June 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRI BAILEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-04-0916.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 13, 2012
Before Judges Messano and Kennedy.
Defendant Terri Bailey appeals from the July 28, 2010 order denying his petition for post-conviction relief (PCR). Tried to a jury in August 2006, defendant was convicted of second-degree eluding, in violation of N.J.S.A. 2C:29-2b, and third-degree resisting arrest, in violation of N.J.S.A. 2C:29-2a(2). He was sentenced on September 15, 2006, to a term of nine years imprisonment, with a four and one-half year period of parole ineligibility, along with appropriate financial penalties. We affirmed defendant's conviction and sentence, State v. Bailey, No. A-1689-06 (App. Div. 2007), and the Supreme Court denied defendant's petition for certification on February 5, 2008. State v. Bailey, 194 N.J. 268 (2008). On June 24, 2008, defendant filed a pro se PCR petition. Counsel was assigned to represent defendant and the motion was argued before the trial judge on April 9, 2010. Thereafter, on July 28, 2010, the trial judge issued a detailed, written opinion denying defendant's PCR petition and declining to conduct an evidentiary hearing. The trial judge thereupon entered an order, and this appeal followed.
We set forth the facts developed at trial as recited in our prior opinion:
The evidence at trial revealed that at approximately 11:00 a.m. on November 30, 2005, in Atlantic City, two members of the Atlantic County Sheriff's Office, Steven Melchiore and Ron Clouser, stopped a gray Sebring driven by defendant. They believed the car's passenger, Keith Blalock, had an open warrant for his arrest. The officers approached both sides of the vehicle, confirmed Blalock was the passenger, informed him of the outstanding warrant, and advised him he was under arrest. Melchiore, who recognized defendant from some prior contacts, requested his driver's license and registration.*fn1
Defendant supplied his name and date of birth, but told the officers that although he possessed a valid driver's license, he did not have it with him. Using a hand-held radio, Melchiore radioed his dispatcher to verify defendant's claim. That officer responded to the call by informing Melchiore that defendant had a valid driver's license, but also had an outstanding warrant for his arrest. The volume on the hand-held radio was loud enough for defendant to hear the officer's conversation with dispatch.
Upon hearing the radio transmission, defendant started the Sebring's ignition. As Clouser attempted to reach in the car and turn off the engine, defendant fled the scene at a high rate of speed knocking Clouser to the ground. The car then ran a red light, and, although the officers gave chase in their car, they quickly lost sight of the Sebring. Clouser copied down its license plate number. Both officers subsequently viewed photo arrays prepared by the Atlantic County Prosecutor's Office and identified defendant as the driver of the car.
Michael Taffler, the area manager for Enterprise Rent-a-Car's southern New Jersey area, testified that the company's records revealed that Shenise Staten, who gave her address as 1800 Missouri Avenue, Apartment C, in Atlantic City, rented the Sebring on November 26, 2005, and it was returned on November 30, 2005, at 5:38 p.m. These documents were published to the jury during Taffler's testimony without objection from defense counsel.
The details of defendants eventual arrest on December 7, 2005, were not disclosed to the jury. As of March 2006, defendant was an inmate in the Atlantic County jail. At a hearing conducted outside the presence of the jury, pursuant to N.J.R.E. 104, the State called Steven Iuliucci, a sergeant at the facility, as its witness. Iuliucci testified that personal records kept by the jail reflected defendant's former address as 1800 Missouri Avenue, Atlantic City. He further testified that as part of its security precautions, the jail kept permanent records of all visitors who entered the complex, and that those records disclosed that Blalock visited defendant on May 14, 2006, and Staten visited defendant on July 29, 2006.
After ruling that the evidence was admissible, and in response to any earlier defense objection, the judge determined that the testimony needed to be "sanitized" to avoid any reference to Iuliucci's position or defendant's incarceration. Therefore, when testimony resumed before the jury, Iuliucci testified that he was "employed at a residential housing community' in Atlantic City, that information regarding the residents' former addresses was gathered in the routine course of business, and that visitors to the community were routinely asked to provide identification when visiting a resident. The jail records of defendant were admitted into evidence.
