March 24, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH ANTHONY BAKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-05-00556.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Axelrad and Parrillo.
Defendant Joseph Anthony Baker appeals from the denial of his motion for post-conviction relief (PCR). We affirm.
Defendant was tried before a jury and convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a); first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); felony murder, N.J.S.A. 2C:11-3(a)(3); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). This was defendant's second trial. The jury was unable to reach a unanimous verdict on the first trial.
The trial court merged the manslaughter, robbery and possession of a weapon for an unlawful purpose convictions with the felony murder conviction and sentenced defendant to a life term with thirty years of parole ineligibility. The court also imposed a consecutive term of five years with two-and-one-half years of parole ineligibility on the unlawful possession of a weapon conviction. The mandatory fines and penalties were also imposed.
The matter arose out of the shooting death of one drug dealer -- the victim -- by another confessed drug dealer -- the defendant. We recite the facts as stated in our previous decision on direct appeal:
On the evening of September 23, 1999, at approximately 9:30 p.m., William Michael Baker (Baker or Baker senior) [defendant's father], walked with Carol Ann Lamanno and David Estrada toward the Sycamore Towers apartment building in Elizabeth with the express purpose of purchasing and thereafter using illicit drugs. The trio came across defendant and a stocky man with short hair and brown eyes at the intersection of Cherry and Orchard Streets. The latter two were on bicycles.
Following a brief, but "friendly conversation," defendant remarked, "[h]ere comes my man now," and bicycled across the street toward a laundromat with his companion. Defendant testified that he was selling drugs at the time, and had over one thousand dollars in cash on his person. According to Lamanno, a "Spanish man" on a bicycle, later identified as Nelson Rodriguez, approached defendant and the other man. The group engaged in a brief conversation, then proceeded to the alleyway near the laundromat.
After a few minutes, Baker and Lamanno heard "popping sounds" coming from the alleyway. Baker described the noise as a "loud . . . bang." Lamanno and Baker observed defendant and his first companion run from the alley, jump onto their bicycles and ride away. Defendant contended that he left the area shortly after the initial encounter with the victim and was therefore not involved in the shooting.
After seeing defendant leave the scene, Lamanno and Baker senior walked toward the alley. They found a person subsequently identified as Nelson Rodriguez dead. Baker recognized Rodriguez from unrelated drug purchases. Neither Lamanno nor Baker summoned emergency personnel to the scene. Police responded to the area after receiving reports of a gunshot. Rodriguez had sustained a fatal close-range bullet wound to the left side of his head, and gun powder residue lingered on his fingers. Police canvassed the area for witnesses and shell casings to no avail.
The next day, Baker spoke to Detectives Rudy Vines, Robert Hack, Ismael Olivero and Kevin O'Leary, and advised them of the events of the prior evening because he felt "disrespected" that his son might have committed a crime in his presence. Baker also told police that defendant "was out there to rob someone." Defendant made several requests asking his father to recant his statement. Although defendant asserted that Baker senior actually recanted his statements to the police, Baker senior disclaimed issuing a recantation.
The State also alleged that defendant told Cheronda Ingram, with whom he had a romantic relationship, that he "got into trouble" and that he "shot somebody . . . because he wouldn't act right." According to Ingram, she gave this information to police when threatened with arrest. Defendant disputed making these statements to Ingram.
On September 25, 1999, Detectives O'Leary and Olivero, along with several other detectives, located defendant in a public housing complex and transported him to police headquarters for questioning. Despite his refusal to sign a Miranda[ ] card, defendant agreed to answer the police questions about the Rodriguez shooting. He admitted that he was present at the corner of Cherry and Orchard Streets the day the victim was killed, but claimed to have been alone.
During this interview, defendant mentioned that his father, "'works for the cops, and . . . probably . . . [was] the one who said I was there.'" He then became visibly angry and stated: "'I can't believe my father put me in this position.'" Baker senior had in fact worked as a confidential informant for several members of the Elizabeth Police Department and had an extensive criminal history. In fact, on November 6, 2000, Baker senior pled guilty to the second-degree offense of a certain person not to have weapons, N.J.S.A. 2C:39-7, in exchange for a five-year sentence. He had not yet been sentenced at the time of defendant's trial.
A warrant for defendant's arrest was issued on September 28 or 29, 1999.[ ]
Defendant left New Jersey that very day for Massachusetts. Police eventually apprehended defendant in North Carolina on March 9, 2000. Defendant claimed to have been unaware of the warrant until his arrest.
