Petition for Writ of Certiorari — Jerome Brooks, Petitioner v. Steven Johnson, Administrator, New Jersey State Prison, et al.
Supreme Court briefApr 24, 2018
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NO. ___________
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2017
JEROME BROOKS,
Petitioner,
v.
ADMINISTRATOR, NEW JERSEY STATE PRISON,
ATTORNEY GENERAL OF NEW JERSEY,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Third Circuit
PETITION FOR WRIT OF CERTIORARI
CRAIG S. LEEDS, ESQ.
Counsel for Petitioner/Counsel of Record
1205 Anderson Avenue, Suite 2
Fort Lee, New Jersey 07024
Tel: (201)886-8200
Fax: (201)886-0801
QUESTIONS PRESENTED
1.
Should Petitioner’s convictions be vacated because the admission of the
statement of Ronald Wimbush, a non-testifying co-conspirator, was a
violation of the Confrontation Clause?
2.
Did Petitioner receive the ineffective assistance of appellate counsel by
failing to challenge the admissibility of the statement of Ronald Wimbush?
i
PARTIES TO THE PROCEEDINGS
The Petitioner is:
Jerome Brooks
The Respondent is:
Administrator, New Jersey State Prison
Attorney General of New Jersey
ii
TABLE OF CONTENTS
Questions Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Parties to the Proceedings .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Opinions Below. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Constitutional and Statutory Provisions Involved. . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Reasons for Granting the Writ.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Petitioner’s convictions must be vacated because the admission of the
statement of Ronald Wimbush, a non-testifying co-conspirator, was a
violation of the Confrontation Clause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Petitioner received the ineffective assistance of appellate counsel because
counsel failed to challenge the admissibility of the statement of Ronald
Wimbush. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Appendix:
United States Court of Appeals for the Third Circuit Order and
Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 1-11
iii
TABLE OF AUTHORITIES
Cases
Beneshunas v. Klem, 137 Fed. Appx. 510 (3d Cir.),
cert. denied, 546 U.S. 1019 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Brecht v. Abrahamson, 507 U.S. 619 (1993). . . . . . . . . . . . . . . . . . . . . 27,28,30,32
Bruton v. United States, 391 U.S. 123 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . 9,23
California v. Green, 399 U.S. 149 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14
Chambers v. Mississippi, 410 U.S. 284 (1973),
93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . 14,15,22
Davis v. Alaska, 415 U.S. 308 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,35
Delaware v. Van Arsdall, 475 U.S. 673 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Eley v. Erickson, 712 F.3d 837 (3d Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Evitts v. Lucey, 469 U.S 387 (1985) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34,35
Grant v. Stickman, 122 Fed. Appx 590 (3d Cir.),
cert. denied, 546 U.S. 846 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Jacobs v. Horn, 395 F.3d 92 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Jones v. Barnes, 463 U.S. 745 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011). . . . . . . . . . . . . 4,14,15,28,30,32
Kotteakos v. United States, 328 U.S. 750 (1946). . . . . . . . . . . . . . . . . . . . . . . 28,30
iv
Lambert v. Blackwell, 387 F.3d 210 (3d Cir. 2004),
cert. denied, 544 U.S. 1063 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Mason v. Scully, 16 F.3d 38 (2d Cir. 1994). . . . . . . . . . . . . . . . . . . . 23,24,25,26,27
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . . . 2,16
Miller-El v. Cockrell, 537 U.S. 322 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Miller-El v. Dretke, 545 U.S. 231 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
O’Neal v. McAninch, 513 U.S. 432 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
People v. Cruz, 100 A.D.2d 882, 474 N.Y.S.2d 142
(N.Y. App. Div. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
People v. Felder, 108 A.D.2d 869, 485 N.Y.S.2d 576
(N.Y. App. Div. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Pointer v. Texas, 380 U.S. 400 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Richardson v. Marsh, 481 U.S. 200 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Roundtree v. Balicki, 640 F.3d 530 (3d Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . 6,27
Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . 4,15,23
Showers v. Beard, 635 F.3d 625 (3d Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Slack v. McDaniel, 529 U.S. 473 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Smith v. Robbins, 528, U.S. 259 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
State v.Alston, 312 N.J.Super. 102, 711 A.2d 363
(N.J. Super. App. Div. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
v
State v. Baker, 228 N.J. Super. 135, 549 A.2d 62
(N.J. Super. App. Div. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State v. Bankston, 63 N.J. 263, 307 A.2d 65 (1973).. . . . . . . . . . 8,9,10,11,12,15,27
State v. Branch, 182 N.J. 338, 865 A.2d 673 (2005) . . . . . . . . . . . . . . 9,11,12,13,15
State v. Brooks, 201 N.J. 156, 988 A.2d 1178 (2010). . . . . . . . . . . . . . . . . . . . . . . 3
State v. Brooks, 213 N.J. 46, 59 A.3d 603 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . 3
State v. Frisby, 174 N.J. 583, 811 A.2d 414 (2002). . . . . . . . . . . . . . . . . . . . . . . . . 9
State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . 33
State v. Garron, 177 N.J. 147, 827 A.2d 243 (2003), cert. denied,
540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed.2d 1204 (2004) . . . . . . . . . . . . . 13
State v. Irving, 114 N.J. 427, 555 A.2d 575 (1989). . . . . . . . . . . . . . . . . . . . . . 9,11
State v. Roach, 146 N.J. 208, 680 A.2d 634, cert. denied,
519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed.2d 424 (1996) . . . . . . . . . . . . . 9,10
Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . 30,33,34
United States v. Check, 582 F.2d 668 (2d Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . 26
United States v. Cronic, 466 U.S. 648 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
United States v. Danzey, 594 F.2d 905 (2d Cir.), cert. denied,
441 U.S. 951 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Day, 969 F.2d 39 (3d Cir. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . 34
United States v. Figueroa, 750 F.2d 232 (2d Cir. 1984) . . . . . . . . . . . . . . . . . . . . 24
United States v. Mannino, 212 F.3d 835 (3d Cir. 2000).. . . . . . . . . . . . . . . . . . . . 34
vi
United States v. Meises, 645 F.3d 5 (1st Cir. 2011). . . . . . . . . . . . . . . . . . . . . . 4,15
United States v. Reyes, 18F.3d (2d Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Reynolds, 715 F.2d 99 (3d Cir. 1983).. . . . . . . . . . . . . . . . . . 24,25
Wiggins v. Smith, 539 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,27
Williams v. Taylor, 529 U.S. 362 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rules
N.J.R.E. 801.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
N.J.R.E. 802.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Statutes
28 U.S.C. § 1254(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 2253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 2253(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
28 U.S.C. § 2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,5
28 U.S.C. § 2254(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
28 U.S.C. § 2254(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,5,6
28 U.S.C. § 2254(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
28 U.S.C. § 2254(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7,8
vii
N.J.S.A. 2C:11-3a(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
N.J.S.A. 2C:11-3a(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
N.J.S.A. 2C:11-3a(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Constitutional Provisions
U.S. Const. Amend VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,9,13,15,22,34
N.J. Const., Art. 1, Par. 10.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,13,15,22
Other Authorities
5 John Henry Wigmore, Evidence § 1367. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
viii
OPINIONS BELOW
On January 31, 2018, the United States Court of Appeals for the Third
Circuit affirmed the District Court’s denial of habeas relief. App. 1-11.
