April 21, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EUGENE SEABROOKES,*FN1 DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-11-4358.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 15, 2011
Before Judges Parrillo, Espinosa and Skillman.
Defendant Eugene Seabrookes appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Following a nine-day trial, a jury found defendant guilty of the murder of Anthony Lewis, N.J.S.A. 2C:11-3a(1) and (2), and as an accomplice to the murder of Shawn Taylor, N.J.S.A. 2C:11-3a(1) and (2), as well as related weapons, assault and witness tampering offenses. According to the State's proofs, Taylor witnessed the murder of Lewis and identified defendant and Alkabir Sorey as the men directly involved. In turn, several years later, defendant arranged to have Taylor killed to prevent him from testifying against them.
We briefly summarize the facts as stated in our opinion resulting from defendant's direct appeal. State v. Seabrookes, A-0506-02T4 (App. Div. Apr. 24, 2006). On August 20, 1994, defendant and Sorey rode a motorcycle up to a blue Cadillac that Lewis was driving and defendant fired several shots into the vehicle, killing Lewis. The car then struck the concrete barrier of the bridge on North 11th Street at 7th Avenue in Newark. Lewis's body was found slumped in the vehicle, with bullet wounds to the head, back and left arm. Lewis died from a gunshot wound to the brain.
Lewis's cousins, Marvin Freeman and Taylor, were both in the vehicle and witnessed the shooting. At the time, Taylor gave a statement to police that identified defendant as Lewis's shooter and stated that Sorey was with defendant on the motorcycle. Freeman, at that time, only identified Sorey. Just before the incident, defendant had told an acquaintance, Christopher Jackson, that he and Sorey were having a dispute with some guys in a blue Cadillac, who were trying to "get" Sorey. Shortly after the shooting, as he was pulling up to a crowd forming near the scene, Jackson overheard defendant say "you see my work, you see my work." Police recovered nine .40 millimeter shell casings at the scene and some bullets that had lodged in a nearby house. Some three months later, on November 10, 1994, police recovered a gun during a search of Sorey's residence at 215 North Ninth Street. A ballistics expert found that all of the casings and the bullets recovered at the scene of Lewis's murder were fired from the recovered handgun.
Based on this evidence, defendant and Sorey were indicted for Lewis's murder on January 4, 1995. However, when Taylor later recanted his original identification, ceased cooperating with the State, and could not be located, the indictment against defendant and Sorey was dismissed without prejudice.
Taylor, who in the meantime had been arrested and incarcerated for receiving stolen property, was released from jail on $750 bail posted by defendant and then, at defendant's request, transported to North Carolina where he worked in a clothing store owned by defendant and stayed in the home of Jeanette Goodman, a business acquaintance of defendant. According to the State, defendant made this arrangement to prevent Taylor from testifying against him.
Defendant, however, soon became wary that Taylor, an eyewitness to Lewis's murder, remained a threat to him. Defendant expressed his concern to a number of people, including a former girlfriend, Kimmy Wilkins, to whom he said that Taylor was making too many phone calls and that Wilkins should keep close to him. Defendant later told Wilkins that "he was going to get Oatmeal*fn2 clipped." Defendant also mentioned to his friend John Barnes that Taylor was a witness against him in a homicide case, and that the "feds" were calling defendant's store looking for Taylor. Defendant told his friend Michael Williams that he would get the names of witnesses from his lawyer so that he could go after them.
In December 1996, complaining that he was tired of watching his back and tired of watching Taylor, defendant arranged to have Taylor transported back to New Jersey and stay at Sheila Goodman's apartment at 17 Dodd Street in Bloomfield. Defendant and Barnes drove Taylor to New Jersey where Taylor was later taken, along with his girlfriend and son, to Goodman's apartment. Defendant remained in the State for awhile and visited Wilkins's home, where Stacy Lassiter, who was staying with Wilkins, overheard defendant state that he did not think anyone there would see Oatmeal again because defendant intended to kill him.