Prior to his arrest, defendant met and began a relationship with Bobbie Lee Ellerbee in North Carolina. The couple had one child. According to Ellerbee, defendant told her that he "was on the run for murder," and that "he robbed somebody for some dope and some money" in an alley. He also told Ellerbee that he was on a bike in the alley with a Puerto Rican boy. They both had guns and that his gun went off at "the boy's head." At trial defendant denied making any of these statements to Ellerbee.
The State also introduced the following statement made by defendant in correspondence to Ellerbee which we reproduce here without editing:
As far as my time I don't think I will do too much. So don't worry, you and your baby will see me, again."
"Try to call Stephanie for me. I need to know everything Cheronda said to the pigs and tell her I said to tell my co-defendant to chill because I think we can beat it."
"As far as my pops he lock up, now. I saw the cat and he supposed to clean up the statement."
"These crackers is trying to drag me so I will break and say I did it, but never that, yo, I'm thugged out forever. I hate snitches, yo" . . . "As far as my pops, he took his first statement back and made the second one so that hurt these crackers case. So with my father they don't have shit. And just so you know I don't stress, yo. I used to when I was on the run."
[State v. Joseph Baker, A-5259, (App. Div. September 27, 2004).]
At trial, Ellerbee testified that defendant told her he held a gun to a boy's head, and the gun went off.
On appeal, we affirmed defendant's convictions but remanded to amend the judgment of conviction to run the five-year sentence on the third-degree unlawful possession of a weapon concurrent with the felony murder sentence. State v. Baker, supra, at 19-20. The Supreme Court denied defendant's petition for certification. State v. Baker, 182 N.J. 428 (2005).
Defendant filed a timely petition for post-conviction relief on March 21, 2005, alleging ineffective assistance of counsel, and, subsequently, a motion for new trial, alleging newly discovered evidence, namely that Ellerbee was pressured into giving a statement incriminating defendant. In an accompanying brief, defendant raised the following issues before the PCR court:
BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS MOTION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING ON THIS ISSUE.
A. Trial Counsel was ineffective when he failed to call at Petitioner's second trial witnesses who provided beneficial testimony for the defense at Petitioner's first trial.
1. Trial Counsel was ineffective for failing to call witness Pamela Kurzweil.
2. Trial Counsel was ineffective for failing to call witness Bilal Muhammad.
3. Trial Counsel was ineffective for failing to call witness David Estrada.
B. Trial Counsel was ineffective when he failed to arrange for an investigator to take a statement from William Michael Baker in light of the fact that he knew William Michael Baker had recanted his original statement incriminating Petitioner.
C. Cumulative errors denied Petitioner The Right to a Fair Trial.
BECAUSE NEW EVIDENCE HAS BEEN DISCOVERED WHICH IS MATERIAL, WAS DISCOVERED AFTER COMPLETION OF THE TRIAL AND WAS NOT DISCOVERABLE BY REASONABLE DILIGENCE BEFOREHAND, AND THAT EVIDENCE WOULD PROBABLY CHANGE THE JURY'S VERDICT IF A NEW TRIAL WERE GRANTED, THE COURT SHOULD GRANT PETITIONER'S MOTION FOR POST-CONVICTION RELIEF AND GRANT HIM A NEW TRIAL.
a. Within days after Petitioner was convicted, the State's key witness William Michael Baker received a sentence on his pending Certain Persons Not to Have Weapons charge that was more lenient than [w]hat witness and two assistant prosecutors who testified for the State had misled the jury to believe.
b. After Petitioner was convicted, State witness Bobbie Ellerbee disclosed that she had been coerced into making an involuntary and false statement by detectives of the Union County Prosecutor's Office against Petitioner.
STATE COERCION OF BOBBIE ELLERBEE TO PROVIDE AN INVOLUNTARY AND FALSE STATEMENT VIOLATED PETITIONER'S DUE PROCESS RIGHTS UNDER THE FEDERAL AND STATE CONSTITUTIONS.
THE PETITION FOR POST CONVICTION RELIEF IS NOT PROCEDURALLY BARRED BY RULE 3:22-4 OR RULE 3:22-5.
In a reply brief, defendant raised the following issues:
I. TRIAL COUNSEL'S FAILURE TO PRESENT MAJOR WITNESS'S WHO GAVE EXTREMELY FAVORABLE TESTIMONY WHICH LEAD TO A HUNG JURY IN PETITIONER'S FIRST TRIAL WAS CONSTITUTIONALLY DEFICIENT DENYING PETITIONER EFFECTIVE ASSISTANCE OF COUNSEL AND CAN'T BE VIEWED AS SOUND TRIAL STRATEGY AS CLAIMED BY THE STATE.
II. THE DEFENDANT IS NOT BARRED FROM RAISING THE SENTENCE OF WILLIAM BAKER UNDER NEWLY DISCOVERED EVIDENCE AS CLAIMED BY THE STATE.
