STATE OF NEW JERSEY VS. KEVIN BAKER AND SEAN WASHINGTON (95-08-1950, CAMDEN COUNTY 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NOT FOR PUBLICATION WITHOUT THE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-0716-17T3
A-0719-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN BAKER and SEAN
WASHINGTON,
Defendants-Appellants.
__________________________
Argued October 7, 2019 – Decided December 26, 2019
Before Judges Sabatino, Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 95-08-1950.
Lesley C. Risinger and Lawrence S. Lustberg argued
the cause for appellants (Last Resort Exoneration
Project Seton Hall University Law School, attorneys
for Kevin Baker; Gibbons PC, attorneys for Sean
Washington; Lesley C. Risinger, D. Michael Risinger,
Lawrence S. Lustberg, and J. David Pollock, on the
joint briefs).
Natalie A. Schmid Drummond, Special Deputy
Attorney General/Acting Assistant Prosecutor, argued
the cause for respondent (Jill S. Mayer, Acting Camden
County Prosecutor, attorney; Natalie A. Schmid
Drummond, of counsel and on the briefs).
Frank Muroski, Deputy Attorney General, argued the
cause for amicus curiae Office of the Attorney General
(Gurbir S. Grewal, Attorney General, attorney; Sarah
Lichter, Deputy Attorney General, of counsel and on
the brief).
Raymond M. Brown argued the cause for amici curiae
Askia Jabir Nash, Rodney Roberts, David Shephard,
and Anthony Ways (Greenbaum, Rowe, Smith & Davis,
LLP, attorneys; Raymond M. Brown, of counsel and on
the brief; Stephanie Reckord and Robert J. Flanagan,
III, on the brief).
Linda Mehling argued the cause for amici curiae
Innocence Project, Exoneration Initiative, and
Innocence Network (Frank R. Krack and Linda
Mehling, on the brief).
PER CURIAM
After a two-day jury trial in 1996, defendants Kevin Baker and Sean
Washington were found guilty of murdering two victims who had been shot to
death outside of a Camden housing project. The State's case hinged upon the
testimony of a sole eyewitness, a drug addict who claimed she had seen the
shooting and saw defendants running from the scene. Defendants' convictions
were upheld on direct appeal and in ensuing collateral proceedings.
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With the assistance of pro bono counsel and innocence organizations,
defendants filed new petitions for post-conviction relief ("PCR"), alleging actual
innocence, ineffective assistance of trial counsel, and prosecutorial suppression
of material evidence. They also moved for a new trial based upon newly
discovered evidence, including forensic expert proof utilizing scientific
techniques that did not exist or were not widely available at the time of their
trial. After a lengthy evidentiary hearing, the judge who had presided over the
trial rejected defendants' petitions and motions.
For reasons detailed in this opinion, we reverse the trial court's denial of
relief and grant defendants a new trial. We do so mainly because of the newly
discovered forensic evidence that powerfully undermines the sole eyewitness's
varying descriptions of the shooting, coupled with non-forensic exculpatory
proof of a 9-1-1 recording the defense obtained many years after the trial.
Viewed objectively, that material evidence, if it had been presented,
probably would have changed the jury's verdict. The additional proof calls into
serious question whether defendants' guilt was established beyond a reasonable
doubt. The circumstances were "clearly capable of producing an unjust result."
R. 2:10-2. We do not, however, declare defendants to be "actually innocent,"
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but instead provide the State with the option of pursuing a second trial, mindful
of the lengthy intervening passage of time.
TABLE OF CONTENTS
I. Facts and Procedural History ....................................................................... 5
A. Indictment and Trial ............................................................................... 5
B. Verdict and Sentencing ........................................................................ 15
C. Washington's Appeal ............................................................................ 16
D. Washington's First PCR Petition ........................................................... 16
E. Washington's Federal Petition for a Writ of Habeas Corpus and Second
PCR Petition ............................................................................................. 19
F. Baker's Appeal and First PCR Petition .................................................. 19
G. Baker's Habeas Petition and Second PCR Petition ............................... 23
H. Defendants' Current PCR Petitions and Motions for a New Trial .......... 24
1. Baker's Filing and Litigation Regarding Redden's Deposition ............ 24
2. Testimony of Forensic Witnesses ...................................................... 24
3. Washington's Filings and Motion Practice ......................................... 31
4. Fact Witnesses ................................................................................... 32
a. Washington's Testimony and Supporting Witnesses ....................... 32
b. Baker's Testimony and Supporting Witnesses ................................ 41
5. Other Evidence .................................................................................. 48
I. The PCR Court's Decision ..................................................................... 48
J. Defendants' Appeals .............................................................................. 49
II. Overall Legal Standards ........................................................................... 50
A. PCR ..................................................................................................... 51
B. New Trial Motions ............................................................................... 52
III. The Newly Discovered Evidence ............................................................ 57
A. Forensic Evidence ................................................................................ 57
B. Proof of Washington's Identity As the 9-1-1 Caller ............................... 68
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C. The Other Non-Forensic Proofs ............................................................ 71
IV. Impact of the Additional Proofs .............................................................. 72
V. Ineffective Counsel Claims ...................................................................... 74
VI. Brady v. Maryland Issues ....................................................................... 78
VII. Remaining Points .................................................................................. 79
VIII. Conclusion ........................................................................................... 80
I.
(Facts and Procedural History)
Because of the significant issues at stake, we discuss the facts and
procedural history in extensive detail.
A. Indictment and Trial
In 1995, a Camden County Grand Jury charged defendants Baker and
Washington in Indictment No. 95-08-1950 with the following offenses:
conspiracy to commit first-degree murder, N.J.S.A. 2C:5-2 (count one); two
counts of first-degree murder, N.J.S.A. 2C:11-3(a) (counts two and three);
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a) (count four); third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b) (count five); and second-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7 (counts six and seven).
The parties tried the case before a jury in July 1996. Baker was
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represented by Frederick L. Gumminger from the Office of the Public Defender,
and Washington was represented by private counsel, Michael W. Kahn. The
State called six witnesses during the two-day trial. Defendants did not call any
witnesses.
The prosecutor, in his opening, called it "a one-witness case" and said that
the "evidence is going to come from the testimony of Denise Rand principally."
After opening statements, the court held a Wade 1 hearing to consider the
reliability of Rand’s identification of defendants as the perpetrators. She
testified at the hearing that she knew Washington "since he was little." She
testified she knew Baker for five or six years, although she previously said, in
her statement to investigator Harry Glemser of the Camden County Prosecutor's
Office a few days after the murders, that she knew Baker for two years, and gave
further inconsistent answers in her trial testimony.
The court ruled after the Wade hearing that the State proved by clear and
convincing evidence that Rand's in-court identification of defendants was not
the result of a suggestive out-of-court identification, because Rand knew both
defendants before the murders and there was not a substantial likelihood of
misidentification.
1
United States v. Wade, 388 U.S. 218 (1967).
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At trial, Rand testified that she was at Roosevelt Manor, a housing project
in Camden, in the early morning hours of January 28, 1995, and witnessed the
murders. She claimed she saw victim Margaret Wilson, who was known as
"Murph," and victim Rodney Turner, who was known as "Rock," when they
were shot and "they dropped" to the ground. According to Rand, she heard "two
or three shots" and had "seen two" shots before defendants ran past her.
Rand claimed she knew that defendants shot Wilson and Turner "because
[defendants were the] only two that ran past me." She recalled she saw both
Baker's and Washington's faces, and she had no doubt in her identification of
them. Rand did not know if defendants saw her that morning, and could not
recall what they were wearing.
Rand, who sometimes wore glasses, vacillated on many aspects of her
narrative. She first said that she saw one of the defendants with a gun in his
hand, but could not remember which one. Later, she testified that she only saw
Baker with a gun in his hand, not Washington. The prosecutor attempted to use
Rand's police interview with Glemser to refresh her recollection, and after
reading a portion of the transcript, Rand initially said that both defendants had
guns. She later said that she only saw a gun in Washington's hand and could not
recall if Baker had a weapon.
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When confronted with the portion of transcript in which Rand told
Glemser she was not paying attention to see if defendants had weapons when
they ran past her, she responded that she "was standing there" and "just had to
be paying attention." She explained that her response to Glemser that she was
not paying attention "was the answer at the time." She acknowledged, however,
that she "wasn't paying no attention."
Rand could not recall which defendant shot Turner, and which one shot
Wilson. She continued reading from the transcript of her police interview that
she saw Turner "get shot first" and that "K.B." shot him. 2 Rand stated that the
transcript refreshed her recollection, but initially testified that she could not
recall seeing "K.B." shoot Turner, before later saying she remembered seeing
"K.B." shoot Turner in the head. She testified that Washington shot Wilson.
When asked "how close together" the shootings were, Rand responded that
"[t]hey lay right next to each other." 3
After the shooting, Rand went and got Turner's wife, Sandra Turner. By
2
At the evidentiary hearing, Baker acknowledged that people referred to him
as "K.B."
3
In context, the prosecutor's question appears to be asking how much time
elapsed between the two shootings, but Rand interpreted it instead as asking
about the physical distance separating the two victims.
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the time Rand returned to the scene the police had arrived.
Rand admitted that she had gone to Roosevelt Manor to buy drugs, that
she had smoked "ready rock" crack cocaine approximately two hours before the
shootings, and that at the time she smoked crack every two to three hours.
Although she admitted being under the influence at the time of the murders, she
claimed she was "not to the point where I don’t know what I'm seeing."
Rand agreed that the sun had not yet risen at the time of the shootings,
before 6:00 a.m. in January 1995, and that it was "still basically nighttime," but
also confusingly said "it was dark, but it was light" and "it wasn't tha t dark."
She was standing on the curb of Phillip Street and the shooting occurred in the
courtyard halfway between Phillip Street and 8th Street. 4 According to Rand,
defendants ran past her and then down Phillip Street towards Ferry Avenue.
When asked who she was with at the time, Rand initially answered that it
was "none of your business," before saying that she was accompanied by her
cousin, Tyrone Moore. She testified that he was walking a few feet behind her
at the time of the shootings. She was confronted, however, with the police
interview in which she told Glemser that Moore was walking in front of her.
4
The maps in defendants’ appendix referred to the street as both "Phillip" and
"Phillips."
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She then confusingly said that Moore was "in front of me, behind me, he was
there" and repeated that he was in "[f]ront of me, behind me." After saying she
did not remember where Moore was in relation to her, she said, "I turned around,
he was gone." She initially was unsure whether that was before or after the shots
were fired, but later said she was sure it was after they were fired.
Rand testified that she knew Washington "for a long time" meaning "since
he was little." She did not know Baker for "that long," but estimated she knew
him for "some years." On cross-examination, Rand admitted telling Glemser
that she knew Baker for two years and testifying at the Wade hearing that she
knew Baker for five years, before stating that she could not recall how long she
knew Baker.
