July 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SCOTT L. BAKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 95-07-0731.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 7, 2008
Before Judges Graves and Alvarez.
This is an appeal from the denial of defendant's petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant raises the following points:
JUDGE CITTA COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT-APPELLANT'S MOTION FOR POST CONVICTION RELIEF.
JUDGE CITTA COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT-APPELLANT'S REQUEST FOR AN EVIDENTIARY HEARING.
We reject defendant's contentions and affirm.
On June 17, 1997, a jury convicted defendant, Scott L. Baker, of conspiracy to commit second-degree armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count six).*fn1 On September 22, 1998, defendant was sentenced to life imprisonment subject to thirty years parole ineligibility on the first-degree murder, a consecutive sentence of twenty years subject to ten years parole ineligibility on the armed robbery, and a concurrent five-year sentence on the count five weapons charge. The conspiracy to commit second-degree armed robbery, count one, was merged with count two, first-degree armed robbery. The felony murder, count four, was merged into the purposeful and knowing murder, count three. Defendant's direct appeal was denied in an unpublished opinion, and his petition for certification was also denied on July 6, 2002. State v. Baker (Baker II), No. A-4991-98 (App. Div. April 4, 2002), certif. denied, 174 N.J. 192 (2002).
On March 31, 2003, defendant filed a pro se notice of motion for post-conviction relief (PCR). After a substantial delay occasioned by scant resources in the Office of the Public Defender, counsel was assigned and the matter briefed and argued. On December 15, 2006, the PCR judge rendered an oral decision denying defendant's motion.
The facts will not be set forth at length, as they are fully described in the direct appeal opinion, and are not necessary to this decision. Suffice it to say that defendant was charged with the brutal murder and robbery of a seventy-five-year-old female victim, whom defendant met through his employment as a home health aide. The victim's body was discovered in the trunk of her car, which had been abandoned in Lakewood with its lights on and motor running. The victim had employed home health aides to assist with the care of her eighty-one-year-old husband, who suffered from end-stage Alzheimer's disease. After the murder, police discovered that the victim kept significant amounts of cash in her home, and immediately focused their attention on the home health aides. Two co-defendants testified for the State, implicating defendant not only as the planner, but the principal actor who entered the home alone, and who later admitted to them that he stabbed the victim. As we said on the direct appeal, it was a close call for the jury in light "of the virtual absence of physical evidence linking defendant to the crime." Baker II, supra, slip op. at 9-10. As we also commented, however, "defense counsel thoroughly and persuasively demonstrated all [the] weaknesses in the State's case and thoroughly and persuasively exposed potential lack of trustworthiness of [co-defendants'] testimony. His representation of defendant was most commendable." Id. at 10.
Under the familiar test on an ineffective assistance of counsel claim, a defendant must first demonstrate that counsel's performance "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Second, a defendant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant contends that his attorney's decision not to call an expert forensic pathologist was error. Pre-trial, after conducting a hearing, the judge granted the State's request to be permitted to develop during the cross-examination of the defendant's expert forensic pathologist the fact that he was under indictment. After the ruling, defense counsel decided not to call any expert.
The defense pathologist would have testified that the murderer was left-handed; the State's pathologist testified the murderer was right-handed. Defendant is right-handed. Admittedly, in this close case, any possible defense theory was very important. But counsel's representation of defendant does not fall below an objective standard of reasonableness just because no expert was called.
On the record, defense counsel explained that because of the pending indictment, he did not want to call the pathologist as doing so could only harm his client's cause. When defense counsel informed the court of his decision, the trial judge commented "that given the present status of the case, I think your professional judgment was wise." We concur.
In his PCR petition, defendant has not provided anything which indicates that any other pathologist was or is available to testify in the manner desired by defendant, namely, that the assailant was left-handed. Absent such proof, to characterize counsel's performance as unprofessional is nothing more than a "bald assertion" which does not meet the Strickland standard. See Cummings, supra, 321 N.J. Super. at 170. Without proof that another pathologist was an option, defendant's contention is nothing more than sheer speculation - that had counsel looked for another expert, one would have been found. "[I]n order to establish a prima facie claim [of ineffective assistance of counsel], a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Ibid. Such a claim must be "supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. Nothing was supplied here. Therefore, this point is without merit, as the decision not to call the defense pathologist was prudent, and no proof has been offered that any other pathologist would have testified in the desired manner.
