STATE OF NEW JERSEY v. FLOYD ELLERBEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2799-03T42799-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FLOYD ELLERBEE,

Defendant-Appellant.

__________________________________

 

Submitted September 14, 2005 - Decided

Before Judges Wefing and Wecker.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

92-05-0573-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (David A. Gies,

Designated Counsel, of counsel and on

brief).

James F. Avigliano, Passaic County

Prosecutor, attorney for respondent

(Jane E. Hendry, Senior Assistant

Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant appeals from an order denying his motion for post-conviction relief (PCR). A jury found defendant, and co-defendant Barrington Redway, guilty of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a(1) or (2) (count two); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a and N.J.S.A. 2C:2-6 (count three); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:2-6 (count four). The jury acquitted defendant of murder (count one) in the November 24, 1991 death of Stanley Brown. On January 26, 1996, defendant was sentenced to an extended term of twenty years with ten years of parole ineligibility on the conspiracy count (count two); a consecutive eight-year sentence with a four-year period of parole ineligibility on the unlawful purpose count (count three); and the permit charge (count four) was merged with counts two and three. Defendant's aggregate sentence was twenty-eight years with a fourteen-year period of parole ineligibility.

The conviction and sentence (the latter of which was challenged as excessive) were affirmed on direct appeal. State v. Ellerbee, Docket No. A-3907-95T4 (December 1, 1998). The Supreme Court denied defendant's petition for certification. State v. Ellerbee, 158 N.J. 71 (1999). Defendant filed a pro se motion for post-conviction relief on November 27, 2000. In that motion, he sought relief on the basis of ineffective assistance of trial counsel in failing (1) to interview and present an alibi witness, defendant's then girlfriend Mary Sellers, whose name, address, and phone number defendant claimed to have given his trial attorney; (2) failing to seek a Wade hearing to challenge the identification evidence; and (3) failing to seek a special jury charge on a witness's out-of-court identification. Defendant also alleged ineffective assistance of appellate counsel in failing to argue these same omissions. In support of his PCR motion, defendant submitted a certification of Mary Sellers, attesting to the fact that defendant picked her up at work at 11:00 p.m. "on the night in question," went home with her and remained there until he left at 6:30 a.m. to drive their daughter's godmother to work. That person was not identified by name in the certification.

In a supplemental pro se brief in support of his motion, defendant argued that his motion was not barred by Rules 3:22-12, 3:22-4, or 3:22-5 and he was entitled to an evidentiary hearing.

Judge Gannon, who was not the trial judge, heard defendant's motion and held an evidentiary hearing to address defendant's arguments. Defense counsel represented at that hearing that Mary Sellers:

resides in Cherau . . . South Carolina and is unable to be here and that's understood that she's unable to be here, she's an elderly woman[] and travel was not possible, so she will not be able to testify at the hearing and that's part of the understanding of this proceeding.

Defendant testified that at the time of the murder, he lived with Mary Sellers, his stepdaughter, and his son, at 469 12th Avenue in Paterson. He went there about 11:30 p.m. on November 23, 1991, and "stayed there the rest of the night." In answer to the question how he came to leave that location, defendant said:

I received a first, after we got there, I had to take her to work, but then I received a phone call from Ms. Lucille DeJesus and she's letting me know that I told her I was gonna take her to work.

That was "6:30, maybe 6:00, somewhere in between, I'm not exactly sure of the time." Defendant answered "yes" to the question, "Is it your testimony that from that time until you received the phone call from Ms. DeJesus that you stayed entirely at 469 12th Avenue?

When asked on direct whether he had "any specific conversation" with his trial attorney about that, defendant answered, "No, I didn't. We didn't get into it that far in detail, of me explaining to him."

Defendant acknowledged the written statement he gave to police a month after the murder of Stanley Brown. In that written, sworn and signed statement, defendant described Mary Sellers as his "girlfriend," gave her address as 469 12th Avenue in Paterson, and also gave her phone number. He said that "most times" he stayed there. He was not asked where he was at the time of the murder; when asked whether he wished to add anything to his statement, defendant answered: "No, just that I didn't do it, and if I can help you I will."

In the statement, defendant also said that the victim was a "runner" who brought drug buyers to him on the street, where he regularly sold drugs. At 8:00 p.m., another individual told defendant that Brown had "tried to beep" defendant. Defendant said the last time he saw Brown was at 12:30 or 1:00 a.m. on November 24, 1991. Brown was selling counterfeit money, and defendant bought eight ten-dollar bills from him. It was then that he gave Brown his car-washing business card. When questioned at the PCR hearing about inconsistencies between his testimony and his prior statement, defendant said he did not read the statement before he signed it, so the police officer "might have typed what he wanted to type."

Defendant called Lucille DeJesus as his witness. Ms. DeJesus testified that she knew that defendant was tried for murder, and she had information to offer; but she never spoke with defendant's trial attorney or the police. She testified that "[o]n the morning of the murder, or the night, the morning after the murder, [she] called him to pick [her] up and take [her] to work." She called him at Mary's house and spoke to him, and subsequently, he did take her to work. Mary lived on 12th Avenue, and "yes," that was "right near where the murder took place." She told this to her sister and brother, but not to defendant, his lawyer, or the police at the time; the police did not call her.