None of the State's other trial witnesses observed the shooting. Detective
Fred Jefferson of the City of Camden Police Department testified that he was a
patrol officer at the time of the murders and was dispatched to Roosevelt Manor
at 5:57 a.m. He arrived approximately three to five minutes later and confirmed
that it was still dark and also "very cold" at that time. Jefferson saw two bodies
in the courtyard of the complex, one laying "semi-fetal" and the other "flat on
their [sic] stomach." He secured the scene and located empty casings from a
nine-millimeter (mm) semi-automatic weapon. Jefferson said Turner's father
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came to the crime scene.
Investigator Michael Corbin of the Camden County Prosecutor's Office
received a pager notification at 6:11 a.m. on the morning of the murders, when
it was still dark outside. He arrived at Roosevelt Manor at 7:05 a.m. Corbin
testified that the distance from Phillip Street, where Rand said she was standing,
to Turner’s and Wilson's bodies, was approximately ninety feet. At the scene,
Corbin collected three cartridge cases with "a head stamp of SB 9 millimeter
Luger." He assumed the projectiles within those casings were fired from an
automatic weapon. Neither Jefferson nor Corbin were aware of anyone claiming
to be an eyewitness while they were at the crime scene.
Sergeant John Jacobs, the unit supervisor of the New Jersey State Police
ballistics unit at the time of the murders, was qualified in the State's case as an
expert in ballistics and firearms. Jacobs explained that all three of the
discharged shells were nine-millimeter caliber and manufactured by "Squires
Bighams."5 He examined the discharged shells and determined that they were
all fired from the same firearm, but was unable to determine the particular
firearm involved, although it would have been a "9 millimeter Luger caliber
5
The transcript says "Squires Bighams," but the correct name may be Squires
Bingham.
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type."
Jacobs was unable to determine if the shells were discharged from a
revolver or an automatic weapon, although he recognized that an automatic
weapon would eject the discharged shells when it was fired, whereas a person
would have to manually remove the shells from a revolver. He could not discern
the "lands and grooves" on the two bullets recovered from Wilson’s clothing
due to their "mutilated condition." Thus, he was unable to determine if the
bullets were fired from the same gun as the discharged shells, or to say
definitively how many guns were used in the murders.
George Hickman from the State Police crime laboratory was presented as
an expert in trace evidence analysis. Hickman testified that gun powder and
lead were detected in the area around the two bullet holes in Wilson's white knit
hat, which indicated "a relatively close shot."
Dr. Robert Segal, the Camden County Medical Examiner, performed the
autopsies on Turner and Wilson. Dr. Segal was qualified as an expert witness
in forensic pathology and wound ballistics. He opined that Turner died from a
bullet fired from within a half-inch of his head, entering behind his left ear, and
exiting behind his right ear. Wilson, meanwhile, died from two gunshot wounds
to her head and a "relatively minor" gunshot wound to her left arm. Two bullets
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entered the right side of her head above her ear and exited on the left side of her
face, one near the corner of her mouth and the other near the corner of her eye.
There was also a "single through and through" bullet wound to her left arm.
Dr. Segal was unable to determine if Wilson was shot two or three times,
because the wound to her left arm could have been a continuation wound from
one of the bullets that exited the left side of her face. He testified "[t]here is no
way to tell whether this bullet passing through the arm was related to eithe r of
these two [head] wounds or was a third wound."
At the time of trial, Baker had two prior indictable convictions: a January
1991 fourth-degree aggravated assault for pointing a firearm at another person
and a January 1993 possession of cocaine with intent to distribute within 1000
feet of school property. Washington had four prior convictions for third -degree
possession of a controlled dangerous substance, two from July 1990, and two
from March 1992. The State moved to use defendants' prior convictions to
impeach their credibility, if they testified. The court granted the State's motion,
but ordered the convictions sanitized to include only the degree of the crime, the
date of conviction, and the sentence imposed. Following that ruling, neither
defendant testified at trial.
Tyrone Moore, Rand's cousin was with her at the time of the murders and
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told police that they were blocks away and that Rand could not have seen the
shootings. He was listed as a potential defense witness and prepared to testify.
So was Baker's girlfriend, Michelle Redden, who maintained that she was with
Baker at the time of the shootings. Neither was called to testify, however, as
defendants did not offer any evidence on their behalf.
During summations, the court prevented defense counsel from suggesting
that Moore may have killed Turner and Wilson. After their own closing
arguments, both defense attorneys moved for a mistrial because the prosecutor
repeatedly and loudly interrupted them. The court denied the motions. Th e
following day, before jury instructions, both defense attorneys again moved for
a mistrial, arguing, in part, that the court's ruling preventing them from
suggesting that Moore might have been the murderer violated defendants' rights.
The court also denied those motions. The defense attorneys then moved for a
judgment of acquittal, which the court denied.
The court did not instruct the jury on the lesser-included offenses of
aggravated manslaughter and manslaughter because "the only evidence as to
what allegedly occurred is the testimony of [Rand] who indicated she saw the
defendants basically walk up behind the victims, point a gun and shoot the two
victims in the head and flee."
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B. Verdict and Sentencing
The jury convicted defendants of two counts of first-degree murder,
conspiracy to commit murder, and possession of a weapon for an unlawful
purpose. It acquitted defendants of unlawful possession of a weapon.
Both defendants moved for judgment notwithstanding the verdict, which
the court denied. Defendants were then tried on the certain persons not to have
weapons charges, but the jury could not reach a verdict, the court declared a
mistrial, and those charges were dismissed on the prosecutor's motion.
On September 20, 1996, after merging the other convictions into the
murder convictions, the court sentenced each defendant to two consecutive
terms of life imprisonment, each with a thirty-year period of parole ineligibility,
for an aggregate sentence of life in prison with a sixty-year parole ineligibility
period. At sentencing, the court remarked that both defense attorneys had made
tactical decisions not to call any witnesses, including at least one witness who
was present in the courthouse, because they apparently thought Rand was not a
credible witness and the jury would not believe her.
Defendants filed motions for a new trial, but withdrew those motions after
filing their notices of appeal. On November 21, 1996, the court nonetheless
issued written findings of fact and conclusions of law regarding defendants'
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motions pursuant to Rule 2:5-1(b).
C. Washington's Appeal
In March 1999, this court affirmed Washington's convictions and
sentence. State v. Washington, No. 3943-96 (App. Div. March 17, 1999). The
panel added that "[a]s to [his] alibi contention, . . . we express no view as to its
merit, leaving it for post-conviction review." The Supreme Court denied
Washington's petition for certification. State v. Washington, 161 N.J. 150(1999).
D. Washington's First PCR Petition
In January 2000, Washington filed a pro se PCR petition, alleging
ineffective assistance of counsel for failure to call witnesses, including Moore,
Redden, and his nephew, Dwight Collins. In November 2000, after hearing
argument from Washington's appointed counsel, John Havrilchak, the trial court
denied the petition.
After Washington appealed, we remanded for the trial court to determine
whether Washington's trial counsel was ineffective for failing to call Collins as
a witness. State v. Washington, No. A-3140-00 (App. Div. June 27, 2002). We
specifically directed the trial court to hold an evidentiary hearing and assess
Collins's credibility.
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On March 25, 2003, the trial court held a hearing in which Collins testified
that Washington was cooking chicken at Collins's mother's house on the morning
of the murders at approximately 5:00 a.m. According to Collins, around 6:00
a.m., Washington left to make a call from the pay phone near the intersection of
Eighth Street and Central Avenue, which was about a one-minute walk from
where the bodies were found, because Washington did not want to use the phone
in Collins's mother's house. Collins said that Washington may not have wanted
to use his mother's phone because he was selling drugs, or, alternatively, because
he was calling someone out of the local area and his mother's phone service was
supposedly limited to local calls.
Washington returned approximately five to seven minutes later, "very
emotional" and "crying." Washington told Collins that he saw two people laying
on the ground, and that he thought one of them was Collins's brother Darnell
Wheeler (who was also Washington's nephew), because Wheeler had a similar
jacket. According to Collins, Washington then called 9-1-1 from Collins's
mother's phone.
Collins testified that Baker and Washington knew each other, but were not
close friends, and that he had never seen them "hang out together." Collins
confirmed that if he had been called at trial, he would have testified on
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Washington's behalf.
After observing Collins’s testimony at the March 2003 evidentiary
hearing, the court found he was not credible because was a convicted felon who
admitted to using false identification documents.6 The court also found he was
biased because he was Washington's nephew. It further found that Collins's
testimony placed Washington close to the location of the shootings at the
approximate time they occurred.
The court concluded Collins's testimony would not have affected the
outcome of the trial and denied Washington's PCR petition. Washington then
moved to reopen the PCR proceedings to present additional evidence, but the
court denied the motion.
In November 2005, we affirmed the PCR court's denial of Washington's
petition. State v. Washington, A-4730-02 (App. Div. Nov. 9, 2005). In February
2006, the Supreme Court denied his petition for certification. State v.
Washington, 186 N.J. 255 (2006). Justice Long and Justice Albin added a
separate statement in which they "note[d] that in their view, the Court's [order]
does not preclude defendant from bringing a further petition for post-conviction
6
Although Collins had a criminal record at the time he testified at Washington's
PCR hearing, he did not have one at the time of Washington's trial.
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relief in respect of witness-related issues that were not fully considered by the
trial court or the Appellate Division on the merit." State v. Washington, 189
N.J. 640 (2006).
E. Washington's Federal Petition for a Writ of Habeas Corpus and
Second PCR Petition
Washington thereafter filed a pro se petition for a writ of habeas corpus
(habeas petition) in federal district court, but later withdrew it without prejudice
so that he could file a second PCR petition in state court. Washington v. Ricci,
631 F. Supp. 2d 511, 515 (D.N.J. 2008). He then filed a pro se PCR petition and
motion for a new trial, both of which the trial court denied on November 28,
2007.
Washington reinstated his federal habeas petition, which the federal
district judge dismissed with prejudice on September 29, 2008. Ricci, 631 F.
Supp. 2d at 513, 528. The district court also denied Washington a certificate of
appealability ("COA"). Ibid. On May 13, 2009, the United States Court of
Appeals for the Third Circuit denied Washington's application for a COA.
F. Baker's Appeal and First PCR Petition
In February 1998, we affirmed Baker's convictions and sentence on direct
appeal. State v. Baker, No. A-1143-96 (App. Div. Feb. 23, 1998). We
specifically rejected Baker's claim that his trial counsel was ineffective for
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failing to obtain expert witnesses to testify about eyewitness identification and
the effects of crack-cocaine. We also rejected Baker's argument that
prosecutorial misconduct required reversal of his convictions, although we
chastised the prosecutor's behavior as "loud, boorish and rude" and referred the
matter to the Camden County Prosecutor.
In May 1999, Baker, represented by Edward J. Crisonino, filed a PCR
petition alleging ineffective assistance of trial counsel. One of the issues raised
in Baker's PCR petition was that his trial attorney Gumminger was ineffective
for failing to call several witnesses, including Redden, Moore, and Latasha
Langston.7
The trial court concluded that Gumminger was not ineffective and that his
decision "not to call witnesses was a strategic move based upon the decision at
that time that the witness called by the State was not credible and the jury would
not believe her."
On October 29, 1999, the trial court held an evidentiary hearing and heard
testimony from Baker and Gumminger regarding Baker's contentions that
Gumminger did not meet with him enough prior to trial and also incorrectly told
him he could not testify because the jury would hear his unsanitized c riminal
7
Langston's first name is spelled "Latesha" in some transcripts.