III. THE STATES USE AT TRIAL OF INVOLUNTARY STATEMENTS AND TESTIMONY OF BOBBIE ELLERBEE ILLEGALLY OBTAINED WHILE IN CUSTODY THROUGH THE USE OF THREATS, COERCION AND INTIMIDATION IS INADMISSIBLE VIOLATED DUE PROCESS AND IS NOT BARRED.
The PCR court conducted an evidentiary hearing over seven days, focusing primarily on the issues of (1) newly discovered evidence, namely Ellerbee's claim that she was pressured into giving a statement against defendant; and (2) ineffective assistance of counsel for failing to call three former State witnesses, namely, Pamela Kurzweil, David Estrada, and Bilal Muhammad. As to the former, Ellerbee testified that she continually told Detectives Carl Riley and Kevin Foley of the Union County Prosecutor's Office that defendant never told her anything about the murder, and instead that she was told of his involvement only by defendant's father and sister. Because the detectives did not believe her and were not satisfied with her answer, and because she was scared of Detective Riley, she told them what they wanted to hear. According to Ellerbee, she signed the typewritten statement implicating defendant without reading it. In fact, after defendant's trial, Ellerbee supposedly wrote a letter to defendant's defense counsel, Thomas Russo, on October 8, 2001, claiming she was pressured by Riley, and was later interviewed by an investigator with the Public Defender's Office. Ellerbee also testified that she received twenty to twenty-five letters from defendant since the trial ended, and denied that the letter she mailed to Russo was written by defendant.*fn1
In contrast, Detective Riley denied ever threatening Ellerbee and testified that she never expressed any hesitation or unwillingness to speak with the officers. On the contrary, she appeared calm, polite, respectful and willing to help. When asked if defendant had told her anything about the incident, Ellerbee responded that defendant told her he was riding a bicycle, and he wound up putting a gun to a man's head during a robbery. The gun went off, and he took the man's drugs. The detectives then took a typewritten statement from her, whereupon she read through the statement, initialed each page, and signed at the end.
On the ineffective assistance of counsel claim, defendant testified that after the mistrial, he discussed with counsel Russo the witnesses to be called at retrial. According to defendant, Pamela Kurzweil would have been beneficial to the defense, because she was the only eyewitness to the crime, was only feet away when it happened, yet was unable to identify defendant as one of the perpetrators. As for David Estrada, he testified at the first trial that there were four or five men in the area on bikes who could have committed the crime, and this was consistent with defendant's version. And, lastly, Bilal Muhammad testified at the first trial that he was a friend of defendant's father and that he wrote Baker senior's recantation, which contradicted the father's testimony.
Disputing defendant's recollection, Russo did not recall defendant insisting that any of these witnesses be called to testify at his second trial, or complaining about their absence after his conviction. Russo testified that his trial strategy was to attack the credibility of defendant's chief accuser, his father. In each instance, he explained his reasons for not calling the aforementioned witnesses to testify. He did not believe Kurzweil to be particularly credible; Estrada did not witness the shooting and, in fact, corroborated the father's testimony in important detail; and Muhammad, incredibly, never mentioned defendant's father's letter writing request to defendant despite being housed next to defendant in the jail.
Russo also did not recall ever receiving a letter from Ellerbee, explaining that, if he had, he would have been obligated to pursue the matter further.
At the conclusion of the hearing, the PCR judge denied defendant's petition. He found Ellerbee's testimony "at best was confusing and convoluted in comparison to Mr. Russo's testimony . . .[,]" which was, in contrast, "candid, forthright, and entirely credible," and, also in comparison to the testimony of Detective Riley, who was found to be credible:
I'm also satisfied that what is contained in that letter and what Ms. Ellerbee tried to testify on the stand here also is not credible. It's conflicted. It is not supported by other evidence not in dispute. And, therefore, the Court finds no merit to her testimony. And, therefore, as to that aspect the application for a new trial is denied.
The court further concluded that trial counsel was not ineffective for failing to call the three former State witnesses that defendant supposedly insisted testify in his defense, reasoning that those witnesses were damaging to the defense and partially corroborated other State witnesses. Again, the judge found Russo's testimony in this regard to be "candid . . . forthright, and entirely credible," and further found "overwhelming evidence placing the defendant at the scene, placing him in the alley, placing him vacating that location."
On appeal, defendant contends the court erred in denying his PCR petition. We disagree. Our review of the record, together with the arguments of counsel, and the applicable law, persuade us that the issues raised herein are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). Accordingly, we affirm for the reasons stated by the PCR judge in his thorough oral opinion of November 9, 2006.