner filed a petition for habeas corpus relief in federal district court, which was dismissed on December 20, 1996 because Petitioner had not exhausted State remedies. On December 2, 1997, Petitioner filed a petition for post-conviction relief in Superior Court, Law Division, Essex County. On October 6, 1998 Hon. Alvin Weiss, granted Petitioner's request for post-conviction relief on the basis that he was denied his Sixth Amendment right to a speedy trial and dismissed the indictment.
The dismissal was stayed until October 22, 1998 to enable the state to file a Notice of Appeal to the Appellate Division, which was filed on October 7, 1998. On November 6, 1998, the post-conviction relief court ("PCR court") granted the state an extension of the stay until December 7, 1998. The state moved before the Appellate Division for an additional stay of the Order on November 13, 1998. Petitioner was released from prison on December 7, 1998. On December 14, 1998, the Appellate Division granted the state's motion. Petitioner was taken into custody on December 21, 1998, and released on his own recognizance until January 6, 1999. On June 17, 1999, the Appellate Division reversed the grant of post-conviction relief and reinstated his conviction, finding that Petitioner's right to a speedy trial had not been violated. On October 12, 1999, the New Jersey Supreme Court denied a petition for certification.
Factual Background Established At Trial
The following facts were stipulated at trial: At approximately 9:30 a.m. on August 8, 1987, Deborah Neal ("Neal") called the East Orange Police to report a shooting at 7 Chestnut Street, Apartment 2E in East Orange, New Jersey. She indicated that "Skeet", the occupant of Apartment 2D, was the shooter. The dispatcher informed the responding officer, Michael Brown, that there were two victims of a shooting in Apartment 2E, that the suspect possibly lived in Apartment 2D and that he might still be in the area.
Officer Brown, accompanied by Officers Tisdale and Powell, entered 7 Chestnut Street and found the door of Apartment 2E ajar. The officers conducted a search and found sisters Estella and Charlene Moore lying in the bedroom, each with multiple gun wounds. They did not find any other persons or weapons, however, they did recover a spent round under a radiator in the bedroom.
The officers then entered Apartment 2D, whose door was also ajar. Their visual search of the apartment did not reveal any weapons or persons. At 10:00 a.m. Captain John Armeno of the East Orange Police Department arrived and searched for weapons or "any other thing of evidentiary value" as he later admitted during trial. Captain Armeno confiscated a photograph of a man, whom he believed was the occupant of the apartment. The building manager confirmed the Captain's belief and explained that the man in the photograph was known as "Skeet". Sergeant Ronald Sepe then took the photograph to University Hospital, where the third shooting victim, Georgianna Broadway, was being treated.
When Sepe arrived at the hospital, he found Broadway lying on a stretcher in the emergency room with multiple gun wounds. She had been intubated and was having difficulty speaking. Sepe asked Broadway if she knew the person or persons responsible for the shooting. Broadway shook her head "yes" and said "Skeet". Sepe showed her the photograph of "Skeet" and asked her if that was the person responsible for the crime. Broadway nodded her head "yes" and began to cry.
Later that afternoon, an arrest warrant for Defendant's arrest and a search warrant for his apartment were executed. The application for the search warrant requested, among other things, seizure of photographs of Petitioner. At the hearings on the Motions to Suppress, Detective John Lee testified that he did not mention in the application for the search warrant that a photograph of petitioner had already been seized during an earlier search of the apartment. After obtaining the warrant police officers searched the apartment and seized various drug paraphernalia and cocaine, a Rolodex file, two black leather fighting gloves, and an empty black leather handgun holster. The officers examined the Rolodex and found Irving Gaskins' name listed.
On August 9, 1987, the day after the shootings, Sergeants Whitner and Sepe went to Gaskins' apartment in Newark, New Jersey. The officers were voluntarily admitted by a woman, who indicated that Defendant and Gaskins were in the living room. The officers informed Defendant that he was under arrest and they handcuffed him and patted him down. Defendant allegedly had a fully loaded six-shot .38 caliber revolver in his waistband and five additional .38 caliber cartridges in his right front pants pocket. Petitioner was then taken into custody.
Forensic tests proved that the fatal rounds and the bullets recovered at the crime scene had been fired from the revolver seized from the Petitioner.