STATEMENT OF JURISDICTION
Jerome Brooks seeks review of the January 31, 2018 Order of the United
States Court of Appeals for the Third Circuit. Jurisdiction of this Court to review
the judgment of the Third Circuit is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Amendment 6 of the United States Constitution, which provides:
In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the state and district
where the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in
his favor; and to have the assistance of counsel for his defense.
Section 2254 of Title 28 of the United States Code, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), reads, in
relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim – [¶] (1)
resulted in a decision that was contrary to, or involved an
1
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or [¶] (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
STATEMENT OF THE CASE
Bergen County Indictment No. 05-10-1814 charged appellant, Jerome
Brooks, with murder, a crime of the first degree, contrary to the provisions of
N.J.S.A. 2C:11-3a(1) and (2) (Count One), and two counts of felony murder, a
crime of the first degree, contrary to the provisions of N.J.S.A. 2C:11-3a(3)
(Counts Two and Three).
The Hon. Eugene H. Austin, J.S.C., presided over a pretrial Miranda1
hearing on June 6 and 7, 2006, after which, the motion to suppress was denied.
Judge Austin also presided over the jury trial on October 17, 18, 19, 24, 25, 26,
and 27, 2006. On the latter date, appellant was found guilty on all counts.
On February 9, 2007, the appellant was sentenced on his conviction for
murder on Count One to a term of life imprisonment with a parole ineligibility
period of thirty (30) years. The appellant's convictions for felony murder on
Counts Two and Three were merged into Count One.
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2
On October 22, 2009, in a per curiam decision, the Appellate Division
affirmed the defendant's conviction and sentence. The New Jersey Supreme Court
denied Certification on January 26, 2010. State v. Brooks, 201 N.J. 156, 988 A.2d
1178 (2010).
On or about March 25, 2010, the defendant filed a timely Petition For
Post-Conviction Relief. After presiding over a non-evidentiary hearing on
September 24, 2010, Judge Austin denied said application.
On June 22, 2012, the Appellate Division affirmed that denial, and
thereafter, the New Jersey Supreme Court denied Certification. State v. Brooks,
213 N.J. 46, 59 A.3d 603 (2013).
Appellant then filed a pro se federal habeas petition setting forth eight
separate grounds for relief. By Order dated April 28, 2016, the district court
denied the habeas petition. The district court also ordered that a certificate of
appealability shall not issue.
On or about May 19, 2016, appellant filed an application for a certificate of
appealability with the Court of Appeals for the Third Circuit, which was also
treated as his Notice of Appeal.
Appellant’s request for a certificate of appealability was granted by the
Court of Appeals on January 17, 2017 as to the following issues:
3
The foregoing request for a certificate of appealability is
granted as to Brooks’ claim that appellate counsel
provided ineffective assistance of counsel by failing to
challenge the admissibility of the statement of Ronald
Wimbush, a non-testifying co-conspirator, as a violation
of the Confrontation Clause. Jurists of reason would
debate whether the challenged testimony contained an
implicit accusation of Brooks. See Slack v. McDaniel,
529 U.S. 473, 484 (2000). Brooks has made a
substantial showing, see 28 U.S.C. § 2253(c), that
Detective Bendul’s testimony and the prosecutor’s
closing argument violated the Confrontation Clause as
the testimony and argument may have revealed the
content of Wimbush’s statement. See United States v.
Meises, 645 F.3d 5, 21-22 (1st Cir. 2011); Jones v.
Basinger, 635 F.3d 1030, 1043 (7th Cir. 2011); Ryan v.
Miller, 303 F.3d 231, 248 (2d Cir. 2002)(“if the
substance of the prohibited testimony is evident even
though it was not introduced n the prohibited form, the
testimony is still inadmissible.”). Accordingly, jurists of
reason would debate whether appellate counsel
performed unreasonably in failing to present this claim
on appeal. Smith v. Robbins, 528, U.S. 259, 288 (2000).
Brooks request for a certificate of appealability was denied as to the
remaining claims.
On January 31, 2018, the United States Court of Appeals for the Third
Circuit affirmed the District Court’s denial of habeas relief. App. 1-11.
4
REASONS FOR GRANTING THE WRIT
PETITIONER’S CONVICTIONS MUST BE
VACATED BECAUSE THE ADMISSION OF THE
STATEMENT OF RONALD WIMBUSH, AN
ALLEGED NON-TESTIFYING CO-CONSPIRATOR,
WAS A CLEAR VIOLATION OF THE
CONFRONTATION CLAUSE
The District Court had jurisdiction over this matter pursuant to 28 U.S.C. §
2254 because Brooks’ habeas petition alleged that he was incarcerated in violation
of the United States Constitution; this Court has jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253. Review of the District Court’s opinion is plenary, when as in
this case, the District Court denies a habeas corpus petition based on its review of
the record and does not conduct an evidentiary hearing. Showers v. Beard, 635
F.3d 625, 628 (3d Cir. 2011).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Brooks must satisfy two statutory requirements to prevail on his federal habeas
petition. First, he must establish that “he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Second, since the state appellate court ruled on the merits of his claims, he must
also go further and show that his detention is the result of a state court decision
that was (1) “contrary to, or involved an unreasonable application of, clearly
5
established Federal law, as determined by the Supreme Court of the United
States;” or (2) “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“Contrary to clearly established Federal law” means the state court applied a
rule that contradicted the governing law set forth in U.S. Supreme Court precedent
or that the state court confronted a set of facts that were materially
indistinguishable from U.S. Supreme Court precedent and arrived at a different
result than the Supreme Court. Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013)
(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). The phrase “clearly
established Federal law” “refers to the holdings, as opposed to the dicta” of the
U.S. Supreme Court’s decisions. Williams, 529 U.S. at 412.
