STATE OF NEW JERSEY VS. JAMELL D. SCOTT STATE OF NEW JERSEY VS. LEE C. REEVES STATE OF NEW JERSEY VS. TYLEEK J. BAKER (06-05-0869 AND 09-01-0109, OCEAN AND MONMOUTH COUNTIES AND STATEWIDE) (CONSOLIDATED) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4765-15T21
A-0422-16T2
A-0531-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMELL D. SCOTT, a/k/a
JAMAL SCOTT,
Defendant-Appellant.
___________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEE C. REEVES, a/k/a KAOZ,
Defendant-Appellant.
____________________________
STATE OF NEW JERSEY,
1
These are back-to-back post-conviction relief (PCR) petitions consolidated for
the purpose of this opinion.
Plaintiff-Respondent,
v.
TYLEEK J. BAKER,
Defendant-Appellant.
____________________________
Submitted October 30, 2018 – Decided August 14, 2019
Before Judges Suter and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean and Monmouth Counties, Indictment
Nos. 06-05-0869 and 09-01-0109.
Joseph E. Krakora, Public Defender, attorney for
appellants (John A. Albright, Designated Counsel, on
the brief in A-4765-15; Monique Moyse, Designated
Counsel, on the brief in A-0422-16; Alison S. Perrone,
Designated Counsel, on the brief in A-0531-16).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel J. Marzarella, Chief
Appellate Attorney, of counsel; Shiraz I. Deen,
Assistant Prosecutor, on the brief).
Appellants Jamell D. Scott and Tyleek J. Baker filed
pro se supplemental briefs.
PER CURIAM
In these back-to-back PCR petitions, which we consolidate for purposes
of this opinion, defendants Tyleek J. Baker, Jamell D. Scott and Lee C. Reeves
A-4765-15T2
2
appeal the denial of their PCR petitions without an evidentiary hearing. For
reasons that follow, we affirm the denial of each petition.
I
The PCR petitions arise from the murders of Jose Francisco Olivares and
Thelma Vazquez in separate but related incidents. In Indictment 06-05-0869,
the State contended that Tyleek Baker shot and killed Olivares in a barbershop
in Lakewood over a dispute. Jamell Scott and James Russell2 were charged as
accomplices in that murder. In Indictment 09-01-0109, the State contended that
Lee Reeves—intending to kill Christian Vivar Granados, who was to testify at
trial the next day against Baker, Scott and Russell—shot and killed Vasquez,
who was the mother of Granados' girlfriend. Scott was charged as an accomplice
in that murder as well.
The indictments were tried in separate jury trials. Baker and Scott were
defendants in the trial of 06-05-0869. Reeves and Scott were defendants in the
trial of 09-01-0109.
2
We affirmed the denial of Russell's PCR petition in a separate unpublished
opinion, State v. Russell, No. A-5319-15 (App. Div. May 15, 2019) (slip op. at
2, 34).
A-4765-15T2
3
Indictment 06-05-0869
Relevant to these appeals, the evidence at the trial involving Baker and
Scott revealed:
[A]t approximately 4:00 p.m. on February 7,
2006, Jason Vega arrived at the Man, Woman and Child
Barbershop in Lakewood. Vega's brother, Ramon, and
Vega's friends, Christian Vivar Granados and Olivares,
known as "Hefe," were already there. Jose Silva was
one of the barbers at the shop that day.
Vega . . . walked through another room where
approximately nine people were gathered, stopping
briefly to say hello. Baker, who was known as
"Respect," was playing chess with another person when
he began "mocking" Vega. Vega ignored Baker's
"mocking" until he heard Baker say to someone on the
phone, "Jason Vega and his boys are plotting on me."
Not knowing to whom Baker was speaking, Vega was
upset and thought he was going to "have to . . . watch[]
[his] back." Vega challenged Baker to a fight "and he
accepted." Vega "asked him to step outside . . . to settle
it[,] basically, fistfight." James Bellamy . . . claimed,
however, that Baker was not involved in any arguments
or confrontations.
According to Vega, after Baker accepted the challenge,
Baker asked someone if Hefe was in the shop. When
told he was, Baker ran out the back door. Vega waited
for Baker in front of the barbershop for approximately
fifteen minutes and then left.
Shortly after this confrontation, Granados saw Russell,
whom he knew as "Gotti," and Scott, who was known
as "High-Five," enter the barber shop and walk to the
A-4765-15T2
4
back. They stayed in the store for a couple of minutes
before leaving.
Silva was arranging his barber station when he saw
Baker, who he knew as a regular customer, come in
with two other men. When the men entered, Olivares
was seated, but, as he stood up from his chair, Baker
shot him six times . . . . Silva could not identify the two
men with Baker.
Granados was getting his hair cut when he saw Baker,
Russell, and Scott walk into the shop. He heard Baker
say, "Where's that nigger that have a beef with me?"
Olivares stood up, said, "What's up?," and Baker shot
him. Granados explained that during the shooting,
Russell stood on Baker's left and Scott on his right.
Both men had their hands crossed in front of them, kept
a straight face, and did not appear upset or surprised.
[State v. Scott (Scott I), Nos. A-3455-08, A-4794-08,
A-4841-08 (App. Div. Apr. 20, 2012) (slip op. at 9-
11).]
The three men left the barbershop and fled. Eventually, Baker and Scott were
arrested in Las Vegas.
Baker and Scott were charged with first-degree murder, N.J.S.A. 2C:11-3
and N.J.S.A. 2C:2-6, and first-degree conspiracy to commit murder, N.J.S.A.
2C:11-3 and 2C:5-2. Additional charges against Baker included: second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-
degree certain persons not to have a firearm, N.J.S.A. 2C:39-7(b)(1). The case
A-4765-15T2
5
was tried in 2008. Baker and Scott were convicted of the murder charges. Baker
pleaded guilty to the certain persons offense after he was convicted on the other
counts. Defendants' motions for a new trial and for judgment of acquittal were
denied by the trial court.