Broadway testified at trial that on August 7, 1987 she visited the Moore apartment and smoked cocaine and drank alcohol with Charlene Moore until 5 a.m, when Estelle Moore returned to the apartment. At about 5:30 a.m. she and Charlene went to sleep in the bedroom. Broadway awakened some time later and heard Estella speaking to a man. Broadway testified that she questioned Charlene as to whom Estella was speaking. Broadway then recognized the voice as that of "Skeet," whom she had met for the first time the previous week. While Estella was in the bedroom with Charlene and Broadway, someone pushed open the door, fired six fast shots and shot each of them. Although Broadway heard the shots, she did not see the shooter. When Broadway noticed that Charlene and Estella had been shot and were dead, she immediately went home and told her roommate Deborah Neal that "Skeet" had shot her. Neal contacted the ambulance and police, however she never informed the dispatcher that Broadway did not see the shooter. Before being transported to the hospital, Broadway told the Responding Officer that "Skeet" had shot her.
Factual Background For Speedy Trial Violation
On August 9, 1987 Petitioner was arrested and a public defender from the Office of Public Defenders ("OPD") was immediately appointed to represent him. On November 18, 1987, Petitioner entered a plea of not guilty and the State served a notice of aggravating factors on him, which indicated that his case would be tried as a capital one. On January 21, 1988, the OPD notified petitioner that it would no longer represent him because its investigation revealed that he did not qualify as indigent. The OPD based this determination on the fact that Defendant owned a home with a market value of between $70,000 and $110,000 and he was expecting recovery from a pending civil action. At the time of the public defender's withdrawal, four witnesses had been interviewed.
Through a series of errors by the court and the OPD, it was difficult for Petitioner to appeal the withdrawal of appointed counsel. Defendant nonetheless objected to the OPD's determination and following hearings on February 2 and 16, August 18 and October 12, 1988, Judge Falcone determined that Petitioner was in fact indigent and instructed the OPD to represent him. *fn1 Consequently, Petitioner was without representation for approximately nine months following his indictment.
Shortly after this determination, Assistant Deputy Public Defenders Albert Kapin ("Kapin") and Joseph Krakora ("Krakora") were assigned to represent Defendant. Judge Falcone set September 18, 1989 for Defendant's trial, but the trial did not commence until September 11, 1990. Defense counsel argued several pretrial motions (i.e. identification, search and seizure) between September 6 and October 17, 1989. On December 21, 1989, Kapin and Krakora sent a letter to Judge Falcone to request that he set a date to decide their pretrial motions and to set a new trial date, as their ability to prepare for trial was being hampered by their uncertainty. *fn2
Because the judge did not respond to the defense attorneys' letter dated December 21, 1989, Kapin and Krakora filed a motion on February 22, 1990 to set a trial date and to reduce defendant's bail. *fn3 In the affidavit in support of the motion, the attorneys alleged that the delay had prejudiced Defendant in several ways (i.e. the death of a potential defense witness, Gaskins, in September 1989 and the absence of two defense witnesses, the Tuckers, who had moved to Australia). Gaskins' testimony had not been taken and preserved by the defense attorneys. *fn4 The judge entered an order which set the trial date for September 10, 1990. In May 1990, the trial court issued its decisions which denied all of defendant's pretrial motions to suppress certain evidence and to preclude certain identification testimony. Jury selection commenced on September 10, 1990 and the trial began on October 30, 1990.
Standard for Review Under 28 U.S.C. §2254
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. §2254. For any petitions filed after the effective date of AEDPA, courts are required to apply those amended standards. See Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000) (citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Under 28 U.S.C. §2254(a) (2001), a federal court is required to consider only petitions filed on behalf of individuals in custody pursuant to a state court judgment which are grounded on a violation of the Constitution or the laws or treaties of the United States. Moreover, the petitioner must "exhaust" all of his claims in state court before coming to federal court. See 28 U.S.C. §2254(b) (2001); Werts, 228 F.3d at 192.
The AEDPA increased the deference federal courts must give to factual findings and legal determinations of the state courts. See Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Under the Supreme Court's landmark case, Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), federal habeas corpus relief is denied to any claim which was adjudicated on the merits in a state court proceeding, unless such application:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Id.; 28 U.S.C. §§2254(d)(1) and (2)(2001).
As stated by the Court of Appeals for the Third Circuit, the federal habeas court must first determine whether the state court decision was "contrary to" Supreme Court precedent. See Keller v. Larkins, 251 F.3d 408, 417-418 (3d Cir. 2001). In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an unreasonable application of Supreme Court precedent. Id. The appropriate inquiry to be made under the "unreasonable application of" standard is "whether the state court's application of clearly established federal law was objectively unreasonable"; an incorrect application alone does not warrant relief. Williams, 529 U.S. at 409, 120 S.Ct. at 1521, 146 L.Ed.2d at 428.
The second prong requires the petitioner to show that the state court decision was based on an unreasonable determination of facts in light of the evidence presented at trial or at a hearing. Id. at 413; 120 S.Ct. at 1523, 146 L.Ed.2d at 430. However, factual issues determined by a state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. §2254(e)(1)).
