Scott v. Bartkowski

CLARENCE E. SCOTT, Petitioner, v. GREG BARTKOWSKI, et al., Respondents.

Civ. No. 11-3365 (SRC)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

DATED: August 27, 2013

NOT FOR PUBLICATION

OPINION

STANLEY R. CHESLER, U.S.D.J.

I. INTRODUCTION

Petitioner is a state prisoner and is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of multiple counts including murder, armed robbery, attempted murder, resisting arrest and weapons charges, amongst others. He is currently serving a sentence of 115 years with sixty-nine years of parole ineligibility. Petitioner raises fifteen claims in his habeas petition, challenging evidentiary rulings by the trial court, the jury instructions, prosecutorial misconduct and other trial-focused claims. In addition, Petitioner claims that both his trial and appellate counsel were ineffective. For the following reasons, the habeas petition will be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND¹

The murder occurred in the Christopher Columbus Housing Projects (CCP) in Paterson, on January 27, 1998, at approximately 11:30 p.m. Joseph Robinson testified that he and Alphonso Lee were leaving Building One at CCP when they encountered an armed man just outside the door. Robinson described the man as wearing a black jacket made of leather or goose down, a dark hat, and a dark-colored scarf wrapped around his head. Robinson could not see the man's face because it was covered by the scarf. He recalled that the gun, which he saw at close quarters, looked like a .9 millimeter pistol. Because Robinson assumed that the gunmen intended to rob them, he handed over his money, knelt down on the floor, and looked down rather than up at the gunman. From that vantage point, he saw the gunman's boots, which he described as black with yellow trim. Nine days after the robbery, Robinson gave a statement to police and identified a photograph of the boots that defendant was wearing when arrested as being the boots the gunman was wearing.

At trial Robinson testified that the gunman remarked that he knew Robinson and handed him back his money. Robinson also testified that he was acquainted with the defendant, although the gunman had a raspy voice that did not sound like defendant's voice. As the gunman walked away, Robinson observed that he walked with a limp.

Robinson, and several other witnesses, testified that as the gunman walked away from Building One, a group of people standing near Building Two, which was across the courtyard, began shouting taunts at him, calling him a "fag" and threatening that "we'll F you up" if he approached them. Shortly thereafter, Robinson heard a shot and saw the gunman walking away from the Projects toward nearby Matlock Street.

Raysun Belton, who was standing near Building Two with Ronald Wimbush, testified that his friend, "Jayvon," had walked over to Building One and returned within seconds exclaiming that there was a "stickup" going on and that the gunman had two people down on the floor. After the gunman emerged from Building One, Belton heard someone behind him shout to the gunman "don't come down here . . . we'll fuck you up." Upon seeing the gunman reach down, Belton began to run away, believing that he was reaching for a gun. Belton then heard a gunshot, and saw Ronald Wimbush, staggering and holding his neck. Belton confirmed that the gunman was dressed in dark clothing and walked with a limp. Belton ran to find a policeman to report the shooting. He reported to the officer that the gunman was wearing black clothing and had a "funny walk" as though something was wrong with his foot or leg. At trial, Belton demonstrated the gunman's distinctive walk to the jury. It was described for the record as "[s]o you are indicating your feet spread apart and your shoulders bobbing back and forth, going up and down."

Kelwanna Curry testified that she was standing in front of Building Two when she saw a person with a gun come towards her. From fifteen feet way [sic], she observed that the gunman was wearing a dark hat, a black scarf wrapped around his face and a black jacket. She testified that Ronald Wimbush, also known as "Issa," was standing near her. She saw the gunman come up to Wimbush, who said "I didn't say anything." She saw the gunman grab Wimbush. Then she turned and ran into Building Two. As she was running away, she heard a shot.

Officer Frank Ferrigno testified that he was on patrol on the night of the shooting when he received a broadcast from headquarters concerning a shooting at CCP and a description of a suspect who was wearing blue jeans, a black jacket, and a red and black scarf, and was limping. The suspect was reported as heading toward School 28. On Jefferson Street, he spotted a black man wearing clothing that fit the broadcast description. Ferrigno described the man as wearing a black jacket but having it partially off his right shoulder as though he were trying to take it off. When Ferrigno ordered the man to stop, he began running away. At that point, Ferrigno noticed that the man had a limp. Ferrigno and his partner, Officer Salvatore Giuliana, gave chase, and were able to apprehend the man as he was attempting to climb over a fence at the end of an alley.