Baker was sentenced to a life term of imprisonment with an eighty-five
percent period of parole ineligibility on the murder counts, which were merged,
and to a ten-year consecutive term on the certain persons offense with five years
of parole ineligibility. Scott was sentenced to a life term with an eighty-five
percent period of parole ineligibility on the murder charge. We affirmed their
convictions and Scott's sentence. Scott I, slip op. at 7-8, 47. We also affirmed
Baker's sentence except for the consecutive portion on the firearms charge,
which we remanded solely for reconsideration of the consecutive term. 3 Id. at
7-8, 49. The Supreme Court denied their petitions for certification. 212 N.J.
431 (2012).
Indictment 09-01-0109
Regarding indictment 09-01-0109, the evidence at trial involving Reeves
and Scott revealed:
3
Baker was resentenced. The ten-year sentence was reduced to seven with a
five-year period of parole ineligibility that was concurrent to his life term.
A-4765-15T2
6
In February 2006, Christian Vivar Granados was an
eyewitness to a violent incident that led to criminal
charges against Scott, Russell, and Tyleek Baker
relating to the murder of Jose Francisco Olivares in a
Lakewood barbershop. During his 9-1-1 call, Granados
identified one of the participants by nickname and first
name. He also gave statements to the police and
identified all three participants in photographs.
Granados's name and address appeared in the police
reports and other documents produced during discovery
in the Olivares murder proceeding. At a plea cut-off
hearing in August 2008, Scott and Russell
acknowledged that they had reviewed the discovery
materials with their attorneys. The court set the trial
date for September 15, 2008.
Jury selection began on September 17, 2008. On
October 7, 2008, the trial judge advised the defendants
that opening statements and witness testimony would
begin on October 14, 2008.
....
On Tuesday, October 14, 2008, Granados was staying
with his girlfriend, Alisa Morales, and her mother,
Thelma Vazquez, at the Congress Apartments in
Lakewood. Prior to that day, a defense investigator had
visited a different address listed for Granados in the
Olivares discovery materials and was directed by
Granados's mother to reach Granados at the Congress
Apartments.
....
Shortly before 6:00 a.m., Vazquez was sleeping on the
sofa in the living room when the household's dog began
barking. Morales and Granados, who were in the
bedroom, heard Vazquez call for the dog and ask, "Que
A-4765-15T2
7
lo que?" Then they heard gunshots. Upon entering the
living room, they saw the front door open and Vazquez
bleeding on the sofa. While Granados called 9-1-1,
Morales ran outside in an effort to get a glimpse of the
shooter, but she did not see anyone.
[State v. Scott, Reeves, Russell, and Trishawn F.
Cochran (Scott II), Nos. A-2580-09, A-4100-09, A-
4101-09, A-6279-09 (App. Div. Apr. 16, 2013) (slip op.
at 4-8) (footnote omitted).]
Vasquez died shortly after. The handgun and two shell casings were obtained
through investigation and forensically linked. An investigation connected
Reeves to the shooting and a scheme involving Scott and Russell to kill
Granados.
Reeves and Scott 4 were charged with first-degree conspiracy to commit
murder, N.J.S.A. 2C:11-3(a) or (b) and N.J.S.A. 2C:5-2; first-degree murder,
N.J.S.A. 2C:11-3(a) or (b); two counts of first-degree attempted murder,
N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-1; second-degree burglary, N.J.S.A.
2C:18-2; second-degree conspiracy to commit witness tampering, N.J.S.A.
2C:28-5(a) and N.J.S.A. 2C:5-2; and first-degree witness tampering, N.J.S.A.
2C:28-5(a) and N.J.S.A. 2C:5-2. Reeves also was charged with second-degree
4
Cochran, Joseph Powell and Russell were included under the same indictment.
Powell pleaded guilty to second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b).
A-4765-15T2
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possession of a weapon for unlawful purposes, in violation of N.J.S.A. 2C:39-
4(a).
Reeves and Scott were tried jointly in 2009 before a jury. 5 The same trial
judge was assigned, who had tried the 2006 indictment involving Baker and
Scott. Reeves testified that he shot Vasquez. Scott did not testify. Powell
testified that Reeves and the other co-defendants were members of the Bloods
gang and that Reeves had been ordered to kill Granados, the witness in the barber
shop murder. Other witnesses provided testimony that corroborated Reeves' and
Scott's involvement.
Reeves and Scott were convicted of all the charges against them. Reeves
was sentenced to an aggregate term of life in prison subject to an eighty-five
percent period of parole ineligibility. Scott was sentenced to an aggregate life
term with an eighty-five percent period of parole ineligibility to be served
consecutively to the sentence he was serving.
We affirmed their convictions and sentences. Scott II, slip op. at 119. The
Supreme Court denied their petitions for certification. 216 N.J. 14 (2013).
5
We limit our discussion to the issues raised by defendants in these appeals.
A-4765-15T2
9
PCR Petitions
In his direct appeal, Baker alleged the trial judge prosecuted him in a
number of cases when the judge was an assistant prosecutor and he was a
juvenile. He claimed he told his trial counsel, who told him he had spoken with
the trial judge and said that the trial "judge would be fair." Scott I, slip op. at
47-48. In our 2012 opinion, we observed that this conflict issue was more
appropriately addressed in a PCR petition because, at that time, there was "no
specific information about the juvenile charges and when they were allegedly
prosecuted." Id. at 49.
Baker, Scott, Reeves and Russell filed separate petitions for PCR. The
cases were transferred to the Monmouth vicinage where the PCR court heard all
of the PCR petitions together. The PCR judge ordered the in-camera production
of fourteen internal files from the prosecutor's office about Baker's charges as a
juvenile. Review showed a number of documents between 1993 and 1998 where
the trial judge had some level of involvement. 6 Some of the documents indicated
a supervisory capacity. There also were four juvenile delinquency complaints
against Baker that the trial judge signed in his former capacity as an assistant
prosecutor.