Under § 2254(d)(1), “[a] state court decision is an unreasonable application
. . . if the court identifies the correct governing legal rule from the Supreme
Court’s cases but unreasonably applies it to the facts of the particular case.”
Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005). The state court’s application of
clearly established law must be objectively unreasonable before a federal court
may grant the writ. Roundtree v. Balicki, 640 F.3d 530, 537 (3d Cir. 2011).
Under § 2254(d)(2), an application for a writ of habeas corpus should be
granted which resulted in a decision that was based on an unreasonable
6
determination of the facts in light of the evidence presented in the state court
proceeding. See Miller-El v. Dretke, 545 U.S. 231, 265 (2005) (granting habeas
relief where state court's finding of no Batson discrimination was clearly
erroneous, unreasonable and reflected a “dismissive and strained interpretation” of
the evidence); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“[A] decision
adjudicated on the merits in a state court and based on a factual determination will
… be overturned on factual grounds [if it is] objectively unreasonable in light of
the evidence presented in the state-court proceeding.”); Wiggins v. Smith, 539 U.S.
510, 528 (2003) (granting habeas petition, in part under Sections 2254(d)(2),
where state court of appeals’ factual conclusions about what the trial record
revealed were clearly erroneous as to specific facts as well as generally wrong in
its overall conclusion that there was sufficient evidence counsel provided effective
representation).
See also Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004), cert.
denied, 544 U.S. 1063 (2005) (“The fundamental prerequisite to granting the writ
on factual grounds is consideration of the evidence relied upon in the state court
proceeding. Section 2254(d)(2) mandates the federal habeas court to assess
whether the state court's determination was reasonable or unreasonable given that
evidence. If the state court's decision based on such a determination is
7
unreasonable in light of the evidence presented in the state court proceeding,
habeas relief is warranted.”); see also Grant v. Stickman, 122 Fed. Appx 590, 594
(3d Cir.), cert. denied, 546 U.S. 846 (2005); Beneshunas v. Klem, 137 Fed. Appx.
510, 514 (3d Cir.), cert. denied, 546 U.S. 1019 (2005) (We may also grant a writ
under § 2254(d)(2) if the state court decision was based on an objectively
unreasonable factual determination.).
Here, Brooks has not procedurally defaulted his claims, and has exhausted
them in the state court. That is, Brooks certainly argued that he was wrongly
convicted on the basis of hearsay testimony in violation of the Confrontation
Clause of the federal and state constitutions and that appellate counsel was
ineffective for failing to raise that issue on direct appeal.
Specifically, relying on State v. Bankston, 63 N.J. 263 (1973), it was
submitted that the introduction of Ronald Wimbush’s statement, through the
testimony of Detective Bendul, coupled with the Prosecutor’s remarks, in sum,
clearly implied to the jury that the State possessed superior knowledge, outside the
record, that incriminated Mr. Brooks.
In affirming the PCR judge’s denial of post-conviction relief in state court,
the appellate division concluded that “the PCR judge correctly determined that
8
nothing in the detective’s testimony with regard to his interaction with Wimbush
rose to the level of prejudicial error.”
The Appellate Division recognized that:
Under Bankston, “the Confrontation Clause and the
hearsay rule are violated when, at trial, a police officer
conveys, directly or by inference, information from a
non-testifying declarant to incriminate the defendant in
the crime charged.” State v. Branch, 182 N.J. 338, 350
(2005) (citing Bankston, supra, 63 N.J. at 268-69); see
U.S. Const. amend. VI; N.J. Const., art. I, ¶ 10; N.J.R.E.
801, 802. The Bankston rule is triggered “[w]hen the
logical implication to be drawn from [police] testimony
leads the jury to believe that a non-testifying witness has
given the police evidence of the accused’s guilt.”
Bankston, supra, 63 N.J. at 271; see State v. Frisby, 174
N.J. 583, 592-93 (2002); State v. Irving, 114 N.J. 427,
445-46 (1989)
The Appellate Division also considered that:
[t]he Sixth Amendment of the United States Constitution
guarantees the right of an accused in a criminal
prosecution “to be confronted with the witnesses against
him.” U.S. Const. amend. VI. The right of confrontation
includes the right to cross-examine witnesses at trial.
Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702,
1706, 95 L.Ed. 2d 176, 185 (1987). Consequently, the
introduction of an out-of-court statement made by a nontestifying codefendant which directly or by necessary
implication inculpates another defendant has the capacity
to violate that defendant’s Sixth Amendment right of
confrontation. Bruton v. United States, 391 U.S. 123,
125-26, 88 S.Ct. 1620, 1622, 20 L.Ed. 2d 476, 478-89
(1968); State v. Roach, 146 N.J. 208, 224-225, cert.
9
denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424
(1996)
Nonetheless, the Appellate Division found that there was no implication that
the detectives possessed superior knowledge, outside the record, that incriminated
Mr. Brooks:
...we find no error I the testimony elicited from the
detective at trial. No testimony was offered pertaining to
the substance of the statements made by the out-of-court
declarant and no implication was raised, therefore, about
the detectives alleged “superior knowledge” outside of
the record. Further, as noted, even if the detective’s
statements at trial respecting his conversations with
Wimbush violated the Bankston principle, in view of the
defendant’s confession and his testimony at trial, the
error was harmless. R. 2:10-2, Roach, supra, 146 N.J. at
226. Consequently, defendant’s assertion that appellate
counsel was ineffective is without merit.
In so doing, it is respectfully submitted that the state appeals court erred.
Brooks contends that the state court decisions were an unreasonable application of
established federal law and/or based on an unreasonable determination of the
facts; therefore, it is also contended that his writ of of habeas corpus should have
been granted.
As will be demonstrated herein, impermissible hearsay evidence was
allowed in the state's case, over trial counsel’s objection, and moreover, petitioner
was seriously prejudiced by it because the logical implication to be drawn
10
therefrom was that Wimbush, a nontestifying witness, had provided law
enforcement with evidence of the defendant’s involvement. Trial counsel, in
objecting to that improper hearsay testimony, relied upon State v. Bankston, 63
N.J. 263 (1973) which certainly supports this proposition, as does its progeny:
'It is well settled that the hearsay rule is not violated
when a police officer explains the reason he approached
a suspect or went to the scene of the crime by stating that
he did so 'upon information received."'. State v.