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record.
Gumminger clarified at the outset of his PCR testimony that he did not
"have [his] file with [him]" and was testifying based solely on his memory. He
thought he met with Baker four to six times prior to trial. He advised Baker not
to testify, but in the end it was Baker's decision, although Gumminger could not
recall if he told Baker that his prior record would have been sanitized at trial.
Gumminger confirmed that Redden was present in the courthouse during
the trial and prepared to testify. Gumminger explained he did not call her
because, based on her "general demeanor," she "would not have come across as
a truthful witness." According to Gumminger, Redden claimed that she was
watching a television program featuring Larry Kane 8 with Baker at the time of
the murders. He decided not to call her as a witness because the prosecutor was
prepared to call witnesses from the television station to "contradict the timing,
and maybe even the existence of this television show." Gumminger said that his
primary concern in advising Baker not to testify was not Baker's prior record,
but instead that the "phantom television show" created a risk that "the alibi
would have blown up and would have caused more problems than it would have
helped." Gumminger believed that Redden "was profoundly afflicted with
8
The transcript incorrectly refers to "Larry King."
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credibility problems."
After hearing Gumminger's PCR testimony, the court denied Baker relief
on his claims. The court found that Gumminger met with Baker prior to trial
and made a justifiable strategic decision not to call Redden to testify, because
he believed she was not credible and the alibi testimony would be contradicted
by the State's evidence. The court also found that Baker made the ultimate
decision not to testify.
In March 2001, we remanded the matter to the trial court to allow Baker
to develop and pursue his claim that trial counsel was ineffective for failing to
investigate and present evidence that Washington was the "lone gunman." State
v. Baker, No. A-1543-99 (App. Div. March 15, 2001). We instructed that "[o]n
remand, the judge may set time limitations and other conditions to assure a fair
and expeditious final determination of the merits of [Baker's] claim."
On remand, Baker submitted an affidavit from Langston. Baker also
furnished an investigative report recounting an interview with Collins, who
alleged that he was with Washington around the time of the murders. The trial
court found that Baker failed to prove that his trial counsel was deficient or that
there was a reasonable probability that the outcome of his trial would have been
different, and denied his PCR petition.
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In November 2003, we affirmed the denial of Baker's PCR petition,
without prejudice to him filing a subsequent petition arguing that his PCR
counsel was ineffective. State v. Baker, No. A-3759-01 (App. Div. Nov. 14,
2003). In February 2004, the Supreme Court denied Baker's petition for
certification. State v. Baker, 179 N.J. 312 (2004).
G. Baker's Habeas Petition and Second PCR Petition
In December 2004, Baker filed a habeas petition in federal district court
alleging ineffective assistance of counsel. On September 26, 2005, Judge
Jerome B. Simandle denied Baker's petition. Judge Simandle noted, however,
that Baker had not exhausted his claim that PCR counsel was ineffective and
could still raise that issue in a subsequent PCR petition in state court. According
to the State's brief, both Judge Simandle and the United States Court of Appeals
for the Third Circuit denied Baker's application for a COA, but those orders are
not included in the parties' appendices.
In May 2007, Baker, now represented by Louis H. Miron, filed another
PCR petition, alleging ineffective assistance of PCR counsel, but later withdrew
that petition and did not refile it.
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H. Defendants' Current PCR Petitions and Motions for a New Trial
1. Baker's Filing and Litigation Regarding Redden's Deposition
In January 2013, Baker filed the instant PCR petition and motion for a
new trial. Before filing his petition and motion, Baker unsuccessfully sought a
court order, first in the Civil Part and then in the Criminal Part, that would permit
him to take a de bene esse deposition of Redden because she was suffering from
stage-four terminal breast cancer. We affirmed both the Civil Part's and
Criminal Part's denials of Baker's application, but added that "in light of
defendant's additional filings, the criminal court must reconsider defendant's
application to compel Ms. Redden's testimony at either a deposition or an
evidentiary hearing." In re Petition of Baker, Nos. A-3754-11 and A-4368-11
(App. Div. April 30, 2013). Redden died before she was deposed.
2. Testimony of Forensic Witnesses
The trial court heard testimony from defendants' forensic witnesses in
support of Baker's motion for a new trial before deciding whether to grant an
evidentiary hearing. 9
9
The testimony of the forensic witnesses occurred before Washington filed his
PCR petition and motion for a new trial. The forensic witnesses did not testify
a second time, and the PCR court considered their testimony in connection with
both Baker's and Washington's claims.
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Dr. Michael Baden, who was certified as an expert in forensic pathology,
testified on November 12, 2013. Dr. Baden concluded that Turner had been shot
once from close range on the left side of his head while his head was positioned
upright. He estimated that Turner had been dead for at least fifteen minutes
before the emergency medical technicians ("EMTs") arrived based on their
observations about blood coagulation and the temperature of the body.
Dr. Baden concluded that only two bullets struck Wilson, based on the
following facts: (1) the entry and exit wounds in Wilson's head lined up with
the wounds on her arm; (2) the wounds to her arm were superficial perforations
that did not go all the way through her arm or connect to each other; and (3) the
bullets were found in her clothing. He further testified that Wilson was shot
while lying on the ground with her left arm raised against her head, because the
bullet tracts were nearly parallel, which indicated that Wilson was not moving
at the time she was shot. In addition, if she had been upright when she was shot,
her body would not have fallen in the position it was found, and she would have
had blood dripping down her body. On cross-examination, Dr. Baden
acknowledged it was possible that Wilson was shot while standing upright, but
said it was "so unlikely that I would fault such a diagnosis." On redirect, he
stated he was "[m]ore than 95 percent certain" that Wilson was shot while she
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25
was lying on the ground.
Dr. Baden particularly disagreed with two of the medical examiner’s
conclusions from trial. First, he disagreed that the wound to Wilson's arm was
a through and through wound from a single bullet, because there were two
separate wounds that did not connect. Second, he disagreed with Dr. Segal's
conclusion that there was no way to tell if the wounds to Wilson's arm were from
a third bullet or a continuation from the two bullets that passed through Wilson's
head. According to Dr. Baden, if the wounds in Wilson's arm were from a third
bullet, they would "have to line up, one being the entrance, one being the exit,
and there being a tract between the two[,]" which was not the case.
Dr. Baden concluded that Wilson was shot twice, and the wounds to her
arm were continuation wounds from the two bullets that passed through her
head. If she had been shot directly in the arm, the bullet would have gone all
the way through. The two bullets found in her clothing were "spent" because
they already had passed through the hard bones of her skull twice, which slowed
them down "greatly" and prevented them from going through her arm.
Last, Dr. Baden opined that a hypothetical in which a person said he or
she saw two people run up to the victims and shoot them in the head while they
were standing, and then saw the victims drop to the ground, as Rand had
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26
testified, would be "totally inconsistent with the way [Wilson] was shot and the
way she was found."
Baker also presented expert testimony from Lucien C. Haag, who was
qualified as an expert in ballistics, firearms identification, wound ballistics, and
shooting incident reconstruction. Haag agreed with Jacobs's trial testimony that
the three shell casings recovered at the scene were fired from the same weapon.
He further opined that all three casings were fired from a semi-automatic pistol,
which differed from Jacobs's testimony that he could not identify the type of
firearm.
Haag explained that nine mm revolvers that fire Luger ammunition were
"very rare." He stated he would "have a hard time finding one" because, unlike
revolver cartridges, the Luger cartridges had no rim, which made them difficult
to remove from a revolver. Additionally, in Haag's forty-seven years of
experience, he was only aware of two instances in which shell casings were
manually removed from a revolver at the scene of the crime. In both instances,
it was done so that the shooter could reload the revolver, leading him to question
Jacobs's testimony that it was a possibility in this case.
Haag also disagreed with Dr. Segal's trial testimony that the lack of "lands
and grooves" on the two projectiles recovered from Wilson's clothing was due
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27
to their degraded condition. He explained that it actually was due to shallow
rifling, which is "a signature of very inexpensively made semi-automatic
pistols." Haag testified that both bullets were fired from the same firearm, again
contradicting Segal's testimony at trial that it could not be determined. Haag
opined that the evidence did not support a conclusion that more than one gun
was used in the shootings.
Haag examined the projectiles the day before his PCR testimony and
discovered mineral grains as well as "abrasive damage . . . not from just hitting
bone," which indicated that the bullets struck hard-packed soil. He also
observed what he called the "bow effect," which occurs when a bullet ricochets
off soil and the mineral grains "act just like a sand blasting" and leave "scoring"
and "scratching" on the projectile. Crime scene photographs showed that the
ground under Wilson's head was a "hard packed bare earth area" that was
consistent with the mineral particles embedded in the tips of the bullets. Haag
therefore concluded that the bullets struck the ground and ricocheted off at low
velocity before they penetrated Wilson's arm. He opined that there was no way
that could have occurred if Wilson was shot while she was standing upright and
ruled that out as a possibility.
Haag's cross-examination in the PCR hearing did not occur until almost a
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28
year later. He acknowledged that Turner died from a through-and-through bullet
wound. Because the bullet that killed Turner was not recovered, and the murder
weapon was never found, Haag could not rule out that a second firearm was
involved, though he saw no evidence to support that notion.
On re-direct, Haag testified that he first described the bow-effect
phenomenon in 1996, and that it started to be disseminated in the "firearms and
tool marks community" in 2002. He agreed that the SEM/EDS 10 testing done by
the State Police laboratory showed the presence of silica and several other
minerals not associated with bone on the bullets. Haag also agreed that very
few laboratories would have had a scanning electron microscope at the time of
defendants' trial.
The parties stipulated in the PCR hearing to the admissibility of an expert
report by Adele Boskey, Ph.D. She concluded that the high levels of silicon on
the bullets could only have come from an exogenous source, most likely silicon
dioxide in sand or dirt. In addition, Dr. Baden submitted a supplemental report
that modified his initial conclusion that the bullets passed through Wilson's skull
10
As defined in defendants' brief, SEM/EDS refers to scanning electron
microscopy with energy dispersive spectroscopy, which allows for an item to be
examined at high magnification and analyzed to determine which chemical
elements are present.
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and then directly into her arm. Incorporating Haag's findings, Dr. Baden
concluded that the bullets ricocheted off the ground before hitting Wilson's arm.
Stephen Deady, who worked in the ballistics unit for the State Police and
the Ocean County Sheriff's Department, was qualified at the hearing as an expert
in firearms identification and ballistics. He agreed with Haag that the two
recovered bullets were most consistent with those used in the nine mm Luger
caliber casings recovered at the scene, and likely were fired from an
"inexpensive, cheaply made firearm," but he could not rule out other cartridges
of the same caliber class because no firearm was recovered. He also agreed that
the three shell casings were fired from the same firearm, but could not determine
the type of firearm, though they were "consistent" with being discharged from a
semi-automatic pistol, which was "the most common firearm from which they
would be fired."