6
See Schedule A to this opinion.
A-4765-15T2
10
The PCR court allowed written interrogatories to be posed to the trial
judge for his response, but the parties could not contact the trial judge directly.
Defendants filed motions to recuse the PCR judge based on the procedures she
had set up. Scott's counsel objected to the inability to personally question the
trial judge and because some of his questions were not submitted to the judge.
The PCR court denied these motions.
In his answers to the interrogatories, the trial judge certified he was an
assistant prosecutor from 1988 to 1999, serving as a trial attorney through
August 1993 and a supervisor from then until 1999. As a supervising prosecutor,
he conferenced over 500 cases and tried over twenty juvenile cases per year. In
his answers, he denied that Baker's counsel told him about any potential conflict
when he handled the trial of indictment 06-05-0869, and he had no recollection
of previously prosecuting Baker. Had he remembered, or received any evidence
about prosecuting Baker, he "would have transferred the case to another judge."
Just prior to jury selection for indictment 09-01-0109, the trial judge
advised the parties that he had been informed that Reeves had participated in the
mentoring program known as Omega XIII. The judge was involved with the
program but did not recall Reeves' being a participant. In his answers to the
A-4765-15T2
11
interrogatories, the trial judge stated he did not recall personally counseling
Reeves or having any involvement with him in the program.
The PCR court heard oral argument on all of the PCR petitions and in a
comprehensive, well-reasoned opinion, denied the petitions on April 29, 2016,
without the evidentiary hearing defendants requested.
Baker's PCR petition alleged that his trial counsel "rendered assistance
that was constitutionally ineffective." Relevant here, he claimed his attorney
was ineffective by allowing the trial judge to preside over a case where the judge
previously had prosecuted him when he was as a member of the prosecutor's
office.
The PCR court rejected Baker's claim that he was entitled to relief based
on his allegation the trial judge prosecuted him as a juvenile offender. Baker
could have raised this conflict issue at any point prior to, during or after trial.
He did not raise it until 2010, two years after the trial. More importantly, Baker
did not allege any actual bias by the trial judge. Because Baker was not alleging
the judge acted with bias or partiality, Baker could not show that the result of
the proceeding would be different if the trial court were disqualified
retroactively. The PCR court found no corroborating evidence that Baker's trial
counsel informed the trial court about the conflict prior to trial. The trial court
A-4765-15T2
12
denied any such notice. The PCR court applied the factors in State v. Presley7
to determine there was no basis for PCR relief.
Reeves argued the trial judge should have been disqualified because he
was involved in the Omega XIII youth mentoring program when Reeves was
participating. He claimed the judge removed him from the program because he
was a bad influence. Reeves asserted he was deprived of a fair trial because the
judge prosecuted co-defendant Baker when Baker was a juvenile. He argued his
counsel provided ineffective assistance because at a pre-trial conference, he
directed Reeves to confess to shooting Vasquez. His counsel also should have
asked for a mistrial because of juror misconduct. Reeves complained that the
State committed a Brady8 violation by not disclosing a letter written to another
judge by co-defendant Powell and an affidavit by Devon Hardy, who allegedly
was a cellmate of Powell's.
The PCR court found there was no "constitutional defect" because "there
[was] no substantiated allegation that [the trial judge] was in any way partial or
biased." Reeves admitted shooting Vasquez and there were corroborating
7
436 N.J. Super. 440 (App. Div. 2014).
8
Brady v. Maryland, 373 U.S. 83 (1963).
A-4765-15T2
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witnesses. There was no reason to disqualify the judge retroactively based on
analysis of the Presley factors.
The PCR court also rejected Reeves' ineffective assistance claims. No one
told Reeves his pre-trial admissions would be admissible against him at trial.
He could have changed his mind and decided not to testify. Reeves did not show
the outcome of the trial would have been different had he not acknowledged the
shooting or if his attorney asked for the trial judge's recusal. He did not show
the Powell letter or Hardy affidavit were ever in the State's possession or that
they were material to his case. All of the jurors told the trial judge on voir dire
examination that they could decide the case based on the evidence even though
one juror looked up information on the internet.
Scott's PCR petition under indictment 06-05-0869 asserted he should have
been able to interview the trial judge about Baker's juvenile cases, that the trial
judge should have been disqualified, and that his trial and appellate counsel
rendered ineffective assistance. He claimed cumulative errors deprived him of
a fair trial. He asserted issues about courthouse security protocols, prosecutorial
misconduct and erroneous jury charges. Under indictment 09-01-0109, Scott
again raised conflict issues involving the trial court, and claims about
A-4765-15T2
14
prosecutorial misconduct, cumulative errors and the failure by his counsel to
request a mistrial for juror misconduct. He requested an evidentiary hearing.
The PCR court found that Scott lacked standing to raise the
disqualification issue. Citing Presley, even if Baker and Reeves could assert
that the judge should have been disqualified based on a conflict, this was an
"insufficient basis" for Scott to obtain a new trial. The PCR court rejected
Scott's other arguments for PCR relief and for an evidentiary hearing.
Baker, Reeves and Scott appeal the denial of their PCR petitions and
requests for an evidentiary hearing. On appeal, they raise the following issues:
Baker:
POINT ONE
THE PCR COURT'S DECISION DENYING
DEFENDANT'S MOTION FOR POST-CONVICTION
RELIEF MUST BE REVERSED BECAUSE THE
JUDGE PRESIDING OVER DEFENDANT'S TRIAL
HAD PREVIOUSLY PROSECUTED DEFENDANT.
AT THE VERY LEAST, DEFENDANT SHOULD
HAVE BEEN GRANTED AN EVIDENTIARY
HEARING ON THIS ISSUE.
Baker filed a pro se supplemental brief on appeal where he
raised this issue:
THE PCR COURT'S DECISION DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF MUST BE REVERSED
A-4765-15T2
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BECAUSE THE PCR COURT APPLIED THE
WRONG LEGAL STANDARD.
