January 16, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FORREST M. BAKER, SR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-06-0809.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2012
Before Judges Messano and Ostrer.
Defendant, Forrest M. Baker, Sr., appeals from the denial of his petition for post-conviction relief (PCR). Following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1(a), and using a juvenile, his son, M.B., to commit a crime in the first-degree, N.J.S.A. 2C:24-9(a).*fn1
We recite some of the salient evidence adduced at trial:
At approximately 4:00 p.m. on June 29, 2002, . . . the assistant manager of the Rite Aid store in Mount Laurel was near the cash register when she was approached by a teenage boy who removed a gun from under a newspaper and announced a robbery. [She] told him to take what he wanted from the register as she moved to the back of the store to tell the other employees what was occurring. The young man took approximately $200 from the register and left. [She] called the police.
The robbery went unsolved for several months until M.B., in the company of his aunt and uncle, came to the Mount Laurel police station. M.B. . . . provided a detailed statement implicating himself and defendant in the robbery. M.B. claimed that defendant gave him the gun and threatened him with death unless he committed the robbery. He also implicated defendant in other unsolved bank robberies in the area.
A federal arrest warrant was issued for defendant, and a search warrant was also issued for his residence, his mother's residence, and his car. The search of the vehicle resulted in the seizure of a fake mustache, a bank card in defendant's name, and a .45 caliber pellet gun that was described at trial as "very realistic."
Agents of the Federal Bureau of Investigation (FBI) arrested defendant and questioned him at their Cherry Hill offices . . . . [H]e admitted that on June 28, 2002, while his son was in the car, he robbed the Equity Bank in Cherry Hill. He further claimed that he returned to the car with a pillowcase full of money and gave it to M.B. to hold. However, a dye pack in the money exploded, and defendant told M.B. to throw the pillowcase and the proceeds of the robbery out of the vehicle, which he did.
Members of the Mount Laurel police department also questioned defendant about the robbery of the Rite Aid. Although he initially told the police he did not tell his son to rob the store, defendant later acknowledged that "he may have dared him to do it, but he d[id] not recall telling him, or . . . threatening him to go commit the robbery." Defendant also acknowledged knowing that M.B. had in fact committed the Rite Aid robbery.
At trial, M.B. testified that defendant told him as they drove to the Rite Aid that they "didn't have any money and [they] needed money." Defendant told M.B. that he should "go in and rob the Rite Aid," and told him where he would be waiting with the car. M.B. claimed defendant gave him the gun and the newspaper, that he felt threatened by defendant, was afraid of him, and believed he had to commit the robbery. After leaving the Rite Aid, M.B. testified that he returned to the waiting car and gave defendant the money.
Defendant did not testify at trial, however, his mother was called as a defense witness. She testified that defendant's three children lived with her sporadically, described M.B.'s troubled relationship with his father and noted that on occasion M.B., who had impulse control problems, had taken his father's car without permission. Defendant's fifteen year-old daughter, B.B., and his fourteen year-old son, E.B., were also called as defense witnesses, though neither provided any relevant or exculpatory information. Both denied telling defendant's investigator that M.B. had admitted committing the Rite Aid robbery by himself. The defense rested after calling investigator Annie Prochorencko, who testified that she interviewed B.B. and the girl told her that M.B. 1) "had done [the robbery] himself"; 2) had taken defendant's car "while [he] was sleeping"; and 3) had "blamed defendant because he was afraid of the consequences to himself." [State v. Baker, 400 N.J. Super. 28, 33-35 (App. Div. 2008), aff'd o.b., 198 N.J. 189 (2009) (footnote omitted).]
The judge granted the State's motion to impose an extended term of imprisonment pursuant to the "Three Strikes Act," N.J.S.A. 2C:43-7.1, and sentenced defendant to a life term without parole, consecutive to a federal sentence defendant was already serving. We affirmed defendant's conviction and sentence on direct appeal. Id. at 51.
Defendant filed a pro se PCR petition and brief. He claimed that the trial court "failed to obtain jurisdiction" over him because the State violated the "anti-shuttling clause" of the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15. That argument was specifically rejected on direct appeal. See Baker, supra, 198 N.J. at 194; 400 N.J. Super. at 43.
PCR counsel was assigned and filed an amended petition and supplemental brief alleging defendant was denied the effective assistance of counsel at trial and on appeal. PCR counsel argued that: trial counsel failed to file a motion to suppress the statement M.B. gave to the police; failed to properly investigate defendant's mental state at the time he made his statement to the police, and appellate counsel failed to raise the issue on direct appeal; and trial counsel failed to secure written, signed statements from B.B. and E.B. PCR counsel also contended that a new trial was required based upon "newly-discovered" evidence.
Attached to the brief were certifications from defendant, B.B. and E.B. Defendant claimed that he was under the influence of drugs and sleep-deprived when questioned by the FBI. He further certified that he was sleeping at home when M.B. robbed the Rite Aid, and that B.B. and E.B. would so testify.
B.B. certified that her father was sleeping at home when M.B. arrived and told her that he had robbed the Rite Aid. B.B. further claimed that her trial testimony "was not accurate[,]" because she feared "physical harm" at M.B.'s hands if she testified truthfully, and because M.B. told her "he would tell the truth and clear our father of th[e] robbery charge." B.B. contacted PCR counsel with this information. E.B. provided a certification that was nearly verbatim to that provided by B.B.