Deady posited, however, that the three shell casings would have a
magazine mark, extractor mark, and ejector mark if they had been loaded into
the magazine of a semiautomatic pistol and then extracted and ejected manually
before being loaded in, and discharged from, a revolver. Thus, he could not
determine what type of firearm discharged the shell casings. He agreed with
Jacobs's trial testimony that more than one gun could have been involved in the
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murders. All Deady could say conclusively was that the three shell casings were
discharged from the same firearm, that the two bullets were fired from the same
gun, and that he could not tell if the bullets and casings were fired from the same
weapon.
Haag then testified in sur-rebuttal that the ejector marks on the shell
casings were so deep that they could not have been made by manually ejecting
the shells from a semiautomatic weapon. In addition, the combination and
spatial orientation of the ejector mark, firing pin impression, and extractor mark,
led him to conclude that the shell casings were discharged from a nine mm semi-
automatic pistol. The relationship between the three marks was too consistent
for them to have been manually ejected from a semiautomatic pistol and the n
fired from a revolver.
3. Washington's Filings and Motion Practice
Washington filed his own additional PCR petition and motion for a new
trial in September 2014. Defendants filed a joint motion to consolidate their
PCR petitions and later filed a motion for relief in the nature of summary
judgment.
On June 16, 2016, the trial court entered an order and accompanying
opinion denying those motions, but granting defendants an evidentiary hearing.
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4. Fact Witnesses
a. Washington's Testimony and Supporting Witnesses
Washington testified that he was having dinner and drinks with Beverly
Branch in her apartment in Roosevelt Manor between 10:00 p.m. and 1:00 a.m.
the night before the murders. He then went to another apartment, also in
Roosevelt Manor, where a "bunch of males," including his nephew Wheeler and
Raheem Miller, were drinking alcohol, smoking blunts, and listening to music.
He asked Raheem to "roll [him] up a joint," but Raheem told him "you don’t
want none of this" because it was laced with PCP, which Washington previously
had told them to stop smoking. Washington got mad and left around 4:30 a.m. 11
According to Washington, he borrowed Wheeler's car and went back to
Branch's apartment, but she could not get something to eat with him because her
children were sleeping. He drove back towards the party and saw Moore, who
flagged him down and asked if he wanted to buy some boneless chicken breasts.
Washington paid him ten dollars for the chicken. Washington testified that this
was not unusual because drug users were "always . . . running around sell ing
things late at night."
11
We use Raheem Miller's first name to avoid confusion because his mother
Patricia Miller was a witness at the evidentiary hearing.
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As recounted by Washington, he dropped the chicken off at his sister's
apartment, drove to buy soft drinks, returned to his sister’s apartment, and fried
the chicken. He accidentally woke his nephew, Collins, and as they were talking
and eating the chicken, Washington's pager went off. He admitted that he used
the pager to deal drugs.
About twenty minutes later, Washington went to the pay phone near
Eighth Street and Central Avenue to make the call, because the area code was
not in Camden and his sister's phone was restricted to local calls. He brought
fifty-five cents for the call, saying he knew the amount because he had placed
the same call many times before, but the call did not go through, so he walked
around looking to borrow money from someone. He explained that it was a
"drug-infested area" and "people would be out all hours of the morning selling
drugs, and people would be out there looking for drugs."
As Washington was walking, he noticed "a pile of something" on the
ground, and as he approached and was about six to eight feet away, he realized
it was two bodies in a pool of blood. He screamed "oh, my God, they dead, they
dead" and people came to their windows to see what was happening.
Washington thought one of the bodies was his nephew, Wheeler, because he saw
an Army fatigue jacket similar to the jacket Wheeler was wearing earlier that
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morning. As he ran back to the pay phone to call 9-1-1 he saw Moore, who
"yelled [the victims’] names, and then . . . took off running."
Washington testified it was his voice in the audio recording of the 9 -1-1
call reporting the deaths. After calling 9-1-1, he returned to the scene and
remained there for three or four minutes until the police arrived, after which he
went back to his sister's apartment and asked Collins about Wheeler. He called
Wheeler from the phone in the apartment but could not reach him. Washington
thought Wheeler was one of the victims even after Moore said it was "Rock"
and "Murph," because he did not trust Moore and he was "traumatized" and
upset.
Washington returned to the scene and encountered Patricia Miller on the
way, and told her he had just found two dead bodies and thought one of them
was his nephew. After staying at the scene for "a while," he went back to
Branch's apartment and woke her up, crying, and told her what had happened.
After discovering that he was wanted for murder, Washington left
Camden. He went to Newark, and then Trenton. While in Trenton, he learned
that a man in Camden had been shot and killed and people thought Washington
was the victim because they looked alike. He returned to Camden and was
arrested on March 22, 1995.
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Washington admitted selling drugs in the area of Roosevelt Manor, and
occasionally hearing gunshots. He recognized that it was a dangerous area but
said he did not fear for his safety. Washington admitted he was an "enforcer"
in the drug trade, but denied ever owning a gun, although other friends and
family members carried weapons. Washington claimed he had a fear of guns
from the time he was young because his uncle died when a friend accidentally
shot him.
Washington acknowledged he was charged with two additional homicides.
In one case, a woman named Mary Trusty identified Washington and Wheeler
as the individuals who murdered her cousin, but they were acquitted. Trusty was
also the first person to identify Washington as a suspect in the murders of Turner
and Wilson.
According to Washington, he told his trial counsel Kahn the first time they
met that he made the 9-1-1 call, and Kahn said he would get the tape and have
the voice analyzed. Washington also asserted he told all of his prior attorneys
that he made the 9-1-1 call, but none of them obtained a copy of the recording,
and he was not aware that a recording existed until Baker's current counsel
obtained a copy in 2013. Washington explained that he had refused to sign an
affidavit prepared for one of his PCR hearings because it incorrectly stated that
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35
he had called 9-1-1 from his sister's apartment, instead of the pay phone.
Washington testified that Collins incorrectly stated that Washington called
9-1-1 from the apartment.
Washington admitted he knew Baker, but stated he did not get along with
him and they were not friends. Washington grew up in Roosevelt Manor, but
Baker did not move to the neighborhood until he was eleven or twelve. They
"didn't associate" because Baker "got into it one time with a gentleman from the
neighborhood that [Washington] was cool with" and because Baker previously
dated a girl that Washington later dated. Washington was aware that Baker sold
drugs.
Washington also knew Turner, and although he "knew of" Wilson, he only
knew her name and would not be able to recognize her. Around 2010 or 2011,
Washington learned that Raheem Miller, who was by that point deceased, had
told people that he shot Turner and Wilson.
Langston testified at Washington's hearing that two or three "close"
gunshots woke her sometime in the morning of January 28, 1995, but she went
back to sleep because "it was the norm." She was later awakened by a voice that
sounded like Washington. Langston was unsure what time the shooting woke
her or how long she fell back asleep before she heard Washington. She thought
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36
that Washington was yelling for help and saying, "I'm bleeding," because he had
been shot, but her boyfriend clarified that Washington said "they bleeding."
According to Langston, she went to her window and saw Washington
walking towards the phone booth on the corner of 8th Street, and assumed he
called the police. She remained at her window, and shortly afterwards she saw
Washington return to the scene. Her boyfriend went outside and asked
Washington what happened, to which Washington responded that there were two
dead bodies in the courtyard.
Around that time Moore appeared at the scene, grabbed a stick that he
used to lift the victims' hoods to reveal their faces, and said that the dead bodies
were "Rock" and "Murph." "Murph" was Langston's cousin. Raheem Miller
was her brother. Langston further testified that the voice on the 9-1-1 recording
sounded like Washington.
Patricia Miller, Raheem's mother, testified that she heard gunshots that
morning and ran to her children's rooms, but Raheem was not home. About
fifteen minutes later she went outside, where she encountered Washington, who
was "very emotional" and "had tears in his eyes." She asked him what was
wrong, and he said that he thought his nephew Wheeler had been shot and was
laying on the ground dead. She recognized the voice on the 9-1-1 call as
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37
Washington's voice.
Branch, who was romantically involved with Washington at the time of
the murders, testified that on the morning of the shootings Washington came to
her house "very upset." He kept repeating, "They were dead." She also
recognized Washington's voice from the 9-1-1 recording.
Lamont Powell testified that on the night before the murders he was at a
party at his cousin's house in Roosevelt Manor "smoking weed and drinking"
with Wheeler, Washington, who he called Stump, and Raheem, who he called
Lump. Washington left in the early morning hours, and Raheem, who had
smoked angel dust, decided that he was going to kill a witness in his brother's
unrelated murder trial. Raheem, along with Wheeler, dressed in black and told
Powell that they then went to a nearby house and kicked the door in, but the
witness escaped. Wheeler left, and Raheem remained behind to wait for the
witness to return, but was spotted by two people who said his name, so he shot
them. Powell said that he did not "care for" Baker and was not friends with
anyone at the apartment except Raheem.
Powell had a lengthy criminal history and had recently been sentenced to
thirty-three months in prison for violating community supervision after serving
a ten-year federal prison term. At the time of defendants' trial, he would not
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38
have helped them unless Raheem gave him permission. Although he was friends
with Raheem and said he "loved him," Powell also said that Raheem's death was
"one of the best things that probably ever happened in this world" because he
was "evil."
Henrietta Washington, Washington's mother, identified her son's voice as
the caller in the 9-1-1 recording. Harriet Fleming, Washington's sister, also
identified Washington as the caller. Likewise, Collins identified Washington as
the caller in the 9-1-1 recording.
John Hamilton, an EMT, also testified at the hearing. Hamilton had been
dispatched to the crime scene at 5:56 a.m. and arrived at 6:01 a.m. His report
indicated that the two victims had been dead for approximately fifteen minutes.
On cross-examination, he admitted that fifteen minutes was "a best guess."
Robert Waszazak, who was also an EMT, testified that he might have moved
Wilson's body to check her pulse and her pupil responsiveness, but was not sure.
Eric Winch, the director of I.T. projects at Seton Hall Law School,
testified about an estimated timeline of events he created based on the 9-1-1
calls, police dispatch communications, and the distances between various
locations. On cross-examination Winch acknowledged various assumptions and
limitations that influenced his estimates.
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39
Harry Reubel, an investigator in the Camden Region Office of the Public
Defender, ("OPD") became involved with Washington's PCR petition in 2002.
Reubel testified that the area where the shootings occurred was not visible from
10th Street and Van Hook Street, which was where Moore said he and Rand had
been at the time of the incident. 12 He also testified that the only information
provided to him by PCR counsel indicated that the shootings occurred at 5:57
a.m. He interviewed Collins, but could not locate Redden or Rand. He
confirmed that Collins told him Washington called the ambulance and the police
from a phone in the apartment.
Kahn, who represented Washington at trial, testified at the PCR hearing
that he did not consider consulting a forensic pathologist, firearms examiner, or
shooting incident reconstruction expert, and that an ordinary criminal defense
lawyer in 1996 would not have done so either. From the first time Kahn met his
client, Washington maintained that he was cooking chicken that morning and,
when he went outside, he discovered the bodies and called 9-1-1.
Kahn admitted that he "did very little" to investigate Washington's claims,
but he did send an investigator to interview Collins shortly before trial. Kahn
12
Van Hook Street has been renamed Carl Miller Boulevard since the time of
the murders.