Reeves:
POINT ONE
MR. REEVES IS ENTITLED TO A HEARING ON
HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF
COUNSEL.
POINT TWO
JUDGE DANIELS' FAILURE TO DISQUALIFY
HIMSELF FROM MR. REEVES' CASE AND/OR
FROM TYLEEK BAKER'S CASE DEPRIVED MR.
REEVES OF A FAIR TRIAL, AND HIS
CONVICTIONS MUST BE REVERSED.
POINT THREE
THE STATE VIOLATED BRADY V. MARYLAND,
373 U.S. 83 (1963) BY FAILING TO DISCLOSE
POWELL'S LETTER AND DEVON HARDY'S
AFFIDAVIT.
Scott:
POINT I
THE DENIAL OF POST-CONVICTION RELIEF
MUST BE REVERSED BECAUSE THE TRIAL
JUDGE HAD PREVIOUSLY PROSECUTED CO-
DEFENDANT BAKER AND ACKNOWLEDGED A
PERSONAL RELATIONSHIP WITH CO-
DEFENDANT REEVES. IT WAS OF NO MOMENT
THAT THE EARLIER PROSECUTIONS AND
RELATIONSHIP WERE NOT WITH DEFENDANT
A-4765-15T2
16
DIRECTLY BECAUSE THE DEFENDANTS WERE
TRIED JOINTLY IN A SHROUD OF IMPROPRIETY.
POINT II
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT CONDUCTING
AN EVIDENTIARY HEARING ON THE CONFLICT
BETWEEN THE TRIAL JUDGE AND
DEFENDANTS AND ON DEFENDANT'S OTHER
CLAIMS.
POINT III
THE PCR COURT DENIED DEFENDANT THE
EFFECTIVE ASSISTANCE OF PCR COUNSEL
WHEN IT BARRED ANY INVESTIGATION INTO
THE CONFLICT BETWEEN THE TRIAL JUDGE
AND DEFENDANTS BEYOND SEVERELY
LIMITED AND CENSORED INTERROGATORIES
TO THE TRIAL JUDGE.
POINT IV
RECUSAL WAS REQUIRED WHEN THE PCR
JUDGE SOUGHT TO DISMISS DEFENDANT'S
AND CO-DEFENDANT RUSSELL'S POST-
CONVICTION RELIEF PETITIONS AT THE
OUTSET OF THE PROCEEDINGS WITH THE AID
OF THE PROSECUTOR, AND TO INSULATE THE
TRIAL JUDGE FROM ANY INQUIRY OR
INVESTIGATION THAT MIGHT MAKE HIM
"UNCOMFORTABLE."
A-4765-15T2
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II
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State
v. Fritz, 105 N.J. 42 (1987). In order to prevail on an ineffective assistance of
counsel claim, defendants must meet a two-prong test by establishing that: (l)
counsel's performance was deficient and the errors made were so egregious that
counsel was not functioning effectively as guaranteed by the Sixth Amendment
to the United States Constitution; and (2) the defect in performance prejudiced
defendants' rights to a fair trial such that there exists "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694.
"[A] prior adjudication on the merits ordinarily constitutes a procedural
bar to the reassertion of the same ground as a basis for post-conviction review."
State v. Preciose, 129 N.J. 451, 476 (1992) (citing R. 3:22-5). Additionally, a
defendant is precluded from raising an issue on PCR that could have been raised
on direct appeal. State v. McQuaid, 147 N.J. 464, 483 (1997); R. 3:22-4. As
explained by the Court in McQuaid:
A defendant ordinarily must pursue relief by direct
appeal, see R. 3:22-3, and may not use post-conviction
A-4765-15T2
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relief to assert a new claim that could have been raised
on direct appeal. See R. 3:22-4. Additionally, a
defendant may not use a petition for post-conviction
relief as an opportunity to relitigate a claim already
decided on the merits. See R. 3:22-5.
[McQuaid, 147 N.J. at 483.]
The application of these standards requires the "[p]reclusion of
consideration of an argument presented in post-conviction relief proceedings
. . . if the issue raised is identical or substantially equivalent to that adjudicated
previously on direct appeal." State v. Marshall (Marshall IV), 173 N.J. 343, 351
(2002) (quoting State v. Marshall (Marshall III), 148 N.J. 89, 150 (1997)). A
PCR claim is based upon the "same ground" as a claim already raised by direct
appeal when "'the issue is identical or substantially equivalent' to [the] issue
previously adjudicated on its merits." McQuaid, 147 N.J. at 484 (quoting Picard
v. Connor, 404 U.S. 270, 276-77 (1971); State v. Bontempo, 170 N.J. Super.
220, 234 (Law Div. 1979)).
A
Baker contends he is entitled to post-conviction relief because the trial
judge had a disqualifying conflict based on his alleged prosecution of Baker as
a juvenile. He is not claiming there was any actual bias. He argues this relief
is warranted regardless of whether the judge actually prosecuted Baker or
A-4765-15T2
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whether he recollected prosecuting Baker. He argues the trial court had to be
disqualified once the conflict was raised, even if raised after the verdict. In his
pro se brief, Baker contends the PCR court applied the wrong legal standard—
that the test is not whether the trial judge was actually biased but whether there
was the potential for bias. He argues the PCR court should have ordered an
evidentiary hearing instead of limiting the trial judge to answering written
interrogatories.