The individual, later identified as Clarence Scott, violently resisted arrest. Ferrigno described him as fighting, swinging, punching, kicking and biting in his attempt to get away. Ferrigno testified that at one point during the struggle to handcuff him, Scott reached into the pocket of the black leather jacket. Believing he might be reaching for a gun, Ferrigno also placed his own hand into the jacket pocket, where he felt the gun. He testified that Giuliana was at the suspect's feet, and that during the struggle, the suspect was pointing the gun at Giuliana, through the jacket pocket. Ferrigno was able to get the gun away from the suspect, and he and his partner handcuffed him. He testified that Scott was upset and aggressive, cursing the officers and stating "F, you cops, you should have killed me, should have shot me." When brought to the police station, defendant further threatened "to kill all you officers, you mother fuckers, I'll get you." Ferrigno's testimony was corroborated by Detective Vogt, who testified that he was on duty at the police station when Scott was brought in and that Scott threatened to "kill all us fucking cops."

When apprehended in the alley near Jefferson Street, defendant was wearing a black leather jacket and a dark wool scarf. During a search of the area, conducted later that night, police found a black wool hat on Jefferson Street.

Derrick Wright, a nurse at the Passaic County Jail where defendant was held pending trial, testified that he has seen defendant walk many times and, while he does not walk with a limp, he walks with a "swagger." Like Belton, Wright demonstrated the walk to the jury. Counsel and the court described the walk for the record as follows: "[I]t appeared that Mr. Wright walks in a way in which he appeared to . . . at the end of each . . . step dipped his right shoulder. . . . The upper torso shifted from side to side and one leg drops." Wright also testified that he observed defendant taking a shower in order to document any injuries he might have when he was brought into the jail. He saw no bruises or other injuries, and defendant did not complain of any injuries.

Officer Sean Reed testified that he responded to a report of a shooting. At the murder scene, in front of Building Two, he found a shell casing from a bullet. The State presented expert ballistics testimony confirming that the shell had been fired from the gun found in defendant's black leather jacket. The state also presented testimony that when defendant was apprehended, the gun, a .9 millimeter pistol, had a bullet jammed in the chamber. The magazine, which had a capacity of eight bullets, contained two ordinary bullets and two Hollowpoint bullets.

The State also presented testimony from Raymond Simmons concerning an alleged confession that defendant made to him while they were both housed in the Passaic County Jail. According to Simmons, defendant told him that he was "out to make some money . . . at the CCP projects and he went to stick this guy up and . . . he shot him." Simmons testified that defendant told him he shot "Issa-Char" (Wimbush), because "he refused to give him his money or whatever he had to give him and that's when he shot him." He also testified that defendant told him that he did not intend to let the police arrest him "but the gun was jammed."

At the time of the alleged confession, Simmons was in jail on burglary charges. After he pled guilty but before he was sentenced, he wrote a letter to the Prosecutor's Office offering to provide information about the murder. But at defendant's trial Simmons denied that he was motivated by any desire to obtain a lighter sentence. According to Simmons, Wimbush was a friend of his and he was offering information to the Prosecutor from purelyaltruistic motives, to help Wimbush's family. In his summation, even the State's attorney conceded that this testimony was not credible. Further, Simmons admitted that he and another trial witness, Wilfredo Izquierdo, were co-defendants in the burglary case, and that he and Izquierdo had been co-defendants several times in the past on charges of burglary, stolen cars and robbery.

The defense called Izquierdo as a witness to rebut Simmons' testimony. Izquierdo testified that he, Simmons, and defendant, were all incarcerated at the Passaic County Jail at the same time. But he testified that the three of them were assigned to different sections of a large dormitory, and, to his knowledge, defendant and Simmons had no relationship with each other. He testified, however, that Simmons told him that he was going to offer the Prosecutor information about defendant in order to try to "get his time back," that is, to get a reduction

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