After Iuliucci's testimony, the State rested. Defendant did not call any witnesses or introduce any evidence. The judge then conducted a charge conference with defense counsel and the assistant prosecutor. Defense counsel requested that the jury be charged with the model "false in one, false in all" instruction citing as a basis the inconsistent statements of the officers at trial. The judge reserved on the request until after defense counsel's summation. However, because, "[he] did not hear anything which remotely resembled or would cause a State v. Hammond charge of material inconsistency between a statement and an earlier statement," the judge also determined that he would not give the model jury charge on inconsistent statements.
The judge then considered whether any lesser-included offenses should be charged. Defense counsel requested only that "every statutory (sic) applicable lesser be charged." The judge then comprehensively considered and rejected any possible lesser-included and lesser-related offenses, the attorneys delivered their summations, the charge was given without objection, and jury deliberations commenced.
The jury found defendant guilty of eluding the police and, in a specific interrogatory, found defendant's conduct created "a risk of death or injury to any person." The jury acquitted defendant of aggravated assault while eluding, N.J.S.A. 2C:12-1(b)(6), but found him guilty of resisting arrest in the third degree, answering a specific interrogatory that defendant "creat[ed] a substantial risk of physical injury to . . . Clouser or another."
[Id. at 3-7.]
Defendant presents the following arguments on appeal:
THERE ARE NO PROCEDURAL BARS
IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF
THE COURT ERRED DURING THE TRIAL BY FAILING TO GRANT DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
THE COURT FAILED TO GIVE THE JURY THE LESSER-INCLUDED FOURTH DEGREE OFFENSE OF RESISTING ARREST
PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
THE TRIAL COURT ERRED BY FAILING TO RECUSE ITSELF
We affirm substantially for the reasons explained by Judge James E. Isman in his written opinion. Defendant's arguments lack sufficient merit to warrant further discussion in another written opinion. R. 2:11-3(e)(2). We add only that defendant's claims that the trial court erred when it denied a motion for acquittal and when it failed sua sponte to charge fourth degree resisting arrest were not raised in the PCR petition. See Rule 3:22-8.
Nonetheless, we observe that the failure to charge lesser- included offenses and a claim that the "weight of the evidence does not support conviction" were raised and rejected by us on direct appeal. Accordingly, these claims are now procedurally barred.
PCR petitions are subject to certain procedural bars. Rule 3:22-4 bars a claim if "[the defendant] could have, but did not, raise the claim in a prior proceeding." State v. Preciose, 129 N.J. 451, 459 (1992). The rule provides for certain exceptions under which a claim may be raised in a PCR proceeding even if it could have been raised in a prior proceeding. These exceptions shall apply only in "exceptional circumstances," and the defendant bears the burden of proving that an application of the Rule 3:22-4 bar would result in fundamental injustice. State v. Mitchell, 126 N.J. 565, 587 (1992).
Rule 3:22-5 is a second procedural bar. Under this
provision, "[a] prior adjudication upon the merits of any ground
for relief is conclusive" and may not be re-litigated on PCR.
In deciding whether to apply Rule 3:22-5, the issue is whether the claim made in the PCR proceeding and the claim previously asserted "are either identical or 'substantially equivalent.'" State v. Marshall, 173 N.J. 343, 351 (2002). "If the claims are substantially the same, the petition is procedurally barred; if not, the claim of error should be adjudicated when there is no other reason to bar it." Ibid. Rule 3:22-5 may be relaxed where the constitutional issues raised are of substantial import. State v. Johns, 111 N.J. Super. 574, 576 (App Div. 1970), certif. denied, 60 N.J. 467, 291 A.2d 17, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972). This exception is, however, "very limited." State v. Franklin, 184 N.J. 516, 528 (2005).
There is no compelling basis here to lift these procedural bars in this case.