Bankston, 63 NJ. 263, 268 (1973). Such testimony is
admissible to show that the officer was not acting in an
arbitrary manner, or to explain his subsequent conduct.
Ibid. ...[However w]hen the logical implication to be
drawn from the testimony leads the jury to believe
that a nontestifying witness has given the police
evidence of the defendant's guilt, the testimony
should be disallowed as hearsay. State v. Irving, supra,
114 N.J. at 444-48, 555 A.2d 575; State v.Bankston,
supra, 63 N.J. at 271, 307 A2d 65; State v. Baker, 228
N.J. Super. 135, 140 549 A.2d 62 (App. Div. 1988) .
[emphasis added]
State v.Alston, 312 N.J.Super. 102, 113 (App. Div. 1998).
More recently, the New Jersey Supreme Court has further clarified the
Bankston rule. State v. Branch 182 N.J. 338 (2005) involved a burglary where the
state's case rested primarily on the victims' identification of the defendant as the
burglar:
Immediately preceding [the detective's] testimony
concerning the photographic identifications...the jury
11
learned that not one identifiable fingerprint lifted from
the victims' home matched defendant's. iThe detective]
then gave his reason for placing defendant's picture in
the photographic array in response to the prosecutor's
questioning:
Q: Now,..based on information received did you
develop a suspect in this case?
A: Yes, I did.
Q: And who was that person?
A: Mr. Alexander Branch.
Q: And did you obtain a photo array containing
Alexander Branch's photograph?
A:Yes, ma'am. ...
Branch at 347.
In Branch, the state argued that the detective followed the rule of Bankston
when he testified that he acted "based on information received" to explain that he
did not proceed with the identification in an arbitrary manner. Id. The court
disagreed:
[Wle know that [the detective] received the ‘information'
making defendant a suspect in the crime before [the
victims] identified defendant's photograph from the
array. We also know that there was no trial testimony or
evidence, other than those identifications, that could
have led [the detective] to focus on defendant as a
suspect. Thus, the jury was left to speculate that the
detective had superior knowledge through hearsay
information implicating defendant in the crime. Because
the nameless person who provided the 'information' to
[the detective] was not called as a witness, the jury never
learned the basis of that person's knowledge regarding
defendant's guilt, whether he was a credible source, or
12
whether he had a peculiar interest in the case. Defendant
never had the opportunity to confront that anonymous
witness and test his credibility in the crucible of
cross-examination.
Both the hearsay rule and the right of confrontation
protect a defendant from the incriminating statements of
a faceless accuser · who remains in the shadows and
avoids the light of court."
Id.
Both the Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the
right to confront "the witnesses against him." U.S. Const. amend. VI; N.J. Const.
art. I, ¶ 10. The right of confrontation is an essential attribute of the right to a fair
trial, requiring that a defendant have a "fair opportunity to defend against the
States accusations." State v. Garron, 177 N.J. 147, 169, 827 A.2d 243, 256 (2003)
(quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35
L.Ed.2d 297, 308 (1973)), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157
L.Ed.2d 1204 (2004). A defendant exercises his right of confrontation through
cross-examination, which has been described as the "greatest legal engine ever
invented for the discovery of truth." California v. Green, 399 U.S. 149, 158, 90
S.Ct. 1930, 1935, 26 L.Ed.2d 489, 497 (1970) (quoting 5 Wigmore § 1367); see
13
also Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923,
926 (1965).
As illustrated in Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011) the
United States Supreme Court’s view of the Confrontation Clause is well-settled:
[t]he Confrontation Clause guarantees criminal
defendants the benefit of "the principal means by which
the believability of a witness and the truth of his
testimony are tested," Davis v. Alaska, 415 U.S. 308,
317, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) — subjecting
that testimony to "the crucible of cross-examination,"
Crawford, 541 U.S. at 61, 124 S.Ct. 1354. In the
American legal system, the role of cross-examination has
paramount importance to a criminal trial's core truthseeking function. See California v. Green, 399 U.S. 149,
158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (calling
cross-examination "the greatest legal engine ever
invented for the discovery of truth" (quotation omitted)).
A rigorous cross-examination may bring to light a
variety of reasons to doubt a witness's testimony, ranging
from innocent failures in perceptions and memory to
biases, prejudices, or ulterior motives, or outright
inconsistencies and falsehoods. See Davis, 415 U.S. at
317, 94 S.Ct. 1105. The Confrontation Clause also
advances the pursuit of truth by "insur[ing] that the
witness will give his statements under oath — thus
impressing him with the seriousness of the matter and
guarding against the lie by the possibility of a penalty for
perjury," and by "permit[ting] the jury that is to decide
the defendant's fate to observe the demeanor of the
witness in making his statement, thus aiding the jury in
assessing his credibility." Green, 399 U.S. at 158, 90
S.Ct. 1930.
14
To ensure these benefits of cross-examination, the Sixth
Amendment bars the admission of "testimonial hearsay"
against a criminal defendant unless (1) the declarant is
unavailable at trial; and (2) the defendant had a prior
opportunity to cross-examine that declarant. Crawford,
541 U.S. at 68, 124 S.Ct. 1354. Neither of these
requirements was satisfied here. Lewis was clearly
available — the prosecution had Lewis under subpoena
but simply chose not to call him as a witness.... Jones
never had a prior opportunity to cross-examine Lewis
about his statement. See id. at 54, 124 S.Ct. 1354 ("[T]he
common law in 1791 conditioned admissibility of an
absent witness's examination on unavailability and a
prior opportunity to cross-examine. The Sixth
Amendment therefore incorporates those limitations.").
Therefore, Jones' right to confrontation was violated if
Lewis' statement (1) was testimonial; and (2) was
hearsay. See id. at 68, 124 S.Ct. 1354. It was both.
Jones v. Basinger, 635 F.3d 1030, 1040-41 (7th Cir. 2011)
With regard to the case at bar, it is submitted that Brooks’ right to
confrontation was violated contrary to both the Sixth Amendment to the United
States Constitution and Article I, Paragraph 10 of the New Jersey Constitution.
