State v. Baker

STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN BAKER and SEAN WASHINGTON, Defendants-Appellants.

DOCKET NO. A-0716-17T3

DOCKET NO. A-0719-17T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued October 7, 2019

December 26, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

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.

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,"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

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 wasrepresented 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 Wade¹ 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.

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...