I. Petitioner Was Not Denied His Right To A Speedy Trial
Petitioner asserts that he was denied his Sixth Amendment right to a speedy trial due to the delays in appointing counsel, bringing the case to trial, and filing an appeal. (Ground Three.) Petitioner contends that the three year, four month lapse of time between his arrest and sentencing violated his right to a speedy trial. The PCR court found that Petitioner was denied a speedy trial, granted post-conviction relief and dismissed the indictment. The Appellate Division reversed that decision and reinstated his conviction. See State v. Douglas, 322 N.J.Super. 156, 730 A.2d 451 (N.J. Super. Ct. App. Div.1999), cert. denied, 162 N.J. 197, 743 A.2d 849 (N.J. 1999).
Standard for Speedy Trial Violations
The Supreme Court established a flexible four-part balancing test to determine whether a defendant is denied his federal constitutional right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors identified in Barker are: (1) length of delay; (2) reason for delay; (3) defendant's assertion of his right; and (4) whether defendant was prejudiced by the delay. See Barker, 407 U.S. at 530-32, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 116-118. The Supreme Court explained that these factors should be considered on an ad hoc basis and that no single factor is "either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Rather, they [are] to be treated as related factors to be considered with such other circumstances as may be relevant." Id. at 533, 92 S.Ct. at 2190, 33 L.Ed. 2d at 118.
The first factor, the length of delay, is the triggering mechanism: once the length of delay becomes presumptively prejudicial, it triggers further inquiry of the remaining factors. See id. at 530, 92 S.Ct. at 2192. Whether a delay is presumptively prejudicial depends on the "circumstances of the case." Id. The second factor, the reasons for delay, is assigned varying weight:
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Id. at 531, 92 S.Ct. at 2192.
The third factor, defendant's assertion of his speedy trial right, gives evidentiary weight to the determination of whether that right was violated. Id. at 531-32. The fourth factor, prejudice to the defendant, should be assessed in light of the following three interests: "(I) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id. at 532, 92 S.Ct. at 2193. Impairment of the defense is considered the most serious factor in the analysis. Id. "If witnesses die or disappear during a delay, the prejudice is obvious." Id.
The Third Circuit articulated the legal standard of review for speedy trial violations as follows: "The district court's legal conclusions that [Petitioner] failed to establish a violation of his constitutional rights to a speedy trial or due process are reviewable de novo." Burkett v. Fulcomer, 951 F.2d 1431, 1437 (3d Cir. 1991) (citing Lesko v.Owens, 881 F.2d 44 (3d Cir. 1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990); see also Hakeem v. Beyer, 990 F.2d 750 (3d Cir.1993) (explaining that the balancing of the Barker factors is a legal issue subject to "plenary review"). However, "the factual findings underpinning these legal conclusions are reviewed for clear error." Burkett, 951 F.2d at 1437 (citing Monachelli v. Warden, 884 F.2d 749 (3d Cir. 1989)). The same standard of review applies to the Appellate Division's review of a PCR court's determination. Analysis
Here, the PCR court and the Appellate Division each applied the four-part Barker test, however the courts reached opposite conclusions of whether a speedy trial violation occurred.
The PCR court found that the thirty month delay between Petitioner's arrest and his trial date was presumptively prejudicial. See Hakeem v. Beyer, 990 F.2d 750 at 760 (3d Cir. 1993) (holding that a fourteen month pretrial incarceration was presumptively prejudicial). The PCR court attributed the delay to the court's and the OPD's failure to provide Petitioner with adequate assistance. The court explained that this delay should be weighted against the state even if it was for neutral, and not intentional reasons - "The fact that the Prosecutor may have had no part in this does not diminish that the defendant has certain sixth amendment constitutional rights. When the courts and/or the [OPD] drops the ball, that still affects the defendant's rights." (PCR Tr. at 97).
Further, the PCR court found that Petitioner asserted his right to a speedy trial. He was constantly complaining that he was not getting representation and "kept on continually crying out that he needed counsel and needed help. *fn5 (PCR Tr. at 97).
With regard to the final prejudice factor, the court emphasized the impairment on Defendant's ability to establish a defense. The court focused on the following facts: (1) this was a capital case requiring early preparation of a defense and adequate representation by counsel; (2) both the court and the prosecutor were aware that the OPD had withdrawn; (3) the court and the OPD suggested the incorrect appellate procedure regarding the withdrawal of representation and (4) Defendant was unable to rectify the situation because he was confined to his cell for 23 hours per day, had no counsel, little or no access to a law library, and no information about how to correctly appeal. The court also found that there were additional delays even after Petitioner was assigned counsel. As example, Counsel was unable to efficiently determine trial strategy or trial witnesses because of the courts delay of 14 months in deciding Defendant's pre-trial motions. (PCR Tr. at 95-96.)