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40
said Washington provided him with the names of other people to corroborate his
account, but he did not interview them. Kahn acknowledged he did not try to
determine a timeline of events or the physical layout of the surrounding area.
Kahn was not aware that a recording of the 9-1-1 call existed. When it
was played for him, he was "absolutely clear" that Washington was the voice on
the recording and said that Washington sounded "distraught and upset." Kahn
stated that if he had obtained the recording before trial, it "absolutely . . . would
[have] changed everything" because he would have called Washington to the
stand and "introduced that tape to corroborate his testimony."
Kahn admitted that he did not appropriately investigate the case before
trial and "made an inappropriate and inaccurate decision . . . that this was best
thought of as a one witness case." His inaction was based on the State's inability
to locate Rand for a period of time prior to trial and his belief that Rand was a
"very, very poor witness," who he characterized as "a prostitute, strung out on
crack."13
b. Baker's Testimony and Supporting Witnesses
Baker testified that he was with Redden at her mother's house in Roosevelt
13
That court granted the State several continuances so that it could locate Rand.
She eventually was located and held on a material witness warrant.
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41
Manor cooking shrimp between midnight and 2:00 a.m. on January 28, 1995.
Around 2:30 a.m., a friend, Teddy Hilton, gave them a ride to Redden's
apartment in the Fairview section of Camden. 14 They went to sleep around 4:00
a.m., and remained inside the apartment for the rest of the day. He first learned
about the murders when Redden's brother came by the apartment and told them
what had happened. Baker did not recall watching any news programs about the
murder with Redden. His PCR testimony was consistent with what he told the
police after he was arrested.
At the time of the shootings, Baker knew who Washington was, but was
not friends with him. The State offered Baker a plea deal of eight years in prison
if he cooperated against Washington, but he could not give the police any
information because he did not know anything about the shootings. Baker
claimed that he had pled guilty to one of his prior felony convictions even though
he was innocent in return for a favorable plea deal.
Sharay Redden, Michelle Redden's sister, testified that Michelle died of
breast cancer in September 2013. 15 Michelle consistently repeated, over almost
twenty years, that Baker was at her apartment in the Fairview section of Camden
14
Hilton was deceased at the time of the instant PCR hearing.
15
Her name is spelled both Sharay and Shray in the record.
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42
at the time of the shootings and that he was not involved in the murders.
Another witness, Vinson Montgomery, was formerly the polygraph
examiner for the OPD and was certified as an expert in the field of polygraphs.
In 2008, he performed a polygraph examination of Baker in which Baker denied
taking part in the killings of Turner and Wilson. He called Baker's polygraph
results "amazing” and said he had a "high degree of confidence that Mr. Baker
was telling the truth."
Gumminger, Baker's trial counsel, testified that Baker and Redden
maintained that Baker was with Redden in her apartment at the time of the
shooting. When he went over Glemser's report with Redden in November 1995,
she identified several errors. In particular, Glemser wrote that Redden said her
brother woke her and Baker "in the earlier hours of the morning" and informed
them that "Murph" had been shot and killed. Redden clarified to Gumminger,
however, that she told Glemser her brother woke her and Baker when it was
"light out but approaching evening" and informed them that "Murph" and
"Rock" had been killed.
More significantly, Glemser wrote that Redden told him that shortly after
her brother woke them up, she and Baker watched a television show called “The
Bulletin with Larry Kane” in which he discussed the murders. Glemser then
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43
reached out to KYW News 3 in Philadelphia, which confirmed that Kane’s show
did not air the morning of the murders. Redden, however, told Gumminger that
what she actually said to Glemser was that she was watching a show like “The
Bulletin with Larry Kane,” and it was about the general murder rate in Camden.
She saw a news report about the murders later that evening. Those discussions
between Gumminger and Redden were reflected in contemporaneous notes in
his file, which he reviewed with counsel at the PCR hearing.
Defendants’ counsel played for the court a recording from the 11:00 p.m.
news, which started with a promotion for "The Bulletin with Larry Kane,"
included a report on the murders, and featured an interview with a prosecutor
about the murder problem in Camden. Several Philadelphia television station
reporters were present at the press conference about the murders. Gumminger
testified that the recording "confirm[ed]" Redden's recollection and
"undermine[d]" Glemser's report. He explained that although it did not prove
Baker's whereabouts at the time of the murders, that fact was understandable
because Baker and Redden were asleep at the time. He further explained that
the video was of "extremely high value" because "it corroborate[d] the
truthfulness of [Redden's] testimony and the veracity of it" and "show[ed] that
she ha[d] a full, firm grasp on the sequence of events on that given day."
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Gumminger admitted he had "adopted as fact" Glemser's report and
"mistakenly took Glemser's version of events and misunderstood them to
contradict what [Redden] was saying when, in fact, it was not contradicting what
she was saying at all," but instead "misrepresenting" Redden's account. He
testified that his misunderstanding was the main reason he did not call Redden
as a witness at trial and that otherwise he would have called her to testify.
Gumminger acknowledged he "could have discovered this information . . . and
. . . undermined Glemser's report, or proceeded with the alibi," which would
have been "much stronger." He also said that at Baker's first PCR hearing he
was still under the mistaken impression that Glemser's report would undermine
Redden's alibi statements. He added that he had never previously seen Glemser's
letter to KYW News, or their response to him.
Gumminger did not have access to his case file when he testified as a
witness for the State in Baker's first PCR hearing, and he repeated his trial errors
because he still mistakenly believed that the State had undercut Redden's alibi
testimony.
Gumminger confirmed that he received Moore's polygraph report in
discovery. Moore denied murdering "Murph" and "Rock," being present when
they were murdered, or knowing who committed the murders. He failed the
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polygraph test, however, which indicated that he was lying. Rand was not given
a polygraph examination, and Gumminger believed that was an intentional tactic
by the State to intimidate Moore and undermine his testimony.
Gumminger explained he did not call Moore as a trial witness because he
wanted to argue that Moore was the shooter and Rand was protecting him. He
did not realize that the court would not permit him to argue Moore was the
shooter during his summation without any corroborating evidence, and
acknowledged that his "misapprehension of the law" prevented him from calling
Moore as a witness. If he had a better understanding of the law, Gumminger
said he would have called Moore as a witness to contradict Rand.
At the PCR hearing under review, Gumminger listened to an audio
recording of Rand's police interview, and believed that when first asked to
identify the shooters, she said the initials "J.D.," not "K.B.," as reflected in the
transcript of the interview that was produced to defendants prior to trial. He
explained that if he had the recording prior to trial he would have used it to
support his argument that Rand did not know Baker "very well and her
identification was shaky." Gumminger confirmed that at the time it was not
typical for audio recordings to be turned over, only transcripts, and that he did
not ask for the recording of Rand’s police interview. He also confirmed that
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46
there was no one with the initials "J.D." involved in the case, but said that he
would have used this information to support an argument that Glemser "put the
words K.B. in her mouth."
Gumminger also listened at the hearing to an audio recording of the police
interview of Mary Trusty. In the recording, Trusty told police that Rand said
she was present when the shootings occurred, but Rand did not tell Trusty
whether she witnessed the shooting. Trusty explained that Rand “might as well
say it" and that Rand "didn’t say who did the shootings, because [Trusty] already
had knew." Trusty added that she “knew” because she heard "talk" that
Washington was the shooter. Gumminger said that Trusty's failure to name
Baker, and her statement that her knowledge about who shot Wilson and Turner
was based on second-hand "talk," would have been useful at trial.
Crisonino, Baker's first PCR counsel, said he had pursued a theory that
Washington was the lone gunman. Baker initially advanced that theory in the
current PCR proceedings, but abandoned it once the State produced the 9-1-1
recording and his counsel established that Washington was the caller.
Michael Klein, a former manager in the Public Defender's Office, testified
that Baker's second PCR counsel never submitted a request for an expert and did
not do much work on the case.
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5. Other Evidence
On the second-to-last day of the PCR hearing, defendants' counsel
indicated to the court that although they served subpoenas on Rand and Moore,
the two did not appear at the hearing. Nonetheless, counsel declined to request
a bench warrant. Instead, they submitted a certification dated September 19,
2012, from Carla Johnson, who was deceased at the time of the hearing, claiming
that Rand said she did not witness the murders. They submitted another
certification dated March 14, 2003, from Anna Griffin, who was also deceased
at the time of the hearing, stating that she had overheard Rand recant her trial
testimony.
I. The PCR Court's Decision
On August 31, 2017, the court entered an order denying defendants' PCR
petitions and motions for a new trial. The court explained its reasoning in a 112-
page decision that predominantly recounted the testimony set forth above. The
court found that Baker, Washington, Kahn, Gumminger, Collins, Langston,
Powell, and Winch all were not credible witnesses. It assumed, without
deciding, that a freestanding actual innocence claim was cognizable in New
Jersey, but held that defendants did not meet their burden to show that they were
innocent.
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Among other things, the court determined that defendants' ineffective
assistance of counsel claims were time-barred. Proceeding nonetheless to the
merits of those claims, the court concluded defendants' trial attorneys were not
deficient and defendants did not suffer prejudice from their attorneys' failure to
call potential witnesses at trial. The court also found the prosecutio n did not
suppress material evidence.
The court further ruled that defendants did not establish that newly
discovered evidence entitled them to a new trial, either because the evidence
could have been discovered prior to trial through the exercise of reas onable
diligence, or because it would not undermine the jury's verdict.
J. Defendants' Appeals
Defendants both appealed, and we listed their appeals back-to-back. We
entered an order granting a motion of Askia Jabar Nash, Rodney Roberts, David
Shephard, and Anthony Ways to participate as amici curiae (the "exoneree
amici") in support of defendants. We also entered orders granting amici status
to the Innocence Project, the Exoneration Initiative, and the Innocence Network
(innocence organization amici) in support of defendants.
We further granted the Attorney General's motion to file an amicus brief
on a self-selected limited basis to address solely the question of whether an
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49
“actual innocence” standard should or needs to be adopted under New Jersey
law. We permitted all amici parties to participate in oral argument. We have
consolidated defendants’ appeals, which were calendared together, for purposes
of this single opinion. 16
II.
(Overall Legal Standards)
Defendants contend the PCR court erred by declining to set aside their
convictions based on newly discovered evidence and the alleged ineffectiveness
of their previous counsel. As part of their arguments, defendants and the amici
aligned with them advocate that New Jersey courts adopt more receptive
standards for entertaining such claims. They argue wrongfully convicted
persons in our state should be permitted to gain relief if they show they are
"actually innocent" of the crimes for which they had been found guilty,
regardless of customary procedural bars that may disallow such claims.
We need not address these contentions for a change in New Jersey law
because, as our analysis will show, defendants are entitled to a new trial under
our existing analytical framework governing PCR and claims of newly
16
We are most grateful for the helpful written and oral advocacy of the amici.
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discovered evidence. Moreover, any ultimate change in the legal framework is
more appropriately for the Supreme Court, and not this intermediate appellate
court, to consider.
Defendants' claims implicate well-established legal standards for claims
of newly discovered evidence and PCR petitions. The standards are somewhat
related and overlapping. They consist of the following.