It is also argued that two witnesses who gave statements to police, Lorraine Wyatt and Harry Mathews, Jr., would have testified favorably to the defense, were known to counsel, and were not called. This assertion is also without merit for the precise reason enunciated in Cummings, supra, 321 N.J. Super. at 170.
Wyatt reported to police that sometime after 7:30 p.m. on the night of the murder she "saw a large vehicle parked across the street from her home with its lights on," and later "saw a black man running from the vehicle . . . carrying [a] brown type bag." Around 8:55 p.m., she noticed the car's lights were still on, and called the police. The car she saw was indeed the victim's car, however, defendant in no way explains how this witness's sighting of the victim's vehicle would have done anything other than corroborate the co-defendants' damning testimony.
Mathews told police that on the night of the murder he saw two white men park a red Lincoln Continental, similar to that driven by the murder victim, on the street where the victim's car was found. He described one of the men as walking with a "strut or a bop." Defendant, who is African-American, alleges that one of the co-defendants, who is white, has this distinctive walk.
Again, no certification or affidavit is supplied to the effect that Matthews would testify in the manner sought by defendant, nor does defendant proffer any explanation why the co-conspirator's presence would, of necessity, mean that he was not the murderer. This allegation is also the type of unsupported bare assertion that Cummings disallows as constituting a prima facie case.
Furthermore, the reports of the two potential witnesses are in conflict with each other. Even if called, their testimony would not have affected the outcome. Therefore, there is no merit to defendant's claim that the failure to call the two witnesses was ineffective assistance of counsel.
Defendant also contends counsel was ineffective because of his "refusal" to allow defendant to testify. Defendant allegedly decided not to testify because the "State threatened to call a [c]orrections [o]fficer to the stand to testify that [defendant] was hitting his head against the wall of his cell and that he was moved to a medical unit." Defendant asserts that trial counsel should have subpoenaed his correction records before giving him this advice.
It is unclear why, even if true, defendant's conduct while at the jail meant he could not testify. The records that were included in the appendix establish that defendant was observed hitting his head against a wall, but was only moved to a day room area and not a medical unit.
Most significantly, however, during the trial the court and defendant engaged in the following dialogue:
THE COURT: Mr. Baker, you have had an opportunity to discuss whether or not you'll testify as a witness with your counsel in this matter?
THE DEFENDANT: Yes.
THE COURT: Have you had sufficient time to discuss this question with them?
THE DEFENDANT: Yes.
THE COURT: And are you satisfied with the pros and cons that they've explained to you with regard to that matter?
THE DEFENDANT: Yes.
THE COURT: And what is your choice?
THE DEFENDANT: I choose to remain silent.
Defendant's statements contradict his assertion that he was coerced into remaining silent. Since defendant had prior convictions that would have been used for impeachment, the decision he made not to testify appears prudent, not the product of coercion. After all, jurors are advised when defendants with prior criminal convictions testify, pursuant to the model jury charge, that they may take them into account.*fn2
Lastly, defendant states his counsel was ineffective because he failed to make a motion for a new trial pursuant to Rule 3:20-1. As the rule states, such motions will be granted where "it clearly and convincingly appears that there was a manifest denial of justice under the law." Such motions must be based on the grounds that the verdict was "against the weight of the evidence." R. 3:20-1.
Remember our law permits a conviction to be received in evidence only for the purpose of affecting the credibility of the defendant and for no other purpose. [Model Jury Charge (Criminal), "Prior Conviction of a Defendant" (1994).]
The version currently used by trial courts Model Jury Charge (Criminal), "Credibility - Prior Conviction of a Defendant" (2003), is nearly identical.
Defendant does not suggest the basis upon which such a motion would have been granted. It is not enough to argue simply that the motion should have been made, it is also necessary to explain why the application would have been affected the outcome. The failure to file such a motion in a case where the credibility of co-conspirators was thoroughly attacked, and where credibility is the only substantial issue, is not an unprofessional error. Decisions relating to credibility are uniquely within the jury's province. See R. 3:20-1 (Before setting aside a verdict, the court must "give due regard to the opportunity of the jury to pass upon the credibility of the witnesses."). Accordingly, it was not unprofessional error to have failed to file a new trial motion in a case that turned on credibility. Even if it was error, defendant does not substantiate how the filing of the motion would have changed the outcome.
Because none of defendant's contentions have any merit, much less constituted a prima facie case, no evidentiary hearing was required. Preciose, supra, 129 N.J. at 462-63; Cummings, supra, 321 N.J. Super. at 169-70. Therefore, the motion judge's decision not to grant an evidentiary hearing must be affirmed.