STATE OF NEW JERSEY v. DANE ELLIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANE ELLIS,

Defendant-Appellant.

___________________________________

September 4, 2014

Submitted August 6, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-07-0783.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Dane Ellis appeals the Law Division's December 12, 2012 order dismissing his second petition for post-conviction relief (PCR). We affirm.

We discern the following facts and procedural history from the record on appeal. Ellis confessed in an oral statement to having been at the scene of a shooting in Franklin Township in March 1999, putting the body of the victim, Sakeera Stokes, into the trunk of her car, and driving it to the location where the car was found two months later. He acknowledged that he was with her when the gun went off and that the victim was shot in the head. Ellis asserted it was an accident that occurred when Stokes, who had held the gun for him for some time while he was in Virginia, was "fooling around with the weapon" before giving it back to him. After making his oral confession, Ellis took an investigator to the location of the shooting and to the lot where he left the car in which Stokes's body was found.

Melinda Betts, with whom Ellis spent the night after leaving Stokes's body in her car trunk, testified that Ellis confessed to her. According to Betts, Ellis told her he "accidentally shot Sakeera in the head" when she "grabbed" the gun.

Ellis moved to suppress his statement. The motion was denied. At trial, Ellis asserted that the report of his unrecorded oral statement was not credible, the victim was seen alive after being with him, 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.

A jury convicted Ellis of murder and hindering apprehension. He was sentenced to consecutive terms of incarceration, aggregating to life plus five years, with thirty-two and one-half years to be served before parole eligibility. Ellis appealed, and we affirmed the convictions, rejecting Ellis's arguments that the confession was inadmissible and that the conviction was both against the weight of the evidence and, in any event, did not support a murder conviction. State v. Ellis, A-4961-00 (App. Div. Oct. 17, 2002).

Ellis filed a petition for PCR in April 2007, which was supplemented by assigned counsel. Ellis argued that trial counsel did not hire an investigator and failed to conduct an investigation, did not encourage him to testify at the Miranda1 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. According to Ellis, his alleged statement was inadmissible as a "fruit of the poisonous tree." Ellis also asserted that, because his trial attorney failed to file an additional motion to suppress, to present unspecified "exculpatory evidence," and to object to testimony, he was denied due process. Ellis also asked for "an evidentiary hearing to get some answers from counsel." The petition was dismissed and we affirmed. State v. Ellis, A-2111-06 (App. Div. Dec. 2007), certif. denied, 195 N.J. 521 (2008).

Following an unsuccessful petition for a writ of habeas corpus, Ellis v. Ricci, Civ. No. 09-5124 (D.N.J. Apr. 28, 2010), Ellis filed his second PCR petition, in which he moved for a new trial based on newly discovered evidence and sought discovery. He alleged that he had reason to believe that the bullet that killed Stokes was still lodged in the basement wall of his parents' home. He argues that the discovery of the bullet in that location would support his assertion that the shooting was an accident and that he had not lured her to a remote location to kill her. He sought discovery on the issue, arguing that discovery of the bullet would warrant a new trial.

The second PCR judge heard oral argument on October 19, 2012. The judge issued a written opinion on December 12, 2012. He denied relief, finding that the basis for the application was speculative and that the application itself was untimely. Ellis appealed.

Ellis's appointed counsel raises the following issue on appeal:

POINT I: THE ORDER DENYING DEFENDANT'S POST-CONVICTION RELIEF MOTION FOR AN ORDER PERMITTING DISCOVERY SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED THE RIGHT TO SUCH A DISCOVERY OPPORTUNITY TO A PREPONDERANCE OF THE CREDITABLE EVIDENCE.

In a pro se supplemental brief, Ellis raised the following additional issue:

POINT I: IT IS A FUNDAMENTAL[]INJUSTICE TO DENY DEFENDANT AN OPPORTUNITY TO PROVE A MATERIAL NEWLY DISCOVERED EVIDENCE CLAIM WITHOUT REVIEWING THE EVIDENCE TO ENSURE THAT IT IS NOT THE PRODUCT OF FABRICATION.

Having reviewed the arguments on appeal in light of the record and applicable law, we affirm substantially for the reasons outlined by Judge Michael A. Toto in his comprehensive written opinion.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).