U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. See also Jones v. Basinger, 635
F.3d 1030, 1043 (7th Cir. 2011); Ryan v. Miller, 303 F.3d 231, 248 (2d Cir. 2002);
United States v. Meises, 645 F.3d 5, 21-22 (1st Cir. 2011); See also See also State
v. Bankson, 63 N.J. 263, 271 (1973); State v. Branch, 182 N.J. 338 (2005).
15
Initially, it should be pointed out that at the Miranda hearing, Det. Bendul
testified that there was a previous investigation into the death of Roberto Arenas,
during the years 1996 to 1998 which had been conducted by Det. John Palotta of
the Bergen County Prosecutor's Office and Det. James Woods of the Passaic
County Prosecutor's Office. This investigation had produced a statement by
Ronald Wimbush incriminating Mr. Brooks. Thereafter, Wimbush was murdered
in 1998, unrelated to the investigation.
During Brooks’ trial, at the very outset of the State’s presentation to the
jury, in his opening remarks, the Prosecutor made reference to that statement. The
Prosecutor clearly suggested that Detective Bendul went to the Passaic County Jail
to question Brooks because Brooks had been inculpated in the crime in a statement
given to the police by Ronald Wimbush:
There are other people involved. You’ll hear their
names. You'll hear the name of Ronald Wimbush
[emphasis added]
*
*
*
*
*
You'll hear testimony that in about 1996 Ronald
Wimbush, one of the persons in t*he car, one of the
persons involved in this, he was apprehended,
questioned about something else, and he gave a
statement and based on that statement, the
investigation was reopened .
16
You’ll hear how he was about to be involved in
some undercover work that would help to uncover what
had happened in this case and to proceed forward, so
that the persons who committed this crime would be
brought to justice, and in an unrelated matter not related
tot his at all he died in Paterson before he could assist
any further in the investigation.
So in 1998, this could case became colder because
. . . Ronald Wimbush was no longer around. [emphasis
added]
As can be seen, the prosecutor told the jury that when Ronald Wimbush
(who was one of the other persons in the car in this case) was apprehended, he
gave a statement to police. According to the prosecutor, “based on that statement,
the investigation was reopened...so that the persons who committed this crime
would be brought to justice.” The clear inference is that it was Wimbush who
provided law enforcement with Mr. Brooks’ name.
This, however, was not an isolated incident during the course of the trial.
That Ronald Wimbush gave a statement inculpating the defendant was again
brought to the jury's attention by the Prosecutor, over trial counsel's objection,
during his direct examination of Detective Bendul:
PROSECUTOR: And can you tell us whether in 1996 something had occurred
that had briefly made this case active again prior to you taking
it over as a cold case?
17
DET. BENDUL: On November 18 of 1996, a man by the name of Ronald
Wimbush was arrested by members of the Fugitive Task
Force with the FBI in Paterson. He provided COUNSEL:
Objection, Judge. Hearsay I'd like to be heard.
TRIAL COURT: I haven't heard any statements that this witness said were being
said by a Mr. Wimbush . . . . I'm going to overrule the
objection.
PROSECUTOR: That would be my understanding what the witness would
testify to. What did he provide?
DET. BENDUL: He provided a statement to a Detective John Palotta with
our office as well as a Detective James Woods with the
Passaic County Prosecutor's Office relative to this
homicide.
PROSECUTOR: And can you tell us what kind of a statement was it?
DET. BENDUL: It was a stenographic statement.
PROSECUTOR: Let me show you what's been marked S-133.
COUNSEL:
I would object under State v. Bankston. I don't believe this
testimony is admissible. I believe it would call for hearsay
which has been found to be objectionable by courts for a long
time and I would ask that it not be admitted.
TRIAL COURT: I haven't heard anything.
COUNSEL:
Well, Judge, I can see where this is going. It's clear to me at
this point where the State intends to go with this testimony and
under Bankston I believe that this type of testimony is
inadmissible.
TRIAL COURT:
Let me hear from the Prosecutor.
18
PROSECUTOR:
I withdraw the question. I would like to rephrase the question.
TRIAL COURT: Withdrawn.
COUNSEL:
Judge, it's not the question itself. It's the whole line of
questioning regarding this statement. This person obviously -
PROSECUTOR: We haven't heard the testimony yet.
TRIAL COURT: He's not going to get the testimony of the statement in. It's not
coming in. He's not asking for it to come in. He said there was
a statement, a stenographic statement. He's shown this witness
something that's going to be marked for ID S-133 and I'm sure
after he looks at what's been marked for identification he'll tell
us what if anything he did in response to that document. He's
not going to tell us what's in the document.
COUNSEL:
That's the basis for the objection. I would ask to be heard
outside the presence of he jury.
PROSECUTOR: I withdraw the question, Judge.
TRIAL COURT: Withdraw the question. Next question.
COUNSEL:
I would ask the entire statement be withdrawn.
PROSECUTOR: I haven't done anything with the TRIAL COURT: it's not been offered.
COUNSEL:
It was just handed to the witness.
TRIAL COURT:
Next question.
PROSECUTOR: Now, what year did you say you reviewed some items in the
file?
19
DET. BENDUL: Was PROSECUTOR: From what year were the items?
DET. BENDUL: In 1996.
PROSECUTOR: As a result of reviewing the file did you go about beginning
your own investigation of a cold case of the murder of Roberto
Arenas?
DET. BENDUL: Yes.
PROSECUTOR: Can you tell us did you focus on any individuals at that time?
DET. BENDUL: Yes.
COUNSEL:
Objection for the same reason previously stated.
TRIAL COURT: Overruled.
PROSECUTOR: What were the identities of the individuals that you began
your investigation upon?
DET. BENDUL: Jerome Brooks and Albert Bolt. [emphasis added]2
As illustrated above, the prosecutor again, this time though the testimony of
Det. Bendul, undoubtedly suggested to the jury that Wimbush had inculpated
Brooks. The Prosecutor told the jury in his opening statement that the
investigation had been reopened based upon the statement provided by Wimbush.
Then, during his examination of Det. Bendul, the prosecutor asked for the
2
All the above argument took place in the presence of the jury.
20
identities of the individuals that began the reopened investigation, to which Det.
Bendul responded by identifying Mr. Brooks and Mr. Bolt. This was undoubtedly
attributable to the statement given by Wimbush because Det. Bendul testified that
Brooks and Bolt were the focus of the investigation based on his review of the
item(s) from 1996. Thus, it is respectfully submitted that the crystal clear
inference was that the statement obtained from Wimbush identified Mr. Brooks.
Appellant further submits that there really is no other objective way to look at it.