A. PCR
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)). It serves as a safeguard to ensure that a
criminal defendant was not unfairly convicted and is the "last line of defense
against a miscarriage of justice." State v. Nash, 212 N.J. 518, 526 (2013).
The grounds for post-conviction relief include, in relevant part:
(a) Substantial denial in the conviction proceedings of
defendant's rights under the Constitution of the United
States or the Constitution or laws of the State of New
Jersey; [or]
....
(d) Any ground heretofore available as a basis for
collateral attack upon a conviction by habeas corpus or
any other common-law or statutory remedy.
[R. 3:22-2.]
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The burden is on the defendant to establish his or her right to post -conviction
relief "by a preponderance of the credible evidence." Nash, 212 N.J. at 541
(quoting Preciose, 129 N.J. at 459).
If a trial court holds an evidentiary hearing on a motion for a new trial or
a PCR petition, an appellate court generally "applies a deferential standard; it
'will uphold the PCR court's findings that are supported by sufficient credible
evidence in the record.'" Pierre, 223 N.J. at 576 (quoting Nash, 212 N.J. at 540).
Appellate courts do not defer to a trial court's interpretation of the law, which is
reviewed de novo. Ibid. When considering mixed questions of law and fact, we
will defer to the PCR court's factual findings that are supported by the record,
but exercise plenary review over "the lower court's application of any legal rule
to such factual findings." Id. at 577. Subject to certain exceptions we will apply,
infra, we ordinarily defer to a trial court's credibility determinations because it
has the ability to observe the testimony firsthand. Pierre, 223 N.J. at 576.
B. New Trial Motions
Rule 3:20-1 governs motions for a new trial, which in the post-conviction
context often are brought in conjunction with a PCR petition. A new trial motion
"based on the ground of newly-discovered evidence may be made at any time .
. . ." R. 3:20-2. A court must examine newly discovered evidence "with a certain
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52
degree of circumspection to ensure that it is not the product of fabrication[.]"
State v. Ways, 180 N.J. 171, 188 (2004). Nonetheless, "[h]owever difficult the
process of review, the passage of time must not be a bar to assessing the validity
of a verdict that is cast in doubt by evidence suggesting that a defendant may be
innocent." Ibid.Newly discovered evidence is sufficient to warrant a new trial only if it
is: "(1) material to the issue and not merely cumulative or impeaching or
contradictory; (2) discovered since the trial and not discoverable by reasonable
diligence beforehand; and (3) of the sort that would probably change the jury's
verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981).
All three prongs of the Carter test must be satisfied to grant a new trial. Ibid.Under the first prong of the Carter test, evidence is material if it "would
'have some bearing on the claims being advanced.'" Ways, 180 N.J. at 188(quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). To that
end, "[c]learly, evidence that supports a defense, such as alibi, third -party guilt,
or a general denial of guilt would be material." Ibid.In order to determine "whether evidence is 'merely cumulative, or
impeaching, or contradictory,' and, therefore, insufficient to justify the grant of
a new trial requires an evaluation of the probable impact such evidence would
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have on a jury verdict." Id. at 188-89. "Therefore, the focus properly turns to
prong three of the Carter test, whether the evidence is 'of the sort that would
probably change the jury's verdict if a new trial were granted.'" Id. at 189(quoting Carter, 85 N.J. at 314).
Thus, it is clear that the first and third prongs of the Carter test are
"inextricably intertwined." Nash, 212 N.J. at 549. Indeed, the "analysis of
newly discovered evidence essentially merges the first and third prongs of the
Carter test." State v. Behn, 375 N.J. Super. 409, 432 (App. Div. 2005). Under
that rubric, "[t]he characterization of evidence as 'merely cumulative, or
impeaching, or contradictory' is a judgment that such evidence is not of great
significance and would probably not alter the outcome of a verdict." Ways, 180
N.J. at 189. By contrast, evidence "that would have the probable effect of raising
a reasonable doubt as to the defendant's guilt would not be considered merely
cumulative, impeaching, or contradictory." Ibid. (emphasis added).
In short, the "power of the newly discovered evidence to alter the verdict
is the central issue, not the label to be placed on that evidence." Id. at 191-92.
Appellate courts "must engage in a thorough, fact-sensitive analysis to
determine whether the newly discovered evidence would probably make a
difference to the jury." Id. at 191.
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The second prong of the Carter test "recognizes that judgments must be
accorded a degree of finality . . . ." Id. at 192. That prong therefore requires
that the "defense . . . 'act with reasonable dispatch in searching for evidence
before the start of the trial.'" Nash, 212 N.J. at 550 (quoting Ways, 180 N.J. at
192). Under that prong, the evidence must not have been discoverable prior to
trial through the exercise of "reasonable diligence" in the context of the specific
circumstances of each case. Reasonable diligence does not require "totally
exhaustive or superhuman effort." Behn, 375 N.J. Super. at 428.
That said, a defendant "is not entitled to benefit from a strategic decision
to withhold evidence." Ways, 180 N.J. at 192. A defendant gains no strategic
advantage, however, if her or his attorney "fails to discover or overlooks
exculpatory evidence." Ibid. For that reason, the New Jersey Supreme Court
has recognized the "important caveat" that evidence "'clearly capable of altering
the outcome of a verdict that could have been discovered by reasonable diligence
at the time of trial would almost certainly point to ineffective assistance of
counsel.'" Nash, 212 N.J. at 550 (quoting Ways, 180 N.J. at 192).
With respect to newly discovered scientific evidence, Rule 3:20-2
"presents a viable means by which a defendant can seek a new trial if he can
now show that recently improved scientific methodology, not available at the
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time of trial, would probably have changed the result." State v. Halsey, 329 N.J.
Super. 553, 559 (App. Div. 2000). Courts recognize that "[s]cience moves
inexorably forward and hypotheses or methodologies once considered
sacrosanct are modified or discarded." Behn, 375 N.J. Super. at 429. Thus, the
"judicial system, with its search for the closest approximation to the 'truth,' must
accommodate this ever-changing scientific landscape." Ibid.When, as here, a defendant presents scientific evidence in support of a
motion for a new trial, the court must decide whether, at the time of trial, the
science supporting the defense argument was established. For instance, in State
v. Peterson, 364 N.J. Super. 387, 398 (App. Div. 2003), the court held that DNA
testing qualified as newly discovered evidence even though "early forms of
DNA testing were in use at the time of defendant's trial" because it had "become
more common and more reliable in the intervening fourteen years." Of course,
there can be "no doubt" that scientific evidence "not developed until after
defendant's trial" constitutes newly discovered evidence because "no amount of
reasonable diligence could have uncovered" evidence that "did not exist
previously." Behn, 375 N.J. Super. at 429.
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III.
(The Newly Discovered Evidence)
Defendants argue that the newly discovered forensic evidence, as
presented by Dr. Baden, Haag, and in Boskey's report contradicts and severely
undermines Rand's account of the shootings. They further contend Rand
recanted her trial testimony, as reflected in two certifications from deceased
witnesses. They also point to several other non-forensic proofs, including the
seven identifications of Washington's voice on the 9-1-1 recording, which they
contend are strongly exonerative.
A. Forensic Evidence
Defendants argue the forensic testimony was not discoverable with
reasonable diligence prior to trial and is material because it probably would
change the jury’s verdict. The PCR court agreed with defendants that Haag's
report and testimony—which showed that the bullets that killed Wilson
ricocheted off the ground and therefore that she was lying down when she was
shot—could not have been discovered prior to trial through reasonable
diligence. We concur.
Defendants' trial was in 1996, the same year Haag first identified the bow-
effect phenomenon, which was not widely disseminated throughout the
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scientific community until 2002. Very few laboratories were equipped with a
scanning electron microscope at the time of trial.
We disagree, however, with the trial court's separate conclusion that
Haag's findings were not material and probably would not change the jury's
verdict if a new trial were granted. The court believed Haag's new evidence
would not contradict Rand's account because she never literally testified that
Wilson was standing when she was shot. Therefore the court did not deem the
scientific proof material under Carter. The court's decision on this aspect of the
Carter test is reviewed de novo because it requires an application of the law to
the facts of the case. Behn, 375 N.J. Super. at 433.
The evidence presented by Haag was "clearly not cumulative since no
comparable evidence was offered at trial." Behn, 375 N.J. Super. at 431. The
evidence would impeach Rand's testimony, so the question becomes whether it
would probably change the jury's verdict if the court granted a new trial. Nash,
212 N.J. at 549; Ways, 180 N.J. at 188-89. We believe it would.
Although Rand never explicitly testified that Wilson was standing when
she was shot, the gist of her testimony was that both victims were standing, as
confirmed by the entirety of the record.
Specifically, the prosecutor asked Rand to describe what she witnessed,
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and she answered that she saw Turner and Wilson "when they dropped." When
asked who was shot first, the transcript indicates that Rand said she saw "them
drop first," but the court immediately clarified that Rand said she saw "him"
drop first, referring to Turner. Thus, Rand's trial testimony plainly reflects her
contention that both victims were standing when they were shot and then
dropped to the ground. 17
Rand also testified that "the whole shooting" lasted a couple of seconds,
which was consistent with her police interview, during which she told Glemser
that defendants shot the victims "a couple seconds" after they ran up to them and
the "whole thing" lasted only a "couple of seconds." She explained to Glemser
that defendants "came from around the corner, like out of nowhere[,]" ran up to
Wilson and Turner, shot them in the head, and then kept on running. Rand stated
she was certain that defendants were running the whole time, and that it was not
"an on-going thing." She agreed that defendants "ran up on 'em, shot 'em, and
then kept on runnin." Indeed, Rand said that she would not have witnessed the
17
The only portion of Rand's testimony that arguably could be read to suggest
that Turner and Wilson were on the ground when they were shot was when she
said that "[t]hey lay right next to each other[.]" We interpret that remark to
mean that the victims' bodies ended up on the ground next to each other, a s
shown in the crime scene photographs, not that they were lying down before
they were shot.
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shootings if the incident lasted any longer because she would have fled the
scene.
Notably, Glemser understood Rand's account to be that the victims were
shot while they were standing. He wrote in his supplemental report that "Rand
state[d] that this entire situation only took a couple of seconds and immedi ately
after both victims were shot in the head, they fell to the ground as both suspects
identified as Kevin Baker and Sean Washington continue[d] running away from
the victims." (Emphasis added).
At trial, the trial judge seemingly understood Rand's testimony to be that
defendants shot the victims while they were standing. That is reflected in his
reason for not instructing the jury on the lesser-included offenses of aggravated
manslaughter and manslaughter. He stated, "[T]he only evidence as to what
allegedly occurred is the testimony of [Rand] who indicated she saw the
defendants basically walk up behind the victims, point a gun and shoot the two
victims in the head and flee."
Rand's account of the killings was, in essence, a "run-by shooting." By
contrast, the new forensic evidence shows it likely was an execution-style
killing, in which at least one victim was forced to lie on the ground before being
shot. Rand's account realistically would not allow time for defendants to
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approach Turner and Wilson, order them to lay on the ground, and then shoot
them.