Judge Jeanne T. Covert, who was not the trial judge, considered oral argument, and, on January 3, 2011, issued a written decision denying defendant's petition. Citing State v. Baum, 199 N.J. 409, 417 (2009), Judge Covert concluded that trial counsel was not ineffective for failing to challenge M.B.'s statement to the police because defendant "simply cannot assert his son's Miranda rights."*fn2 The judge also concluded that defendant's claim regarding his mental state during interrogation was "a mere bald assertion." Judge Covert also concluded that appellate counsel did not provide ineffective assistance because defendant's statement was admitted after a full evidentiary hearing at trial, and defendant "was not likely to [have] succeed[ed] on the claim" on appeal.
The judge also concluded that any failure to reduce E.B.'s and B.B.'s statements to writing was inconsequential to the outcome of the trial. Judge Covert noted that both were called as witnesses and either could not recall providing an oral statement to defense investigator Prochorencko, or could not recall what was said. Nonetheless, Prochorencko was permitted to testify as a defense witness and summarized B.B.'s statement for the jury, in particular, that M.B. told her he had committed the crime alone and defendant was not involved in the robbery.
Judge Covert further noted that even if the statements had been reduced to writing, they would not have been admitted as substantive evidence because they would not have been inconsistent with B.B.'s or E.B.'s trial testimony. See N.J.R.E. 803(a)(1). Judge Covert observed that the trial judge had not found that either B.B. or E.B. feigned a loss of memory. See State v. Cabbell, 207 N.J. 311, 336-37 (2011) (noting that "when the witness feigns a loss of memory on the stand," a prior statement may be admissible because it is deemed to be inconsistent).
Lastly, Judge Covert concluded that B.B.'s and E.B.'s certifications were not newly-discovered evidence that warranted a new trial. She noted that both testified, and Prochorencko provided the essence of B.B.'s certification to the jury. Judge Covert also observed that "[v]iewing these statements with necessary skepticism, they fail to meet the standards set out by . . . New Jersey case law." The judge entered an order denying the petition and this appeal followed.
Before us, defendant reiterates the same arguments regarding trial counsel's ineffective assistance and his claim that the certifications of E.B. and B.B. were newly-discovered evidence that warranted a new trial. Defendant contends that an evidentiary hearing was required before the petition was denied. In a pro se supplemental brief, defendant again raises the claim that the trial court lacked jurisdiction because the State failed to comply with the IAD. He also contends that trial counsel and appellate counsel provided ineffective assistance.
We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Covert in her written decision. We add only the following.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696.
Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. We apply the same standard to claims of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987)).
Rule 3:22-10(b) provides:
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.
Accord State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (citations omitted). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). Most importantly, a "[d]efendant must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008) (emphasis added); see also R. 3:22-10(e)(3). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
To meet the standard for a new trial based on newly discovered evidence, [a] defendant must show that the evidence is 1) material, and not "merely" cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted." [State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]
All three prongs of the test must be established. Ibid. "Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." Id. at 187-88.
Here, defendant failed to establish a prima facie case of ineffective assistance of trial or appellate counsel. His claims regarding trial counsel's failure to properly communicate with him and investigate his mental state at the time of his admissions to the police are bald, unsubstantiated assertions. Defendant's assertion of error regarding the State's failure to comply with the IAD has been fully litigated. See R. 3:22-5 (barring consideration of any ground for relief that was the subject of "[a] prior adjudication upon the merits").
We turn then to the certifications of E.B. and B.B. For the reasons expressed by Judge Covert, we reject any claim that trial counsel provided ineffective assistance because he failed to memorialize the children's alleged statements to Prochorencko in writing. Even if we were to conclude this reflected some deficiency in counsel's performance, we agree with Judge Covert that defendant cannot meet the second prong of the Strickland/Fritz test. In other words, because Prochorencko testified as to the exculpatory evidence B.B. provided, defendant cannot demonstrate prejudice by not having procured a written statement.*fn3
Lastly, we agree with Judge Covert that the certifications, or the assumedly consistent testimony B.B. and E.B. would provide, were not newly-discovered evidence warranting a new trial. The evidence would be material, since both B.B. and E.B. provided defendant with an alibi -- he was home asleep when the robbery occurred -- and implicated someone else -- M.B. -- as the perpetrator. See Ways, supra, 180 N.J. at 188 (noting "evidence that supports a defense, such as alibi [or] third-party guilt" is material).
The evidence is not newly-discovered, however, since Prochorencko's trial testimony essentially provided all the salient facts contained in B.B.'s and E.B.'s certification. The only "new" claim is that neither child's trial testimony was "accurate" because they feared M.B. In other words, the certifications are recantations, not as to the substantive evidence, but rather as to the reason why neither B.B. nor E.B. could recall what they told Prochorencko.
As such, the certifications are "regarded 'as suspect and untrustworthy.'" Id. at 197 (quoting Carter, supra, 69 N.J. at 427). But, more importantly, because the subject of each recantation had nothing to do with the factual testimony actually produced by defendant in one form or another at trial, "the entire trial evidence [is not seriously impugned so] as to give rise to the conclusion that there resulted a possible miscarriage of justice." Carter, supra, 69 N.J. at 427 (citation omitted).
To the extent we have not directly addressed any remaining claims regarding trial or appellate counsel's ineffective assistance, we conclude they lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).