STATE OF NEW JERSEY v. DANE R. ELLIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2111-06T42111-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANE R. ELLIS,

Defendant-Appellant.

________________________________________________________

 

Submitted October 29, 2007 - Decided

Before Judges Stern and A.A. Rodr guez.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 99-07-0783.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Alison Perrone, Designated

Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Nancy A. Hulett,

Assistant Prosecutor, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR). He was convicted of murder (into which a weapons offense was merged) and hindering apprehension, and sentenced to consecutive sentences aggregating life plus five years in the custody of the Commissioner of the Department of Corrections, with thirty-two and one-half years to be served before parole eligibility.

The defendant ultimately confessed in an oral statement to being at the scene of the shooting, putting the body of the victim, Sakeera Stokes, into the trunk of her car and driving it to where the car was found two months later. He acknowledged that he was with her when the gun went off and the victim was shot in the head. He asserted it was an accident when the victim, who had held the gun for defendant for some time while he was in Virginia, was "fooling around with the weapon" before giving it back to him. Another girlfriend, Melinda Betts, with whom defendant spent the night after leaving the victim's body in her car trunk, testified that defendant confessed to her in the motel room, but said he "accidentally shot Sakeera in the head" when she "grabbed" the gun. After giving his oral confession, defendant took Investigator Angelini to the location of the shooting and to the lot where he left the car in which the victim's body was found.

At trial, defendant asserted that the report of his unrecorded oral statement was not credible, the victim was seen alive after being with defendant, and the motel confession was reported by a "jealous" and jilted former girlfriend. Defense counsel argued in summation that the shooting was an "accident" even if the State's proofs were believable.

We affirmed the convictions on defendant's direct appeal against claims the confession was inadmissible and the conviction was both against the weight of the evidence and, in any event, did not support a murder conviction. PCR counsel argued that trial counsel did not hire an investigator and did not conduct an investigation, did not encourage defendant to testify at the "Miranda hearing" or at trial, and failed to challenge the arrest as "illegal" based on errors in the complaint and lack of probable cause in the affidavit or otherwise. According to defendant, his alleged statement is inadmissible as a "fruit of the poisonous tree." PCR counsel also asserted that because defendant's trial attorney failed to file a motion to suppress, to present unspecified "exculpatory evidence" and to object to testimony, defendant was denied due process. He also asked for "an evidentiary hearing to get some answers from counsel."

Defendant is correct that State v. Preciose, 129 N.J. 451 (1992), and State v. Sparano, 249 N.J. Super. 411 (App. Div. 1991), generally leave for PCR the need to develop a record as to the effective assistance of counsel. But they, and State v. Cummings, 321 N.J. Super. 154 (App. Div. 1999), make clear there has to be a prima facie showing under the two prongs of Strickland v. Washington, 466 U.S. 668 (1984), and State v. Fritz, 105 N.J. 42 (1987). See State v. Preciose, supra, 129 N.J. at 463. This, PCR counsel did not do. His statement before the PCR court that his investigators were not able to do "everything [he] asked" or get certifications does not suffice, and there was no specific indication of what would have been presented at a new trial which would have made a difference in the result.

The admissibility of the unrecorded statement was raised on the direct appeal, albeit on other grounds than in the PCR. Thus, there is a procedural bar because this issue was not, but could have been, previously raised. See R. 3:22-4, -5. On direct appeal defendant asserted that he was questioned despite invoking his rights and that any waiver was involuntary. He asserted in the PCR that he should have taken the stand to challenge the statement and that the statement followed an illegal arrest, which trial counsel did not challenge.

However, any technical failure to sign the arrest warrant on the line "name and title of person administering oath" to the complainant is not dispositive, and would not require suppression of the statement. The arrest warrant was signed on the line "signature of judicial officer" by a Superior Court judge, and there is no dispute that the judge signed it after a prosecutor presented Investigator Angelini's testimony about what the investigation had revealed, including Bett's report, incident to the simultaneously issued search warrant. The witness was sworn by the judge.

 
We affirm the denial of PCR substantially for the reasons stated by Judge Deborah J. Venezia in her oral opinion of September 29, 2006, as supplemented herein.

Defense counsel also challenged the admissibility of defendant's statement in pretrial proceedings.

Defendant asserts he was "threatened" and "coerced" and gave no statement, and that Betts' trial testimony was inconsistent even with her third pretrial statement which incriminated defendant.

The only argument by counsel before us on the issue is that a hearing was needed as to why defendant did not testify and why counsel did not "challenge the legality of defendant's arrest" because it related "to the admissibility of the State's main evidence against defendant . . . ." In a supplementary pro se brief, defendant further argues he was entitled to a hearing "because [trial] counsel failed to suppress the statement allegedly given by petitioner on the grounds that it was the fruit of an illegal seizure of petitioner's person

. . . ."

(continued)

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A-2111-06T4

December 28, 2007