Barnes and defendant returned to North Carolina. On the day of Taylor's murder, January 2, 1997, defendant had arranged by phone with both Wilkins and Sheila Goodman to have Taylor present in Goodman's apartment. Throughout the day, defendant made several calls from his store in North Carolina to Goodman's apartment. During one of these calls, defendant asked Wilkins, who was also there, to take Taylor to the "Chinese store" at the corner of Dodd and Prospect. Defendant said that Wilkins would not get hurt and asked whether she trusted defendant, to which she responded affirmatively. Defendant added that they were "going to take care of Oatmeal."
Sheila Goodman saw Wilkins leave with Taylor to go to the "Chinese store" around ten o'clock that evening. When they arrived at the "Chinese store," it was closed. As they began to return to Goodman's apartment, Wilkins saw an individual come out of an alley and lift a weapon. Taylor started running, the gunman chased after him, Taylor screamed, and then Wilkins heard a gunshot. Wilkins could not identify the shooter. Later that evening, Sheila Goodman learned that Taylor had been murdered.
As noted, defendant was convicted of the murders of both Lewis and Taylor. After the merger of certain other counts, defendant was sentenced to consecutive terms of life imprisonment with thirty years of parole ineligibility for the murders.*fn3 On appeal, defendant raised thirteen issues, all but two - the out-of-court identification of Taylor and the assertion that the prosecutor's office withheld a subsequent admission by Damon Wise that he, not Sorey, was actually involved in Lewis's shooting - we found to be without merit. State v. Seabrookes, supra, slip op. at 16-17. We found no error in the admission of Taylor's out-of-court identification testimony, having concluded "that the findings of lack of suggestibility and unlikelihood of misidentification are well supported by the record." Id. at 23. As to the remaining issue, we remanded the matter to the trial court to determine whether the State had committed prosecutorial misconduct in advancing its theory that Sorey and defendant committed the Lewis murder, despite having the proffer agreement with Wise, who stated that he and defendant killed Lewis. Id. at 25. We retained jurisdiction. Id. at 27.
On remand, the trial court determined that the "State knew no later than October 1, 1997, that Wise, not Sorey, may have been on the motorcycle with defendant," but also "established that the prosecutor's office included this October 1, 1997 report in the discovery package and [that] the discovery receipt dated November 26, 1997 bore the signature of defense counsel." Accordingly, we affirmed defendant's sentence and conviction, finding no prosecutorial misconduct. State v. Seabrooks, A-0506-02T4 (App. Div. Oct. 19, 2007). The Supreme Court denied defendant's petition for certification on May 6, 2008. State v. Seabrooks, 195 N.J. 519 (2008).
Defendant filed a PCR petition on June 27, 2008.*fn4 The petition raised twenty-two issues. Following argument, the court denied defendant's request for an evidentiary hearing and dismissed his petition, finding the issues raised procedurally barred under either Rule 3:22-12, Rule 3:22-4, or Rule 3:22-5, and in all instances without substantive merit.
On appeal, in addition to challenging the court's application of the procedural bars, defendant in effect reasserts the claims raised in his PCR petition of ineffective assistance of counsel based on:
1. Trial counsel's failure to object to the trial judge's failure to rule after the Wade hearing.
2. Trial counsel's failure to properly cross-examine a State's witness.
3. Trial counsel's failure to obtain and use phone records while cross-examining Wilkins.
4. Trial counsel's failure to challenge [the I]ndictment.
5. Trial counsel's failure to challenge [Seabrookes's] arrest warrant.
6. Trial counsel's failure to object to the authenticity of a recorded conversation played before the jury at trial.
7. Trial counsel's failure to call Dari Kimberly Lewis as a witness.
8. Trial counsel's failure to call Rolando Velazquez as a witness.
9. Trial counsel's failure to inform the Court that juror number 3 perjured herself during jury selection.
10. Trial counsel's failure to properly cross-examine [Wilkins].
11. Trial counsel's failure at trial to challenge a knowingly false theory presented at trial. This claim relates to defense counsel's failure to either obtain a copy of Wise's proffer agreement, or to object strenuously when it was not provided.
12. Trial counsel's failure to use the admission by Wise that he, not Sorey, was riding the motorcycle with Seabrookes to more effectively challenge the State's theory of the case.