When examining the impact of newly discovered evidence, it must be
"placed in context with the trial evidence . . . ." Ways, 180 N.J. at 195. An
appellate court therefore must consider the State's proofs at trial. See ibid.(characterizing State's proofs as "far from overwhelming"). Here, there is a
patent weakness in the State's case against defendants, which another panel of
our court previously characterized as "not overwhelming."
Rand's trial testimony was the only eyewitness evidence linking
defendants to the murders. At best her account was inconsistent and at times
incoherent.
For instance, Rand stated at the time of the murders "it was dark, but it
was light." She first testified that she saw one defendant carrying a gun, but
could not recall which one. She later testified that she only saw Baker with a
gun, not Washington. She then testified that she only saw Washington with a
gun, not Baker. In her police interview, however, when asked if she saw anyone
holding a gun, Rand said she paid no attention. After being directed to read that
portion of her statement while she was on the stand, she testified that she "just
had to be paying attention[,]" before admitting that she "wasn't paying no
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attention." She later said that was "the answer at the time[,]" as if the facts of
what she witnessed could change. Rand was also untruthful about her
willingness to testify.
At trial, Rand could not remember who was shot first or which defendant
shot each victim until she read those critical facts from portions of her police
interview.18 Even after reading her statement, she initially could not recall if
she saw Baker shoot Turner.
As we previously noted, Rand's answers about how long she knew Baker
varied from not being able to recall because she "kept forgetting" to "not that
long" to "some years," to "several years" to "two years" to "five or six" years.
Rand initially testified that Moore was behind her at the time of the
shootings, but in her police interview she said he was in front of her, and after
being alerted to the discrepancy, said that he was in "[f]ront of me, behind me[,]"
before changing her testimony to reflect that Moore was in front of her, and then
changing it again to say that she did not remember.
It must be underscored that Rand was a known drug addict who smoked
crack cocaine every two to three hours, which she characterized as "not that
18
Rand was even uncertain about whether the transcript she read was of her
police interview.
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often[.]" She was admittedly high at the time of the murders. She was
approximately ninety feet away when the shooting occurred and it was dark
outside. The entire incident took only a "couple of seconds." She also saw a
gun, or multiple guns, depending on whether one credits her police interview or
trial testimony.
These perception factors all can influence an eyewitness identification. In
State v. Henderson, 208 N.J. 208, 261-66 (2011), the Court recognized each of
them – intoxication, distance, lighting, duration, and the distraction of a visible
weapon – as "estimator variables" that can impede the accuracy and reliability
of eyewitness identifications.
Dr. Baden's testimony further supported Haag's conclusion that Wilson
was laying on the ground when she was shot. He consistently testified that,
based on the trajectory of the two bullets, Wilson was shot twice while lying on
the ground with her arm next to her head. After receiving Haag's report, Dr.
Baden filed a supplemental report, opining that the bullets ricocheted off the
ground before entering Wilson's arm. He asserted that Rand's testimony was
"totally inconsistent with the way [Wilson] was shot and the way she was
found."
The court found that Dr. Baden essentially was offering a new opinion
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based on old evidence. The court, however, did not distinguish adequately
between the various aspects of Dr. Baden's testimony.
For instance, it is not clear that Dr. Baden's conclusion that Wilson was
shot twice and that the bullets entered her arm after passing through her skull –
which is the portion of his testimony relevant here–was discoverable prior to
trial with reasonable diligence. At trial, the medical examiner testified that
"[t]here is no way to tell whether this bullet passing through the arm was related
to either of these two [head] wounds or was a third wound." If Dr. Baden's
conclusion was discoverable with reasonable diligence prior to trial, then the
medical examiner also should have discovered it. See Behn, 375 N.J. Super. at
433 ("Having offered these proofs and argued their significance, the State should
not be permitted to now 'walk away' from its evidence and demean its
importance.").
Moreover, the pertinent question is not whether the evidence was
theoretically discoverable at the time of trial, but whether a reasonably diligent
attorney would have discovered it prior to trial. Peterson, 364 N.J. Super. at
398. Kahn and Gumminger were experienced criminal defense attorneys.
Notably, Kahn in particular testified that he had not used forensic experts at the
time of defendants' trial, that he did not consider retaining a forensic expert, and
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that a reasonably diligent attorney would not have done so at that time, all of
which suggest that a reasonably diligent attorney would not have retained a
forensic expert at that time.
The trial court found that Gumminger and Kahn generally were not
credible, but made no specific findings with respect to their testimony about
retaining a forensic expert. 19 If that testimony was credible, then a reasonably
diligent attorney would not have discovered the forensic evidence prior to trial.
If, on the other hand, the attorneys' testimony was not credible, it still must
be remembered that evidence "'clearly capable of altering the outcome of a
verdict that could have been discovered by reasonable diligence at the time of
trial would almost certainly point to ineffective assistance of counsel.'" Nash,
212 N.J. at 550 (quoting Ways, 180 N.J. at 192). "It hardly bears mentioning
that '[w]e would not require a person who is probably innocent to languish in
prison because the exculpatory evidence was discoverable and overlooked by a
19
The court found that Kahn was not credible because he was "trying to help a
former client" and the new attorneys "convinced" him that he should have done
more at trial. We note, however, that it was apparent at trial and sentencing that
Kahn believed that Baker's conviction was unjust. The court gave no reasons
for its finding that Gumminger was not credible, and specifically found that he
was credible about one thing, that he and Baker discussed the problems with
calling Redden as a witness given her lack of credibility. See Ways, 180 N.J. at
196 ("We find it somewhat curious that the PCR court found [the witness]
incredible in all respects but this one.").
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less than reasonably diligent attorney.'" Ibid. (alteration in original) (quoting
Ways, 180 N.J. at 192).
Haag also testified that only one gun likely was used in the murders. The
trial court, however, found that defendants "have not proved a second weapon
was not involved" to a degree of "practical certainty" and it therefore could not
"exclude the existence of two weapons being used, by two shooter[s]." The
court was correct that Haag’s testimony did not "prove" only one gun was used.
But that is not the proper test to apply to newly discovered evidence. The proper
test is whether the new evidence "probably" would have changed the outcome
of the trial. Behn, 375 N.J. at 432.
Here, the testimony that only one gun was used would have sharply
contradicted Rand's account of events. Although Haag could not completely
rule out the possibility that a second gun was used, it was very unlikely. 20 Even
Deady agreed that Haag's testimony was the most likely explanation, although
he recognized that it was not certain or provable because the bullet that killed
Turner and the gun were never recovered. The forensic likelihood that only one
20
Rand's testimony that the shootings lasted a couple of seconds also undercuts
the State's theory that one of the defendants may have fired a revolver, because
it left no time for the shooter to manually remove the three spent rimless casings
from the revolver.
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gun was used in the murders, in combination with the evidence showing that
Wilson was laying on the ground when she was murdered, is yet another point
that would undercut Rand's shaky testimony.
The forensic evidence contradicting Rand’s description of the manner of
shooting would materially strengthen a defense argument that her testimony
should be disbelieved in its entirety. See State v. Young, 448 N.J. Super. 206,
228 (App. Div. 2017) (finding a "false in one, false in all" inference was
justified, in light of "conflicting evidence" about the defendant-witness's
statements, and indicia they were not "'[i]nadvertent misstatements or
immaterial falsehoods'" (quoting State v. D'Ippolito, 22 N.J. 318, 324 (1956)).
Lastly, in considering the significance of this new and essentially
unrefuted forensic evidence, we also bear in mind that the jury acquitted both
defendants of the unlawful possession of a weapon charges. Although
inconsistent verdicts are generally tolerable, the jury’s not-guilty findings on
those particular weapons counts provide yet another reason to believe the newly
developed scientific proof could have tipped the balance in favor of the defense
on the murder counts.
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B. Proof of Washington's Identity As the 9-1-1 Caller
We find it appropriate to consider the 9-1-1 audio evidence, which only
emerged before the trial court's most recent evidentiary proceedings. The
recording had not been considered on direct appeal or in any of defendants'
previous collateral proceedings.
The audio evidence was not discovered by trial counsel. Washington
consistently maintained that he discovered the bodies and called 9-1-1, which
he told his attorney Kahn prior to trial. Kahn, however, did not request a copy
of the 9-1-1 tape and contends he was unaware of its existence.
The trial court rejected Washington's claim for relief because it believed
that the decision not to play the tape for the jury was "likely . . . part of a strategic
trial decision." Strategic decisions made after less than complete investigations,
however, are not entitled to deference. State v. Savage, 120 N.J. 594, 617-18
(1990). Without knowing about and obtaining the tape to ascertain if
Washington made the 9-1-1 call, Kahn was in no position to make a strategic
decision whether to present the tape to the jury as part of an alibi defense on
Washington's behalf.
We are persuaded that the 9-1-1 audio proof provides support for relief
under Rule 3:20. The evidence clearly satisfies the first and third prongs of
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Carter. Carter, 85 N.J. at 314. Moreover, we do not construe the Supreme
Court's application of the second prong of the Carter test for newly discovered
evidence to be so rigid so as to preclude relief under Rule 3:20 under the
circumstances presented here. As the Court noted in Nash, "'[w]e would not
require a person who is probably innocent to languish in prison because the
exculpatory evidence was discoverable and overlooked by a less than reasonably
diligent attorney.'" Nash, 212 N.J. at 550 (alteration in original) (quoting Ways,
180 N.J. at 192). Hence, whether or not trial counsel were ineffective by not
obtaining and presenting the 9-1-1 audio, that evidence, along with the forensic
proofs, must be fairly considered in determining whether a new trial is
warranted.21
It is clear from the audio recording that the 9-1-1 caller was
distraught. That lends support to the notion that the caller was not the person
who just shot Turner and Wilson. Despite seven witnesses who testified at the
PCR hearing that the voice on the 9-1-1 tape was Washington's, the court found
that "there was no credible evidence . . . Washington made the [9-1-1] call from
21
We further note that a motion for a new trial under Rule 3:20 is not governed
by the procedural limitations expressed in Rule 3:22. Rule 3:20-1 provides an
independent avenue for relief where "it clearly and convincingly appears that
there was a manifest denial of justice under the law."
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a payphone." Although the court found a few of the witnesses who identified
Washington's voice were credible, including Washington's mother and sister, it
rejected their identifications because those persons were biased and "motivated
to assist" him.
The Supreme Court has cautioned about negative credibility findings that
are based "solely on account of [a] familial relationship . . . ." Ways, 180 N.J.
at 196. It is not at all apparent that anyone except Washington's friends and
family could reliably identify his voice. Whether Washington actually is the
person who called 9-1-1 is a question for a new jury to make after it
"determine[s] each witness's knowledge, bias, consistency, and overall
credibility." Nash, 212 N.J. at 553.
The trial court also found that if "Washington placed the call from the
payphone, it would have put [him] at the scene of the crime." That is true, but
it deserves less weight than the court placed on it. Washington has always
asserted that he discovered the bodies and therefore admits he was at the scene,
but just not at the time of the murders. He never tried to place himself away
from the crime scene. If, in fact, Washington made the initial 9-1-1 call, that
evidence had the potential to sway the jury's verdict, particularly after taking
into account the weakness of the State's case.