On the other hand, if there was any doubt left as to whether Wimbush’s
statement inculpated Brooks, this improper line of questioning continued when the
prosecutor asked Det. Bendul about his interrogation of the defendant:
PROSECUTOR: What did you proceed to say?
DET. BENDUL: I told him that again emphasizing that I believed that I
knew that he was involved in the murder of Roberto
Arenas, but I believed he was not the mastermind, that the
murder itself was not his idea. I told him that Wimbush had
previously provided a statement to the police and had
confirmed that the murder COUNSEL:
Judge, objection. For the same reason.
TRIAL COURT: Sustain the objection. [emphasis added] 3
3
Defense renewed its objection to the hearsay at the close of testimony that
day.
21
While the objection was sustained, the answer was not stricken, nor was any
curative instruction given. Therefore, the clear and unambiguous implication was
that, in his statement to the police before his death, Mr. Wimbush had identified
Mr. Brooks as being involved which triggered the reopening of this “cold case.”
As if this weren't enough, the prosecutor in his closing argument again
continued this theme that it was Wimbush that had inculpated the defendant and
that the detectives were well aware of that:
Now, you heard from Detective Bendul. Detective
Bendul took the stand and told you what he did. He
reviewed the file. He knew about the various reports in
the file. And he took the effort, obviously, to go and
find that Jerome Brooks. [emphasis added]
*
*
*
*
*
(T)he detectives had read the file . . . They knew about
Ronald Wimbush and they knew about James Brooks
. . . They knew he was involved. [emphasis added]
This was an unmistakable violation of both the Sixth Amendment to the
United States Constitution and Article 1, Paragraph 10 of the New Jersey
Constitution which guarantee a criminal defendant the right to confront “the
witnesses against him.” U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. See also
Crawford v. Washington, 541 U.S. 36 (2004).
22
In another federal case, Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002), the
Court explained that:
[t]he crux of this right is that the government cannot
introduce at trial statements containing accusations
against the defendant unless the accuser takes the stand
against the defendant and is available for cross
examination. See Bruton v. United States, 391 U.S. 123,
128, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (holding
defendant "was denied his constitutional right of
confrontation" where the government introduced
codefendant's statement that implicated defendant "in a
form not subject to cross-examination, since
[codefendant/accuser] did not take the stand")
Id. at 247.
Ultimately, in Ryan v. Miller the Second Circuit held that the Appellate
Division “unreasonably applied clearly established Supreme Court precedent in
denying Ryan’s Confrontation Clause claim.” This was because [t]he testimony of
the testimony of the two police officers constituted hearsay and contained implicit
accusations against Ryan in violation of the Confrontation Clause.” Id. at 256.
In coming to this conclusion, the Court explained:
...it is well established in this Circuit that lawyers may
not circumvent the Confrontation Clause by introducing
the same substantive testimony in a different form. "In
general, this Court has condemned practices designed to
circumvent these principles by asking a witness what he
learned from an out-of-court declarant," as opposed to
asking what an out of court declarant said. Mason, 16
23
F.3d at 43 (emphasis added). If the substance of the
prohibited testimony is evident even though it was not
introduced in the prohibited form, the testimony is still
inadmissible. "The fact that the content of [the coconspirator's] statement to [the detective] was not
revealed in detail was immaterial, for the plain
implication that the prosecutor sought to elicit, and
emphasized in his summation, was that the conversation
with [the co-conspirator] led the police to focus on [the
defendant]." Id. (finding the testimony contained an
implicit accusation and constituted reversible error)
(emphasis added); Reyes, 18 F.3d at 69 ("[A]lthough the
jury was not told exactly what words [the codefendants]
had spoken, [the witness's] testimony clearly conveyed
the substance of what they had said.") (emphasis added);
Danzey, 594 F.2d at 917, 918 (holding that testimony
that "[the codefendant] had named the nine men although
none of the names were mentioned" violated the
Confrontation Clause because "[e]ven on the agent's
testimony that names were named, the jury could readily
infer that [the defendant] was among them"); People v.
Cruz, 100 A.D.2d 882, 883, 474 N.Y.S.2d 142
(N.Y.App.Div.1984) ("The prosecutor's questioning of
[the witness] concerning a conversation with [a nontestifying witness], which directly preceded [the
witness's] testimony that he made two arrests in the case
was improper inasmuch as it was designed to create the
impression in the jurors' minds that [the non-testifying
witness] had implicated the defendant. ..."); see also
United States v. Figueroa, 750 F.2d 232, 240 (2d
Cir.1984) ("[F]rom a practical standpoint, [the witness's]
testimony became a recital by [the informant] of
proposals made by the recipient of the phone calls
[believed to be the defendant].... [Thus,] the government
successfully introduced crucial information while
shielding the source of that evidence — the informant —
from potentially devastating cross-examination.");
24
Reynolds, 715 F.2d at 101 (finding that inspector's
testimony that the codefendant told the defendant, "I
didn't tell them anything about you," violated the
Confrontation Clause); People v. Felder, 108 A.D.2d
869, 870, 485 N.Y.S.2d 576 (N.Y.App.Div.1985)
(holding erroneous testimony that "the complainant made
a response following which `we patted down both
subjects, placed them in handcuffs, and removed them
from the bar,'" because "[e]ven though his response was
not admitted into evidence, the testimony left the jurors
with the clear impression that he was particularly sure
and that the arrests were made as a result of this
response"). Such hearsay testimony containing implicit
accusations violates the Confrontation Clause.
Ryan's case resembles the facts in Mason v. Scully, 16
F.3d 38 (2d Cir.1994). In Mason, the main police
investigator testified to the arrest of the three coconspirators. In explaining how the police focused on the
defendant, the police investigator testified as follows:
Q. And, after the lineup [in which [the victim]
identified [a co-conspirator]], was a conversation held
with [that co-conspirator]?
This is a yes or no question.
A. Yes.
Q. And, after this conversation with [the coconspirator], were you looking for somebody?
A. Yes, I was.
Q. And, who were you looking for?
A. Terrence Mason.
Id. at 40. Thus, as in Ryan's case, the police testimony
did not "reveal[] in detail" "the content of [the
codefendant's] statement to [the detective]." Id. at 43.