The State called Thomas Kaiser, defendant's trial attorney. He testified:

Q Mr. Kaiser, what's your occupation?

A I'm an attorney.

Q How long?

A 35 years.

Q What does your practice consist of basically?

A Strictly criminal law.

Q Mr. Kaiser, do you know a person, a client by the name of Floyd Ellerbee?

A Yes, I do.

Q Do you see him in the court today?

A Yes, I do.

Q Were you assigned to represent him in a case of State of New Jersey versus Floyd Ellerbee, et al., concerning a homicide?

A Yes, I was.

Q Do you recall that this matter went to trial in in 1995?

A Yes, I do.

Q Do you recall how long the trial lasted?

A With all the hearings that we had, at least three weeks, September of 1995.

Q In the course of either the pre-trial or the trial, did you ever learn of any potential alibi witness that Mr. Ellerbee may [have] had in his defense?

A Never have, never did.

Q If there had been an alibi witness, would you have pursued that?

A I certainly would have.

. . . .

Q In the course of the trial did anyone point out to you a Mary Sellars in the gallery?

A I never met that woman in my life, except this morning.

Q Well this morning Lucille DeJesus showed up, Mary Sellers wasn't here.

A Oh I thought that was Mary Sellars.

Q Mary Sellars didn't show up. But did Mr. Ellerbee ever bring to your attention anybody that may have been helpful in his defense of his of his murder case?

A Never did.

Q And what was the final verdict of the most serious charge of the indictment, murder in the first degree?

A Not guilty.

On cross-examination, Kaiser continued:

Q Mr. Kaiser, you did review Floyd's statement with him, is that correct?

A Yes, I did.

Q Okay, and in reviewing that statement, did Floyd bring to your further attention the name of Mary Sellars?

A I knew of a Mary Sellars. I knew that she was a girlfriend, live-in girlfriend or just a girlfriend of Mr. Ellerbee's. That I did know. If Mary Sellars was going to provide an alibi, for Mr. Ellerbee, I never knew about that.

MR. SZMITKOWSKI: Okay, Judge, may I just approach Mr. Kaiser?

THE COURT: (No verbal response)

BY MR. SZMITKOWSKI:

Q Mr. Kaiser, just for the purposes of the record, showing you D-1 of today's hearing, that is in fact the statement we're referring to.

A Yes, I have a copy of it.

Q All right. And when you say that you didn't feel there was an alibi defense, would the statement be something you would've taken into consideration in determining that?

A Absolutely. Let me tell you the scenario, if I may, regarding the defense of Floyd Ellerbee.

Q Yes, please.

A When I was assigned this case the first person I spoke to was his prior attorney. That would have been Mr. Schadegg. We discussed the entire case. The second person I spoke to was the attorney for the co-defendant, Mr. Ali. That was Margaret Kane (Phonetic). Now, Mr. Ali was acquitted of this homicide also.

I once spoke to Detective Smith, the lead detective on this case. Aside from being a personal friend of mine, I know he was the lead detective.

I spoke to the General, Barrington Redway, believe it or not, he was on bail on this homicide. And I had numerous conferences with him, his attorney, Mr. Fusco, Anthony Fusco of Passaic. Subsequently Mr. George Tosi was the trial attorney. I spoke to Trisha Saunders, (Phonetic) who was a witness who gave a statement, later recanted, but still admitted at trial.

I spoke to Jerome Kline (Phonetic), who supposedly was a witness to this homicide. I spoke to at least ten people regarding this incident. I told Mr. Ellerbee bluntly, if alibi ever came up, I said I can't sell it to the jury. I said our best defense is denial and let me handle the supposed eye witnesses, being Saunders and Kline.

Mr. Ellerbee never disagreed with my trial strategy. In fact, he thanked me personally after the verdict when I went to the holding cell with him.

[Emphasis added.]

The judge denied defendant's motion with this explanation respecting trial counsel's alleged failure to present an alibi defense:

[I]'ve considered the statement that was marked today for identification, in which the defendant, when he was questioned by the police, says that he went home to his girlfriend's house at 469 at 12th Avenue. The girlfriend is not mentioned by name and Mr. Ellerbee, by his own admission, indicates that he didn't discuss her her knowledge or that of Mrs. DeJesus with his prior [attorney], Mr. Schadegg, and Mr. Kaiser testifies today that a determination was made after consultation with Mr. Ellerbee that that type of defense would not be pursued. Obviously Mr. Kaiser felt that having the defendant's girlfriend testify as to an alibi would perhaps dilute the defense, and the defense here was that the defendant didn't do it, there's no there's reasonable doubt, and that that the that the defendant, that the State could prove its case.

The difference here now is a an attempt to second guess Mr. Kaiser's trial strategy by Mr. Ellerbee. I'm satisfied that that trial strategy was communicated to Mr. Ellerbee, that he acquiesced in that trial strategy and was in agreement with Mr. Kaiser, who apparently he had a good relationship with during the course of the trial.