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We recognize that even if the jury believed Washington called 9-1-1, the
jury could still determine that he shot Turner and Wilson. But "an 'outcome
determinative standard' impose[s] too heavy a burden" on a defendant. State v.
L.A., 433 N.J. Super. 1, 14 (App. Div. 2013) (quoting Strickland, 466 U.S. 668,
694 (1984)). A defendant need not show that it is "more likely than not" that
she or he is innocent. Instead, a defendant must show a reasonable probability
that is sufficient to undermine confidence in the outcome of the trial. Ibid.Considering the 9-1-1 evidence in conjunction with the forensic proof that
undercuts the account of the sole alleged eyewitness, defendants have
established such a reasonable probability here.
C. The Other Non-Forensic Proofs
Aside from this heavily corroborated evidence identifying Washington as
the 9-1-1 caller, we rely on none of the other non-forensic proofs defendants
have presented. As to those particular proofs, we generally defer to the trial
court's assessment that they either lack sufficient probative value to warrant a
new trial, or could reasonably have been developed and presented to the court
sooner, or both.
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IV.
(Impact of the Additional Proofs)
Viewing the totality of the evidence, the "new" evidence – particularly the
forensic evidence, in context with the State's weak trial proofs that hinged so
vitally upon Rand's account – was material and probably would have changed
the jury's verdict.
Rand's identification of defendants as the shooters was the singular "focal
issue of the trial and must be considered material." Behn, 375 N.J. Super. at 431(quoting Henries, 306 N.J. Super. at 531). As we have elaborated, the forensic
evidence that Wilson was lying on the ground when she was shot, if it had been
available at the time of defendants' trial, would likely have been admissible and
would have undercut Rand's account of events. The same is true for Haag's and
Dr. Baden's testimony that only one gun was used in the murders. Because
Rand was the only witness linking the defendants to the murders, and given the
extensive weakness of her testimony, the new evidence would probably have
changed the outcome of the trial.
The trial court relied analytically on the fact that the "jury found [Rand's]
testimony to be credible." Case law, however, has disapproved of such undue
reliance. See L.A., 433 N.J. Super. at 18 ("The court erred by relying on the
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jury's apparent finding that [the witness] was credible, because it voted to
convict."). Applying the proper legal test, we are persuaded that a new trial is
warranted.
At such a trial the strong forensic proofs, and the 9-1-1 call evidence, will
be presumptively admissible, subject to the State’s right of timely objection. 22
To be sure, courts that set aside verdicts "do not decide where the truth
ultimately lies, because that function falls within the exclusive purview of the
jury after reviewing all the evidence." Ways, 180 N.J. at 197. In this case, that
will be the newly discovered forensic evidence and the proofs concerning
Washington's voice on the 9-1-1 recording. A jury is the proper entity to
"determine each witness's knowledge, bias, consistency, and overall credibility,"
and render a verdict. Nash, 212 N.J. at 553. Given the time that has passed
since the trial, there will be "difficulties" associated with a retrial at this late
date, "[b]ut the passage of time is an insufficient reason not to correct an
injustice." Ways, 180 N.J. at 197. Because there is "a probability—not a
22
Hence, we do not reach the more expansive question of whether inadmissible
evidence could justify granting defendants a new trial. For example, we do not
rely in our decision upon the arguably inadmissible social science experiment
performed by the defense, which tested what a group of non-jurors thought about
what initials for a shooter were uttered by Rand on the audio of her police
interview.
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certainty—that a new jury would find [defendants] not guilty," they are entitled
to a new trial. Ibid.Based on the newly discovered evidence, we therefore reverse the trial
court's denial of defendants' motions for a new trial, and remand to enable the
State, if it so chooses, to retry the case.
V.
(Ineffective Counsel Claims)
As a separate theory for relief, defendants argue that the court erred by
holding that their ineffective assistance of counsel claims were time-barred. We
briefly discuss this procedural issue for sake of completeness.
The trial court found defendants' ineffective assistance of counsel claims
"ha[d] been raised before in each of [their] prior [PCR] petitions," It then
determined that their claims were time-barred under Rule 3:22-12(a)(2).
As relevant here, under Rule 3:22-4(b), a second or subsequent PCR
petition "shall be dismissed" unless:
(1) it is timely under Rule 3:22-12(a)(2); and
(2) it alleges on its face . . .
....
(B) that the factual predicate for the relief sought could
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not have been discovered earlier through the exercise
of reasonable diligence, and the facts underlying the
ground for relief, if proven and viewed in light of the
evidence as a whole, would raise a reasonable
probability that the relief sought would be granted . . . .
[R. 3:22-4(b).]
Rule 3:22-12(a)(2), in pertinent part, provides that notwithstanding any
other provision of the Rule, no second or subsequent PCR petition shall be filed
more than one year after the latest of:
(B) the date on which the factual predicate for the relief
sought was discovered, if that factual predicate could
not have been discovered earlier through the exercise
of reasonable diligence . . . .
It further provides that "[t]hese time limitations shall not be relaxed, except as
provided herein." R. 3:22-12(b).
Defendants argue their ineffective assistance of counsel allegations were
timely because they filed their PCR petitions within one year of discovering the
factual predicates for their claims. The exoneree amici similarly argue that Rule
3:22-12(a)(2) allows a defendant to bring an ineffective assistance of counsel
claim within a year of the discovery of the factual predicate of his or her claim
no matter how many years have passed since the defendant's trial. They further
argue the "reasonable diligence" requirement of Rule 3:22-12(a)(2) must be
viewed from the perspective of the defendant, not his or her counsel.
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Baker identifies the following factual predicates that he "discovered" in
the year before he filed his PCR petition: (1) a video recording of KYW-3
Philadelphia news coverage from the night of the murders; (2) a certification
from Gumminger stating that he did not review his file prior to testifying in
Baker's 1999 PCR proceeding; (3) Miron's file from when he was Baker's PCR
counsel; and (4) Haag's and Dr. Baden's forensic reports.
It is not clear what the connection is, if any, between Baker's receipt of
Miron's file and his ineffectiveness claim. The information that Baker gleaned
from Miron's file that served as a factual predicate to his PCR petition is
unstated. Even if the evidence in Miron's file showed Baker's trial counsel was
ineffective, then it necessarily also showed that the same evidence could have
been discovered earlier than 2012 through the exercise of reasonable dilige nce.
All of these identified factual predicates were discoverable by Baker
earlier through the exercise of reasonable diligence. Baker knew, or should have
known, that Gumminger did not review his file and testified solely based on his
memory in 1999 because Gumminger admitted it during the evidentiary hearing.
The television programs Redden claimed she was watching on the day of the
murders had been in dispute since before defendants' trial, so they were aware
that the television programming was a key issue. Indeed, in Baker's prior PCR
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petition he argued that his trial counsel was ineffective for failing to call Redden
as an alibi witness and have her testify about watching news coverage of the
murders, but the court rejected that argument. We do not disturb that finding.
Washington, meanwhile, argues that his petition was timely because he
filed it within one year of the State producing discovery to Baker, including the
audio recordings of the 9-1-1 call he allegedly made. The State counters that
the 9-1-1 evidence could have been discovered earlier through the exercise of
reasonable diligence. R. 3:22-12(a)(2)(B). The State's position comports with
our ruling in State v. Jackson, 454 N.J. Super. 284, 292-94 (App. Div. 2018).
Both defendants argue that the failure to relax the time bar of Rule 3:22-
12(a)(2) to permit PCR relief in the exceptional context of this case would result
in a "fundamental injustice." In Jackson, 454 N.J. Super. at 292-94, this court
held that after the PCR rule amendments in 2009 and 2010 the fundamental
injustice exception did not apply to second or subsequent PCR petitions and that
the time limits in Rule 3:22-12(a)(2) could not be relaxed.
We need not address here whether, as defendants and their amici advocate,
the law of our State should enable our courts, in limited and compelling
circumstances, to disregard the time bar as a matter of fundamental fairness or
jurisprudential policy, or whether the PCR rules should be prospectively
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amended in some fashion. We leave such an assessment to the Supreme Court.
Instead, we assume for sake of discussion the time bar under Rule 3:22-
12(a)(2) pertains and therefore do not address the substantive issues of
ineffectiveness concerning the 9-1-1 audio evidence. In any event, the denial of
defendants' PCR ineffectiveness claims under Rule 3:22 does not preclude relief
to them under the separate pathway of Rule 3:20 for newly discovered evidence,
including the forensic proof and the 9-1-1 identification evidence. See R. 3:20-
2 ("A motion for a new trial based on the ground of newly-discovered evidence
may be made at any time, but if an appeal is pending the court may grant the
motion only on remand of the case."). We therefore rest our analysis and the
grant of a new trial upon Rule 3:20, not Rule 3:22.
VI.
(Brady v. Maryland Issues)
Briefly, we reject defendants' claim the State suppressed material
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). We adopt the
trial court's conclusion that no Brady violations occurred. The court found no
evidence that Glemser coached Rand, and further found that she consistently
stated that "K.B." was one of the shooters. If Rand said "J.D." one time during
her police interview, it seems to have been a mistake, perhaps because she was
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nervous.
The trial court further rejected defendants' claim that errors in the State's
transcription of Trusty’s police interview obscured the fact that Rand did not tell
Trusty that she witnessed the murders. It similarly rejected defendants'
arguments that purported errors in the transcript of Langston’s police interview
undermined Washington's alibi. These particular findings all have ample
support and we adopt them.
VII.
(Remaining Points)
All remaining points raised on appeal either lack sufficient merit to
warrant discussion, R. 2:11-3(e)(2), or present novel jurisprudential or policy
issues that are more appropriate for the Supreme Court or the Attorney
General,23 or both, to consider.
In reaching our determination today, we are very mindful of the passage
of time and the serious proof difficulties the State faces if it chooses to proceed
with a new trial. That is an unfortunate practical reality. But it cannot overcome
23
In April 2019 the Attorney General's created a Statewide Conviction Review
Unit and Statewide Cold Case Network, although the Attorney General has not
indicated that these two cases are part of that review initiative.
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the compelling reasons to grant defendants the relief they deserve.
We also recognize the well-respected judge who presided over the trial
and the lengthy PCR proceedings lived with and labored over this case for over
two decades. His insights are surely important. In fact, we have upheld in this
opinion many of the judge's rulings. We appreciate the judge's faithful service
and his long-standing feel for this case. 24 Nevertheless, our independent review
of the record, in light of the newly discovered evidence, compels us to conclude
it would be unjust to allow this verdict to stand.
VIII.
(Conclusion)
Defendants' convictions are consequently vacated for a new jury trial. We
stay our decision, sua sponte, and any release of defendants from custody, for a
period of sixty days to enable the State to seek relief from the Supreme Court if
it so chooses. If such a filing with the Supreme Court occurs during the sixty-
day interval, the stay automatically shall remain in effect unless and until the
Supreme Court otherwise directs.
24
The judge recently passed away. Nothing in this opinion or its outcome
detracts from the judge's many years of dedicated and illustrious service to the
public and the legal profession.
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Vacated and remanded for retrial.
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