However, the Court found this "immaterial, for the plain
implication that the prosecutor sought to elicit, and
emphasized in his summation, was that the conversation
with [the codefendant] led the police to focus on [the
25
defendant]." Id. at 43. The Second Circuit held this type
of testimony containing implicit accusations violates the
Confrontation Clause. See id.; cf. United States v. Check,
582 F.2d 668, 679 (2d Cir.1978) (holding that a witness's
testimony about what he said to an informant, in
response to what the informant told the witness about the
informant's conversation with the defendant, qualified as
hearsay because "in substance, significant portions of
[the witness's] testimony ... was a transparent attempt to
incorporate into the [witness's] testimony information
supplied by the informant who did not testify at trial.").
Ryan argues that, as in the Mason case, the officers'
testimony, while not repeating an explicit accusation
against Ryan, left the jury with nothing to conclude other
than that Peter Q. had accused Ryan because Jensen and
Reck testified that Jensen instructed Reck to charge
Ryan with murder after learning from Palumbo what
Peter Q. said. Conversely, respondent argues that the
testimony was not hearsay because it was simply "a
nebulous reference to an unelaborated verbal
communication" and because neither officer's testimony
directly revealed the source or the content of the
conversation between Jensen and Reck. This, however,
misses the point of Ryan's argument. The relevant
question is whether the way the prosecutor solicited the
testimony made the source and content of the
conversation clear. That is, did the testimony make
obvious to the jury the content of the conversation — an
accusation against Ryan — and the source — Peter Q. —
even though it did not directly state this information.
Respondent argues that Mason is distinguishable because
the Mason Court noted that "there was no police work
that turned up [the defendant], and the only lead to him
obviously came from [the detective's] conversation with
[the co-defendant]," Mason, 16 F.3d at 44, whereas in
26
this case, independent police investigation, not just Peter
Q.'s accusations, led the police to focus on Ryan. We
reject this contention that Mason is distinguishable.
It is respectfully submitted that the Brooks case, likewise, is analogous to
the facts in Mason v. Scully since Det. Bendul’s testimony, coupled with the
Prosecutor’s remarks, while not repeating an explicit accusation against Brooks,
left the jury with nothing to conclude other than that Wimbush had accused
Brooks thereby triggered the reopening of the investigation which began with Mr.
Brooks.
Based upon the foregoing, it is respectfully submitted that, in the instant
matter, the state court was, indeed, “objectively unreasonable” in not finding a
Confrontation Clause violation. See Wiggins v. Smith, 539 U.S. 510, 528 (2003) ;
Roundtree v. Balicki, 640 F.3d 530, 537 (3d Cir. 2011).
Finally, in affirming the lower Court’s denial of post-conviction relief, the
Appellate Division concluded in this case that “even if the detectives statement at
trial respecting his conversations with Wimbush violated the Bankston principle,
in view of defendant’s confession and his testimony at trial, the error was
harmless.”
On habeas review, a constitutional error is considered harmless unless it can
be shown to have “had substantial and injurious effect or influence in determining
27
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 622 (1993), quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946). If the Court has so much as
a “grave doubt as to the harmlessness of [a constitutional error], it should grant
relief.” O’Neal v. McAninch, 513 U.S. 432, 445 (1995).
When determining whether a Confrontation Clause error was harmless,
several factors are examined, including “the importance of the witness testimony
in the prosecution’s case, whether the testimony was cumulative, the presence of
absence of evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution’s case.” Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986) .
Weighing these factors, it is submitted that there can be little doubt that Det.
Bendul’s testimony regarding Wimbush’s statement had a particularly “substantial
and injurious effect” on the jury’s verdict. Brecht, 507 U.S. at 622. Essentially,
“[a]t its core, that testimony was nothing but a thinly-veiled introduction of
additional, but inadmissible, evidence” of Brooks’ guilt. See Jones v. Basinger, at
1052.
Nonetheless, the state appellate court, the United States District Court, and
thereafter, the Court of Appeals for the Third Circuit, concluded that any error was
28
harmless. It is respectfully submitted that these courts erred, however, because
they focused on what the evidence would have shown without Wimbush’s
statement finding that there was independent evidence from Brooks confession
and trial testimony that Brooks was a criminal actor. App. 1-11.
In fact, while the Court of Appeals agreed that there was a likely violation
of the Confrontation Clause, that appellate counsel was ineffective for failing to
raise the issue in the state proceedings and that the state court’s conclusion to the
contrary amounted to an unreasonable application of federal law, the Court of
Appeals found this to be “harmless”:
Although the contents of the statement were not
admitted in evidence at Brooks’s trial, we agree with
Brooks that the testimony, when combined with the
prosecutor’s repeated references to Wimbush’s statement
in his closing argument, likely violated Brooks’s rights
under the Confrontation Clause because it implied to the
jury that Wimbush had implicated him in the murder.
We also agree that Brooks’s appellate counsel was
ineffective for failing to raise that issue in the state
proceedings and that the state court’s conclusion to the
contrary amounted to an unreasonable application of
federal law.
That said, in light of the overwhelming evidence
of Brooks’s guilt - including his trial testimony
attempting to walk back an earlier taped confession - we
agree with the District Court that any Confrontation
Clause violation was harmless, and moreover, that any
deficiency on the part of Brooks’s appellate counsel did
not rise to the level of prejudicial error as required under
29
Strickland v. Washington, 466 U.S. 668 (1984). We
therefore affirm the District Court’s denial of habeas
relief. App. 1-11.
Yet, as illustrated in Jones, v. Basinger, that analysis is fatally flawed:
That analysis ignores the significant prejudicial effect the
error can have on a jury’s ability to evaluate fairly the
remaining evidence. That analysis also offers
prosecutors no real incentive to comply with the
Constitution so long as any evidence not admitted in
error is legally sufficient to sustain a conviction. For that
reason, under Brecht, the harmless-error “inquiry cannot
be merely whether there was enough [evidence] to
support the result, apart from the phase affected by the
error. It is rather, even so, whether the error had
substantial influence” in light of the entire record.
Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239; Brecht, 507
U.S. at 638, 113 S.Ct. 1710.
Jones v. Basinger, at 1053.
If the District Court, state appellate court, and Court of Appeals had not
overlooked this principle, it is contended that they would have recognized
Wimbush’s statement’s substantial effect on the jury’s evaluation of Brooks’
credibility. This is especially true given that the prosecutor, in summation,
pointed out repeatedly, that based upon Wimbush’s statement, the police knew
when Brooks was lying to them:
So he [Brooks] lied and he was caught in another
lie. And the reason why this case moved forward was
because Detective Bendul knew enough about the case
30
that he knew when he was lying that when he said that he
wasn’t around in November of 1983, Detective Bendul
took a break, went upstairs to the squad room, got
records together, came back and put the records before
him and said, “This shows that you were around during
that period of time.”