"The 'overarching objective of the Code of Judicial Conduct is to maintain
public confidence in the integrity of the judiciary.'" Presley, 436 N.J. Super. at
447 (quoting In re Advisory Letter No. 7-11 of the Supreme Court Advisory
Comm., 213 N.J. 63, 71 (2013)). Courts are concerned with actual bias and the
appearance of bias. Id. at 448 (citing Panitch v. Panitch, 339 N.J. Super. 63, 67
(App. Div. 2001)). "[W]ithout any proof of actual prejudice, 'the mere
appearance of bias may require disqualification.'" Ibid. (quoting Panitch, 339
N.J. Super. at 67). The appearance of bias alone is not sufficient. Ibid. (quoting
Marshall III, 148 N.J. at 279). "[B]efore the court may be disqualified on the
ground of an appearance of bias, the belief that the proceedings were unfair must
be objectively reasonable." Ibid. (quoting Marshall III, 148 N.J. at 279). We
said in Presley: "The Supreme Court has distilled these principles to this
A-4765-15T2
20
question: 'would a reasonable, fully informed person have doubts about the
judge's impartiality?'" Ibid. (quoting DeNike v. Cupo, 196 N.J. 502, 517
(2008)).
The trial judge's interrogatory answers provided that he would have
transferred the case to another judge if he were made aware of the issue or had
an independent recollection of Baker. The question is whether defendants are
entitled to relief retroactively, now that the trial is completed, the convictions
and sentences are affirmed and there is no allegation of actual bias. Given the
totality of the circumstances, we agree with the PCR court that no relief is
warranted.
As an initial matter, we do not overlook that Baker had ample opportunity
to raise this issue to the trial judge and did not. He could have raised it at some
point during the lengthy trial, at the point when he was permitted to address the
court, or at sentencing. Rule 3:12-4 bars claims that could have been raised but
were not. It permits an exception for claims that implicate constitutional rights,
but generally, an issue about judicial disqualification does not raise that type of
issue. Presley, 436 N.J. Super. at 458 (citing Aetna Life Ins. Co. v. Lavoie, 475
U.S. 813, 820-21 (1986)).
A-4765-15T2
21
The cases cited by Baker do not address his situation. In State v. Tucker,
264 N.J. Super. 549, 553 (App. Div. 1993), the defendant's motion for
disqualification was made prior to the commencement of trial. That was not the
case here where Baker is seeking to disqualify the judge retroactively, having
raised the conflict issue two years after the trial.
In State v. McCann, 391 N.J. Super. 542, 543 (App. Div. 2007), the
municipal court judge who issued the search warrant was not a "neutral and
detached magistrate" because he previously represented defendant as his
attorney in prior matters. The municipal judge "knew or should have known"
that defendant had been his client. Id. at 554. That was not the case in Baker's
trial.
In Rivers v. Cox-Rivers, 346 N.J. Super. 418, 420 (App. Div. 2001), the
matrimonial trial judge previously represented the husband as his attorney in
connection with his legal separation. We vacated the trial court's order and
remanded the case for consideration by another judge. Id. at 419. These facts
have nothing to do with Baker's case.
In State v. Holland, 449 N.J. Super. 427, 436 (App. Div. 2017), the trial
judge presided over "the criminal trial of his former criminal client." It was not
disputed that all the parties had knowledge about this prior representation at the
A-4765-15T2
22
time of the trial. Id. at 432. We rejected the PCR court's unsupported conclusion
that the trial judge was not aware of the prior representation. Id. at 436. The
case is factually distinct because, here, there was no indication the parties were
aware of the judge's prior involvement and the trial court certified he was not
aware and was not so advised.
In Presley, we addressed whether to suppress evidence and dismiss
indictments where the trial judge previously prosecuted just one of the
defendants in the case and there were no allegations of bias or that the trial judge
was aware of the disqualifying conflict at the time the warrants were issued. 436
N.J. Super. at 443. We held that to evaluate whether nullification was necessary
to "restore public confidence in the integrity and impartiality of the proceedings,
to resolve the dispute in particular and to promote generally the administration
of justice," a non-exclusive list of seven factors should be considered. Id. at
461-63 (quoting DeNike, 196 N.J. at 519). We considered that from the
perspective of the public, "there is little reason to lose confidence in the integrity
of the judicial process when it is undisputed that the judge was unaware of the
seven-year-old disqualifying facts and acted in an unbiased manner." Id. at 465.
In fact, we were convinced the public might be "dismayed by the effect on the
integrity of the judicial process if a defendant were permitted to manipulate the
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23
outcomes of prosecutions not tainted by constitutional defect by having t he
discretion to invoke dispositive claims of judicial disqualification at will. " Id.
at 465-66. The same applies here.
Eleven years passed between Baker's juvenile cases and his trial in 2008.
The judge was not aware of any prior involvement with Baker. The issue was
not raised during the trial when the State or judge could have addressed it . There
was no bias by the judge and all of Baker's appeal issues about the conviction
and sentence were addressed and affirmed. Baker had many opportunities to
raise this issue. The State likely would be prejudiced if records no longer exist
or witnesses are not available if we were to reverse.
Baker provided no corroboration for his claim that he advised his attorney
about this issue prior to trial. He concedes there was no proof of actual bias by
the judge. He has not argued or shown that the result of the trial would have
been different had the alleged conflict been disclosed.
We are satisfied based on the totality of the facts that denial of Baker's
PCR will not erode the public's confidence in the integrity of the judiciary and
that Baker's fair trial rights were not violated. He did not show he was
prejudiced or that the result of the proceeding would have been different.
Without a prima facie case of ineffective assistance of counsel, an evidentiary
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24
hearing was not warranted. See Preciose, 129 N.J. at 462; R. 3:22-10(b).
Baker's remaining arguments lack sufficient merit to warrant further discussion
in a written opinion. R. 2:11-3(e)(2).
B
Reeves complains that at a pre-trial proceeding, his attorney required him
to confess to shooting Vasquez, that he was not told about his right to remain
silent, and he felt compelled to testify at trial because he already had confessed.
He argues his trial attorney failed to ask for a mistrial or the removal of a juror
who, contrary to court instruction, researched certain issues on the internet and
then shared that information with other jurors. He asserts that his attorney
should have asked the trial judge to recuse himself. Reeves argues the PCR
court erred by denying his request for an evidential hearing.
During jury selection, Reeves raised the defense of duress for the first
time. The trial judge permitted Reeves to advance this defense, over the State's
objection, even though it was asserted well after the time allowed by the Rules.