[Emphasis added.]

. . . .

Mr. Kaiser was left in a situation where the defendant had given a statement to the police, the statement is partly inculpatory and confirmatory of elements of the State case State's case with regard to the time sequence, and its in part exculpatory. It's clear to me that Mr. Kaiser, acting with Mr. Ellerbee, embarked upon a strategy to go with the defense predicated upon a statement Mr. Ellerbee had already given. The cat was out of the bag, so to speak, and they were stuck with it and they attempted to transform that into the best possible defense.

The testimony of Ms. DeJesus is completely insignificant. If she had been called as a witness, at best, she testifies that after the homicide has occurred, she calls the residence and places Mr. Ellerbee in the residence, at home, where he could've been, had the had he participated in the homicide.

It does not tend to be a fact to prove or disprove anything anything of consequence in this case. It doesn't prove that he did it, it doesn't prove that he didn't do it.

In any event, her identity is known because in the statement given by Mr. Ellerbee he refers to getting a call around seven o'clock in the morning from his daughter. I think he referred to her as his daughter's godmother, or words to that effect. So it's clearly she's clearly an ascertainable and identifiable person, but I can understand why Mr. Kaiser would not want to call her as a witness because again, it simply embarks upon a strategy that does not necessarily help the defendant. It doesn't do anything. In fact, it puts them in a position close close to the time of the homicide, where it could be confirmatory of the State's evidence rather than exculpatory. It's a trial strategy. It was a decision that was made, and it certainly does not rise to the level of being ineffective assistance of counsel.

[Emphasis added.]

In a written statement of reasons supplementing his oral decision, the judge further addressed the failure of counsel to pursue an alibi witness and an alibi defense, and found defendant's ineffective-assistance argument without merit.

On appeal, defendant presents these arguments:

POINT ONE

THE DEFENDANT'S TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE FAILED TO INTERVIEW THE DEFENDANT'S ALIBI WITNESS.

POINT TWO

TRIAL COUNSEL'S FAILURE TO REQUEST A PRETRIAL HEARING TO DETERMINE THE ADMISSIBILITY OF THE IDENTIFICATION OF THE DEFENDANT BY THE STATE'S WITNESS, WHO WAS UNDER THE INFLUENCE AT THE TIME OF THE SHOOTING AND WHO WAS FORCIBLY SUBDUED BY SEVERAL POLICE OFFICERS BEFORE SHE IDENTIFIED THE DEFENDANT AS THE SHOOTER, DID NOT ALLOW THE ADVERSARIAL TESTING PROCESS TO WORK PROPERLY, CAUSING THE DEFENDANT TO BE PREJUDICED.

POINT THREE

TRIAL COUNSEL'S FAILURE TO REQUEST A SPECIAL CHARGE REGARDING THE OUT OF COURT IDENTIFICATION OF THE DEFENDANT BY THE STATE'S WITNESS CONSTITUTES PLAIN ERROR.

POINT FOUR

THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WHERE 1,380 DAYS PASSED BETWEEN THE DATE OF ARREST AND THE COMMENCEMENT OF TRIAL.

For the first time on appeal, defendant alleges in Point Four that he was denied his right to a speedy trial. We note the passage of time between defendant's indictment and his trial, which is unexplained in the record. But defendant's failure to demand trial in the Law Division, or to raise the argument on his direct appeal, or even in his post-conviction relief motion, as well as his failure to demonstrate prejudice due to the delay, bars our consideration of that argument now. State v. Douglas, 322 N.J. Super. 156, 170 (App. Div. 1999); see also R. 3:22-4; State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971).

We have carefully considered the record and the briefs with respect to defendant's ineffective-assistance-of-counsel arguments. We find insufficient merit in the arguments raised in Points Two and Three to warrant discussion. R. 2:11-3(e)(2). We have thoroughly explored defendant's argument in Point One, with respect to the failure to interview defendant's alleged alibi witness, in light of the record. We are convinced that defendant did not offer his attorney a viable alibi defense, and that the omission of such a defense was appropriate under the circumstances. We affirm substantially for the reasons expressed by Judge Gannon in his oral decision on October 21, 2003, as supplemented by written reasons.

 
Affirmed.

A third co-defendant, Elas Ali, was tried separately and acquitted before defendant's trial.

United States v. Wade, 388 U.S. 218 (1967).

The name is spelled "Sellars" in the hearing transcript. The certification is signed with the spelling "Sellers." We will use the spelling "Sellers," except where we quote from the transcript.

It is difficult to square counsel's "elderly woman" description with other references to Mary Sellers in the record. For one thing, defendant's statement to police on December 23, 1991 identified Mary Sellers as his fiancée, and the judgment of conviction lists defendant's birthdate as December 29, 1962. Finally, Lucille DeJesus testified that she knew defendant "through my goddaughter, Mary Sellars."

Two such cards were found on Brown's body.

Ellerbee signed his name on this statement as "Eleby," which is also the typewritten spelling on the statement.

(continued)

(continued)

14

A-2799-03T4

October 21, 2005