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State of New Jersey v. Terri Bailey

June 21, 2012


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-04-0916.

Per curiam.


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 ...

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