See R. 3:12-1 (requiring a defendant to notify the State "[n]o later than seven
days before the Initial Case Disposition Conference" if asserting the defense of
duress under N.J.S.A. 2C:2-9(a)). The State suggested Reeves make a proffer
to the court in support of this defense to address its need for discovery. Reeves
A-4765-15T2
25
acknowledged that he understood that this defense would include his
acknowledgement that he fired the shots. There is no indication he was required
to confess.
The issue in In re Mandell, 250 N.J. Super. 125 (App. Div. 2009), cited
by defendant, is inapposite. The issue in Mandell was whether an attorney could
be punished for contempt by not revealing prior to trial whether her client would
testify at trial. We noted that "a defendant is not obligated to give the State
advance notice of intention to testify or not testify" and that "[t]he State was not
entitled to that information until it rested." Id. at 131. Mandell did not address
whether defendant's pre-trial proffer could be used at trial.
Before Reeves testified at the trial, he acknowledged to the trial judge he
was aware he had the right not to testify. There was no discussion that his pre-
trial proffer would be used against him if he did not testify. We agree with the
PCR court that Reeves did not show his attorney's performance on this issue was
below an objective standard of professional performance. Reeves was not
forced to make the proffer and had the choice whether to testify at trial.
Reeves argues he should have had an evidentiary hearing on whether his
attorney was ineffective because his attorney did not ask for a mistrial based on
juror misconduct or ask to have that juror removed, nor did the attorney consult
A-4765-15T2
26
with him regarding those issues. During deliberations, one of the jurors passed
a note that said another juror conducted research on the internet about gangs and
shared that information with other jurors. This was done despite the trial court's
repeated instruction to the jurors not to conduct their own research. The court
interviewed the two jurors and conducted voir dire of the remaining jurors.
Although not all the jurors were aware of the research,
[a]ll the jurors told the court that they could disregard
the information obtained from the internet, that they
could reach a decision based solely on the evidence, and
that nothing occurred that would prevent them from
being fair and impartial. The court instructed them not
to discuss the matter further.
[Scott II, slip op. at 86.]
We agree with the PCR court that Reeves' claim is procedurally barred by
Rule 3:22-5, which precludes Reeves from seeking post-trial relief on the same
issue previously adjudicated. See Preciose, 129 N.J. at 476 (citing R. 3:22-5)
(providing that "a prior adjudication on the merits ordinarily constitutes a
procedural bar to the reassertion of the same ground as a basis for post-
conviction relief"). Issues that are "identical or substantively equivalent" to
issues previously adjudicated will similarly be precluded. See McQuaid, 147
N.J. at 484 (citing Picard, 404 U.S. at 276-77; Bontempo, 170 N.J. Super. at
A-4765-15T2
27
234). We rejected Reeves' claim in his direct appeal that this issue warranted
reversal of his conviction based on plain error. Scott II, slip op. at 86-87.
Reeves also did not satisfy the second part of Strickland that required him
to show the result of the proceeding would be different but for his counsel's
ineffective assistance. Each of the jurors answered the trial court that they could
disregard the information and would decide the case based on the evidence.
Reeves acknowledged he shot Vasquez and there was other corroborating
testimony.
Reeves also claimed ineffective assistance of counsel because his attorney
did not request the trial judge to disqualify himself. Prior to jury selection, the
trial judge advised the parties by letter, he had been informed that Reeves
previously was a participant in a community-based mentoring program called
Omega XIII. The trial judge had been involved in that program since the mid-
1980s, but had no "independent recollection" that Reeves was a participant. The
letter said he kept a distance from the participants as a whole and would recuse
himself and leave if they discussed particular criminal cases. At some point,
Reeves left the program. The trial judge advised he did not see a basis for
disqualification, but asked counsel for their position on that issue. Reeve's
counsel subsequently informed the court that he had spoken with his client and
A-4765-15T2
28
"[f]or the record, he does remember you, and has no objection to you remaining
as judge in this case."
Six years later in his PCR petition, Reeves claimed for the first time that
the trial judge expelled him from the Omega XIII program, and told him not to
return because he was a "bad influence." He contends he told his trial counsel
this. Reeves also alleges that as part of the program, he interacted with the trial
judge on multiple occasions including going to a NCAA game and a banquet.
He said the judge spoke to his mother. The trial judge's answers to
interrogatories said he had no recollection of any of these events.
We agree with the PCR court that this did not warrant PCR relief or an
evidentiary hearing. Reeves' counsel indicated that he had spoken with Reeves
who had no objection to the trial court continuing to hear the case. Reeves '
admitted shooting Vasquez. Numerous other witnesses implicated Reeves in
Vasquez's shooting. There was no reasonable probability that the result of the
proceeding would be different given the evidence.
Reeves argues on appeal that the trial judge showed bias by ruling against
him on motions. He certainly had the opportunity to raise this issue in his direct
appeal and did not. In his PCR petition he provided no substance to support his
claim. The fact that rulings were adverse did not make them wrong or biased.
A-4765-15T2
29
We agree with the PCR court that Reeves simply did not show that his fair trial
rights were violated when the trial judge did not disqualify himself for a conflict
based on his involvement with the Omega XIII program. We are satisfied as
well that the trial judge's participation in the program would not cause a
reasonable, informed person to have doubts about the judge's impartiality nor
that Reeves' fair trial rights were violated.
Reeves also claimed he was deprived of a fair trial because of the trial
judge's involvement in prosecuting Baker as a juvenile. The PCR court correctly
rejected this claim by applying Presley, 436 N.J. Super. 440. In Presley, we
determined that a judge with "a disqualifying conflict as to one defendant is an
insufficient basis for the other defendants to seek nullification of orders entered
by the judge," in the absence of constitutional defect. Id. at 453.