13. Ineffective cross-examination of Kimmy Wilkins and Sheila Goodman.
We have considered each of the claims of ineffective assistance of counsel and are satisfied that none of them, save two, are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We now proceed to address whether defendant was denied the effective assistance of counsel because of defense counsel's failure to: (1) challenge the admission of testimony on defendant's 1997 arrest warrant because it indicated that defendant had the same address as Alkabir Sorey, the house where the murder weapon was found; and (2) timely receive and introduce Wise's proffer agreement and statement to attack Taylor's identification of Sorey and defendant and the State's theory that defendant murdered Lewis.
As a threshold matter, it is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42 (1987). A defendant is only entitled to an evidentiary hearing when he makes a prima facie showing that he is reasonably likely to succeed under these two prongs. State v. Preciose, 129 N.J. 451, 463 (1992). The defendant bears the burden of proving his right to post-conviction relief by a preponderance of evidence. R. 3:22-4; see also Preciose, supra, 129 N.J. at 459; State v. Mitchell, 126 N.J. 565, 579 (1992). We are persuaded that such a prima facie showing has not been made in this case and that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.
Defendant claims that counsel was ineffective for failing to challenge Detective Irving Bradley's reference to defendant's 1997 arrest warrant listing defendant's address as 215 North Ninth Street, Newark, which was where Sorey lived and the Lewis murder weapon eventually located. We disagree.
There was no competent evidence produced in the PCR petition that Detective Bradley testified falsely or that the arrest warrant was based on false information. Indeed, defendant has presented no certification or affidavit that he never lived at Sorey's residence or that the police used an incorrect address to require an evidentiary hearing. State v. Ball, 381 N.J. Super. 545, 558 (App. Div. 2005). In any event, we perceive no prejudice to defendant as a result of this reference. The evidence adduced at trial included the fact that defendant was arrested two days after the Lewis murder at his mother's residence at 17 Lenox Avenue, Newark. Counsel was therefore able to argue in summation that there was no link between defendant and the address where the murder weapon was ultimately found, three months later. Moreover, even if defendant did not actually reside at 215 North Ninth Street at the time, it was Sorey's residence and the evidence demonstrated that Sorey and defendant were close friends and that Sorey participated in the commission of Lewis's murder with defendant. Therefore, evidence that these confederates had hidden the murder weapon at Sorey's residence rather than the home of defendant's mother would have limited exculpatory value. Accordingly, defendant's claim of ineffective assistance on this particular ground necessarily fails.
Equally unpersuasive is the claim that counsel was ineffective in not introducing the so-called "exculpatory" evidence of Damon Wise's admission. In general, in order to succeed on a claim of ineffective assistance of counsel, a defendant must show that the evidence itself was actually mitigating. See State v. Martini, 160 N.J. 248, 262 (1999). Typically, decisions as to trial strategy are virtually unassailable on appeal. State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010). Moreover, counsel is not ineffective for failing to introduce such evidence, even if the evidence was beneficial, if the introduction of such evidence "posed the clear risk of an adverse jury reaction." State v. Marshall, 148 N.J. 89, 256, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Wise told police that Sorey was not involved in Lewis's shooting. In his statement, Wise admitted that he and defendant were the ones who were on the motorbike that pulled up next to Lewis's car and that defendant was the one who shot Lewis. At the remand hearing, the trial judge determined that the statement was highly incriminating and that it "would not have been to the defense's benefit had [Wise] been believed." Moreover, the judge noted that no "attorney in their right mind would have arranged to call Damon Wise as a witness to put a gun in their own client's hands."
We agree that the claim of ineffective assistance of counsel lacks any substance. Whatever incidental benefit to be obtained by the use of Wise's statement to impeach Taylor's credibility would have been far outweighed by the harm to defendant because Wise directly implicated him in Lewis's murder. We therefore conclude that defense counsel was not ineffective for failing to introduce evidence that could have "posed the clear risk of an adverse jury reaction." Marshall, supra, 148 N.J. at 256.
Defendant's remaining arguments as to counsel's alleged ineffectiveness and other substantive claims are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).