Finally, the PCR court found that Defendant was prejudiced by the death of a potential witnesses, Irving Gaskins, in September 1989. According to a certificate prepared in connection with an investigative interview with Gaskins on July 6, 1989, Gaskins stated that he "did not see Mr. Douglas with any weapons." (PCR. Tr. at 98). Because one of the key pieces of evidence in the case was testimony from officers that the gun was found on Defendant's person at the time of his arrest, Gaskins testimony may have weakened the State's case. The PCR court explained:
[T]he Court cannot know whether or not Mr. Gaskins would have held up under cross-examination. But since this became the critical issue, the fact that this case was delayed so long and Mr. Gaskins, who was ill and everyone knew he was ill from the time the defendant was arrested died in September of `89 . . . Why the public defender didn't take his deposition or do something, the Court doesn't know. The Court doesn't even know whether the state would have consented to having the deposition taken of the matters. (PCR Tr. at 99).
In contrast, the Appellate Division applied the four-part Barker test and found that based on the evidence developed by the PCR court, Defendant was not denied his right to a speedy trial. First, the Appellate Division found that since capital cases in New Jersey are usually not tried for two years according to a governor's study, the three year delay in this capital prosecution did not by itself give rise to prejudice or a speedy trial violation. See State v. Douglas, 322 N.J.Super. 156, 171, 730 A.2d 451, 461 (N.J. Super. Ct. App. Div.1999) (citing State v. Long, 119 N.J. 439, 469, 575 A.2d 435 (N.J. 1990) (holding that 971 day delay did not violate petitioner's right to a speedy trial since the delay was attributable to the defendant, the pre-trial time was productively used, and it was necessary for defendant to prepare a list of mitigating factors.), cert. denied 162 N.J. 197, 173 A.2d 849 (N.J. 1999).
Second, the Appellate Division found that the PCR court placed too much weight on the OPD's withdrawal and Petitioner's difficulty appealing that decision. The court recognized that "no matter the reason for delay, `the ultimate responsibility' for bringing the case to trial `must rest with the government.'" Id. (quoting Barker, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). However, because the reason for delay here was not a deliberate attempt to hamper the defense, it should not be weighed so heavily against the government. See id. at 172. Although the Appellate Division acknowledges that the OPD and the trial court may have misapplied the new Public Defender statute, N.J.S.A. 2A:158A-151, in determining Defendant's indigence, it found that any such error could not be viewed as a "deliberate attempt to hamper the defense." Id.
With respect to the third factor, the Appellate Division emphasized the fact that Petitioner did not assert his right to a speedy trial until a motion for a specific trial date was made on February 22, 1990. That motion was essentially to ensure there was time to arrange for the Tuckers, two defense witnesses, to return from Australia. See id. The Appellate Division also relied on defense counsel's suggestion during his testimony that Petitioner "would have been prejudiced by a likely unsuccessful motion to dismiss on speedy trial grounds because of what would have had to be revealed in terms of contemplated trial strategy." Id. Further, the Appellate Division noted that the reason a motion for speedy trial was probably not made earlier was to give the defense counsel time to prepare the mitigating factors because if found guilty defendant must serve them immediately upon entry of the verdict. Id. at 171.
Finally, the Appellate Division did not find sufficient evidence in the record to suggest that Defendant was unduly prejudiced by the delay in the appointment of counsel. "Such proceedings would have, of necessity by virtue of the needs of the defense team in a capital case, carried beyond the death of Irving Gaskins or any other event which defendant points to as the basis for his claim of prejudice." Id. at 173. Although the motion for a new trial referred to Gaskins' death and possible prejudice if a trial date was not granted, the motion was not filed until about five months after Gaskins' death. See id. at 172. The court further noted that there was never an attempt to take Gaskins' testimony despite the statement he made during the investigative interview about Defendant not possessing a gun. The court determined that any prejudice concerning Gaskins' death would be speculative because it was not possible to determine whether Gaskins' testimony would have been persuasive after cross-examination. See id. at 174.
The Appellate Division ultimately concluded that in light of the compelling evidence against Defendant (i.e. Broadway's identification, the officers' testimony about the handgun being found on Petitioner, and the discovery of the holster in his apartment):
Gaskins' death (coming as it did after the Public Defenders' interview without an endeavor to preserve his testimony, the nature of Gaskins' statement regarding what he did not see without a fuller explanation of what he did observe, and the giving of the statement long before a motion was made to fix a trial date) does not warrant the granting of post-conviction ...