Under Presley, Reeves cannot impute a vicarious conflict based on Baker's
past juvenile history. The trial judge did not demonstrate bias toward Baker,
Scott or Reeves based on Baker's cases as a juvenile, he was not aware of this
claim during Baker's trial, and he did not recognize Baker.
Reeves argues the PCR court erred by denying his petition because the
State withheld exculpatory evidence in violation of Brady.9 He claims he did
9
373 U.S. at 87.
A-4765-15T2
30
not have a copy of a letter from Powell or of an affidavit from Hardy. Powell's
undated letter was written to a different Superior Court judge, and professed
Powell's innocence of the charges then pending against him and offered to
cooperate. The letter did not reference Reeves or Scott or reveal any information
about their participation in the death of Vasquez. Hardy's affidavit, dated
August 4, 2009, said that Powell would do anything to help himself, including
"lie on other inmates." However, the jurat dated in 2008 raised issues about the
affidavit's authenticity.
The PCR court correctly rejected Reeves' request for an evidentiary
hearing. Under Brady, "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution." 373 U.S. at 87. To show entitlement to relief under
Brady, a "defendant must show that: (1) the prosecution suppressed evidence;
(2) the evidence was favorable to the defense; and (3) the evidence was
material." State v. Martini, 160 N.J. 248, 268-69 (1999) (citing Moore v.
Illinois, 408 U.S. 786, 794-95 (1972)). There must be some knowledge by the
State regarding the evidence at issue. United States v. Agurs, 427 U.S. 97, 103
(1976). "[T]he contested evidence must at least be 'in [the prosecutor's] file.'"
A-4765-15T2
31
State v. Carter, 85 N.J. 300, 313 (1981) (second alteration in original) (citing
Agurs, 427 U.S. at 110).
Reeves did not show proof that the Powell letter or Hardy affidavit were
in the State's possession or that it was even aware of them. It is not clear whether
the Hardy affidavit was authentic based on its dates.
Neither the letter nor affidavit was material, meaning "whether there is 'a
reasonable probability' that if the evidence had been disclosed 'the result of the
proceeding would have been different.'" State v. Mustaro, 411 N.J. Super. 91,
101 (App. Div. 2009) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)). Powell was attesting to his innocence in his letter, not to Reeves'.
Powell was cross-examined at trial about the claim in Hardy's affidavit that he
was lying. Therefore, the affidavit added nothing new on the credibility issue.10
We are satisfied that Reeves did not make out a prima facie claim for PCR
relief and that the PCR court appropriately determined an evidentiary hearing
was not needed. See Preciose, 129 N.J. at 462; R. 3:22-10(b). Reeves'
remaining arguments lack sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
10
Reeves also could have raised the issue in his direct appeal but did not. See
R. 3:22-4 (providing any ground for relief not raised in a direct appeal will be
barred from subsequently being brought in a PCR petition).
A-4765-15T2
32
C
Scott argues that because the trial court had prior involvement with
Baker's cases as a juvenile and the mentoring program that Reeves attended, that
he was entitled to PCR relief because of a "shroud of impropriety." We held in
Presley that there is an insufficient basis for a co-defendant, who is not directly
involved with the conflict, to seek to nullify judicial orders, absent a
constitutional defect. 436 N.J. Super. at 453. The same applies here where the
decision was by a jury. We already rejected these claims by Baker and Reeves.
There was no constitutional defect.
Scott contends the PCR court should have ordered an evidentiary hearing
to enable defendants to cross-examine the trial judge. He argues the evidentiary
hearing could have been used to develop evidence about the trial judge's
"partiality." Scott complains an evidentiary hearing was needed to explore why
the State failed to produce the Powell letter and Hardy affidavit.
A PCR court need not conduct an evidentiary hearing unless a defendant
establishes a prima facie case for relief, "there are material issues of disputed
fact that cannot be resolved by reference to the existing record, and . . . an
evidentiary hearing is necessary to resolve the claims for relief." R. 3:22-10(b).
Defendant must show "a reasonable likelihood that his or her claim will
A-4765-15T2
33
ultimately succeed on the merits." Marshall III, 148 N.J. at 158. Our review is
de novo. State v. Parker, 212 N.J. 269, 278 (2012).
The court rules "do not contain any provision authorizing discovery in
PCR proceedings," Marshall III, 148 N.J. at 268, but courts have "the inherent
power to order discovery when justice so requires." Id. at 269 (quoting State ex
rel W.C., 85 N.J. 218, 221 (1981)). In the unusual case where a PCR court will
require discovery, it is to be "narrow and limited," and not a means "for
investigating possible claims, but . . . vindicating actual claims." Id. at 270
(quoting People v. Gonzalez, 51 Cal. 3d 1179 (1990)).
The PCR court did allow limited discovery on the claims that the trial
judge had prior involvement with Baker and Reeves. We have no quarrel with
the type and scope of discovery allowed by the PCR court in light of the
remoteness of the court's alleged involvement, the tardy presentation of the
issues to the court and failure to allege any actual bias by the trial judge. Scott
and the other defendants did not show good cause to compel any further
discovery. 11 He also did not show prima facie proof that he had ineffective
11
Scott's claim that he was denied effective assistance of his PCR counsel
because he could not conduct further discovery does not warrant discussion in
this written opinion. R. 2:11-3(e)(2).
A-4765-15T2
34
assistance of trial counsel. The PCR court was not required to conduct an
evidentiary hearing.
Scott claims he should have had an evidentiary hearing on his claim that
the Powell letter and Hardy affidavit were withheld, but he presented no
evidence that the State was aware of these documents or that they would have
changed the outcome of the trial.
The PCR court denied Scott's request to recuse itself from hearing further
PCR proceedings. Citing Rule 1:12-1(g), Scott alleges a "shadow of
impropriety" was cast over the PCR petition by the PCR court's suggestion that
Scott and Reeves might not have standing to raise Baker's and Reeves' conflict
issues and its limitation on the scope of discovery. In fact, they do not have
standing under Presley. Scott's argument is not supported by our independent
review of the record.
Scott's remaining arguments lack merit in light of our opinion. R. 2:11-
3(e)(2).
Affirmed.
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35
SCHEDULE A
(1) June 1, 1998 letter from an assistant deputy public defender (ADPD) to
the court objecting to the disclosure of information related to Baker in
Docket No. FJ-2690-98. The letter was copied to assistant prosecutor
Daniels.
(2) June 19, 1998 letter from an ADPD confirming another attorney was
taking over Baker's case in Docket No. FJ-2690-98. The letter is copied
to the court and supervising assistant prosecutor Daniels.
(3) Undated letter from an ADPD to the court objecting to the disclosure of
information related to co-defendant Baker in Docket No. FJ-15-2084-97.
The letter was copied to supervising assistant prosecutor Daniels.
(4) November 19, 1993 letter from an ADPD to assistant prosecutor Daniels
notifying him of representation of Baker in Docket No. FJ-1249-94.
(5) Handwritten notes from an unknown author concerning a juvenile matter
involving Baker. Assistant prosecutor Daniels' name is written on one of
the documents.
(6) August 5, 1994 juvenile information disclosure notice signed by
supervising assistant prosecutor Daniels. The notice does not reference
Baker.
(7) Time sheet for an unknown matter, presumably from the public defender,
spanning October 1994 to 1995. The time sheet lists two one-hour
"consultations" with assistant prosecutor Daniels.
(8) August 1996 Notice of Disclosure of Juvenile Information, which is
signed by supervising assistant prosecutor Daniels. The notice simply
recites N.J.S.A. 2A:4A-60(f) and does not reference Baker.
(9) December 1, 1993 court appearance sheet for matter Docket No. FJ-1249-
94, referenced in (4) above. The sheet indicates the matter was a detention
hearing and plea. The sheet lists assistant prosecutor Daniels. In the
notation section, the handwritten notes discuss the probation officer 's
A-4765-15T2
36
attempts to get Baker two residential programs and the need to provide
discovery.
(10) November 17, 1993 court appearance sheet for a detention hearing in
Docket No. FJ-1249-94, referenced in (4) above. The sheet lists assistant
prosecutor Daniels. In the notation section, the handwritten note states:
"Remand. [illegible] report to court to determine whether house arrest is
appropriate."
(11) Undated handwritten notes from an unknown author regarding Docket No.
FJ-1249-94.
(12) April 12, 1994 letter from an unknown ADPD to assistant prosecutor
Daniels notifying him that the Public Defender's Office was retained to
represent Baker in Docket No. FJ-2350-94.
(13) Juvenile Investigations Unit cover sheet containing several handwritten
notes regarding Docket No. FJ-2690-98 involving Baker. It states the
prosecutor assigned as "Daniels," however, an unknown author crossed
out "Daniels" and wrote "Jackson" above the edit.
(14) July 2, 1998 letter from the court to a Ms. Wilson concerning Baker in
Docket No. FJ-15-2690-98. The letter advised Wilson of her right to refer
the claim of ineffective assistance of Baker's counsel to the Attorney
Ethics Committee. The letter was copied to the prosecutor's office and
the assistant prosecutor Daniel's name is handwritten on the letter.
(15) Juvenile Waiver to Adult Court regarding Baker in Docket No. FJ-2690-
98.
(16) Undated juvenile prosecution calendar that lists assistant prosecutor
Daniels for Docket No. FJ-2690-98, the case in which Baker was waived
to adult court.
(17) January 3, 1995 court appearance sheet that lists assistant prosecutor
Daniels. In the notation section it states, "1/23/95 dismissal as part of a
plea agreement."
A-4765-15T2
37
(18) February 14, 1995 court appearance sheet for Docket Nos. FJ-1642-95 and
FJ-2227-95 that list assistant prosecutor Daniels. The notation section on
each sheet states, "[two] y[ea]rs to Jamesburg. Field placement with
mental health component. State decided not to disclose because possible
extraordinary harm to [illegible]—Mental health treatment needed." It is
signed with assistant prosecutor Daniels' initials.
(19) Juvenile delinquency case disclosure form setting forth the disposition of
Docket No. FJ-1642-95. It is signed in assistant prosecutor Daniels'
initials.
(20) January 30, 1996 letter to Baker denying him entry to the Juvenile
Intensive Supervision Program. A handwritten note on the letter is
addressed to assistant prosecutor Daniels' initials. It states, "what do I do
with this?" A handwritten response states, "[p]lease file."
(21) Juvenile Delinquency Public Disclosure form for Baker in Docket No. FJ-
1269-97. A different assistant prosecutor is listed.
(22) October 18, 1996 letter to the court from an ADPD objecting to the
disclosure of Baker's identity in Docket No. FJ-1269-97. The letter is
copied to supervising assistant prosecutor Daniels.
(23) Notice of Parole Release for Baker in Docket No. FJ-1269-97 signed in
assistant prosecutor Daniels' initials.
(24) October 10, 1996 court appearance sheet for a detention hearing in Docket
No. FJ-1269-97 that lists assistant prosecutor Daniels. It states the
juvenile was remanded and sets a second hearing date.
(25) Four juvenile complaints filed by assistant prosecutor Daniels against
Baker in connection with Docket No. FJ-98-04-59. The search warrant
issue date for each complaint is listed as September 9, 1997.
(26) April 27, 1998 letter to assistant prosecutor Daniels advising the "case is
good against Baker" in Docket No. FJ-2690-98.
A-4765-15T2
38
(27) September 27, 1994 letter from an ADPD advising of his representation
of Baker in Docket No. FJ-666-95. In a handwritten note, assistant
prosecutor Daniels is mentioned as having the case.
(28) January 23, 1995 court appearance sheet in Docket No. FJ-1642-95 that
lists assistant prosecutor Daniels. A handwritten note indicates count one
to be dismissed and count two "guilty," with assistant prosecutor Daniels
"to handle sentence."
A-4765-15T2
39