He was caught in his lie. He was caught in his lie.
And then he started to deny his involvement he had to
say well, I was there but I only shot one time.
And you notice that in the time frame that
according to Detective Bendul, that happened, that basic
first admission happened at 11:40 AM, just prior to
noon. He wasn’t there being browbeaten. He wasn’t
there for hours and hours and deprived of sleep or
somehow mistreated. He was only there an hour, but
when it was proven to him that he was a liar, he had to
go ahead and start backtracking from his original
statement.
But again why is he going to tell the detectives?
Well, because the detectives had read the file. They
knew about Albert Bolt. They knew about Ronald
Wimbush and they knew about Jerome Brooks. So when
he would lie to them, they knew he wasn’t telling the
truth and when they would confront him he would have
to go and admit a little bit more.
And what was his real motivation? What was his
real motivation? He knows that he’s been caught in lies.
He knows he was involved and that he lied about that.
Therefore, by allowing Bendul’s testimony about the substance of
Wimbush’s statement, coupled with the prosecutor’s remarks relying thereon to
argue that the police knew that Mr. Brooks was lying to them, it was much more
31
likely that the jury would resolve any doubts about Brooks’ credibility in favor of
conviction. See Jones v. Basinger, at 1054.
In light thereof, it is submitted that it can not be said that the improper use
of Wimbush’s statement was harmless. To the contrary, the testimony regarding
Wimbush’s statement undoubtedly had a substantial influence on the jury’s guilty
verdict thereby warranting habeas relief under Brecht.
PETITIONER WAS DENIED THE EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL IN
VIOLATION OF THE UNITED STATES
CONSTITUTION
It is submitted that Mr. Brooks did not receive effective assistance of
counsel on his direct appeal. Specifically, appellate counsel failed to properly
raise those issues asserted herein regarding the improper admission of the
statement of Ronald Wimbush, an alleged non-testifying co-conspirator. (See
above Point.)
A basic tenet of the system of justice in the United States is that every
person being tried for criminal charges is entitled to the assistance of counsel.
In some instances, counsel has acted in a manner, either by choice or by virtue of
the State's or court's actions, so contrary to the interests of his or her client that the
courts will judge the performance constitutionally invalid without looking further
32
to the consequences of counsel's actions. More often, however, counsel’s failing
will be somewhat less blatant and, while still deficient, not present quite so clear a
picture as to the constitutional adequacy of his or her performance.
Therefore, the United States Supreme Court has developed a test for
determining whether an attorney has provided effective assistance to his or her
client in cases where that attorney has not acted in a way so egregious as to allow
the court to make a per se finding that he or she has rendered ineffective
assistance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
673 (1984) reh. den. 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864; United
States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
Thus, in such cases, a claim for ineffective assistance of counsel is
evaluated under the two prong standard set forth in Strickland v. Washington, 466
U.S. 668; 80 L. Ed. 2d 674 (1984).4 In order to establish a claim of ineffective
assistance of appellate counsel, Mr. Brooks must show (1) that counsel’s
performance was deficient and (2) that the deficient performance was prejudicial.
Strickland v. Washington, at 687.
4
This standard was adopted by the Supreme Court of New Jersey in State
v. Fritz, 105 N.J. 42 (1987).
33
The first prong requires Brooks to show that counsel made errors “so
serious that counsel was not functioning as ‘counsel’ guaranteed by the Sixth
Amendment.” Id. This showing can be made by demonstrating that the attorney’s
performance was unreasonable under prevailing norms. United States v. Day, 969
F.2d 39, 42 (3d Cir. 1993).
To establish prejudice under the second prong, Brooks must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” United States v. Mannino, 212 f.3d
835, 840 (3d Cir. 2000).
It is true that an appellate attorney does not have to raise issues which he
considers frivolous on appeal. Jones v. Barnes, 463 U.S. 745,749; 77 L. Ed. 2d
987, 991 (1983). Nevertheless, an attorney must raise the meritorious issues on
appeal which are likely to lead to a defendant's conviction being reversed on
appeal. Otherwise such an attorney is rendering ineffective assistance of counsel.
See Evitts v. Lucey, 469 U.S. at 389; 83 L. Ed. 2d at 823. Mr. Brooks respectfully
submits that the record demonstrates that he would have received a new trial on
appeal if his appellate counsel had raised the appropriate issues asserted herein.
(See above Point.)
34
In this case, it is simply inexplicable that appellate counsel on direct appeal
would not have raised the issue that Brooks was wrongly convicted on the basis of
hearsay testimony in violation of the Confrontation Clause of the federal and state
constitutions. Trial counsel not only objected to this line of questioning numerous
times during Det. Bendul’s testimony, but even renewed the objection to this
impermissible and highly prejudicial hearsay at the close of testimony that same
day. (See above Point.)
The failure by Brooks’ appellate attorney to subject the prosecution's case to
meaningful adversarial testing meant that the adversary process itself became
presumptively unreliable. See Davis v. Alaska, 415 U.S. 308; 39 L. Ed. 2d 347
(1974). In failing to raise these obvious issues, appellate counsel failed in the role
of expert assistant to the defendant. See Evitts v. Lucey, 469 U.S. at 394; 83 L. Ed.
2d at 828 n. 6.
Although the contents of the statement were not admitted in evidence at
Petitioner’s trial, the Court of Appeals, nonetheless, agreed with Petitioner that the
testimony, “when combined with the prosecutor’s repeated references to
Wimbish’s statement in his closing argument, likely violated Brooks’s rights
under the Confrontation Clause because it implied to the jury that Wibmush had
impliced him in the murder.” The Court of Appeals agreed “that Brooks’s
35
appellate counsel was ineffective for failing to raise that issue in the state
proceedings and that the state court’s conclusion to the contrary amounted to an
unreasonable application of federal law.” App. 1-11.
Ultimately, however, the Court of Appeals agreed with the District Court
“that any Confrontation Clause violation was harmless.” Moreover, the Court of
Appeals concluded “that any deficiency on the part of Brooks’s appellate counsel
did not rise to the level of prejudicial error as required under Strickland v.
Washington, 466 U.S. 668 (1984).” In so doing, for the reasons set forth herein, it
is respectfully submitted that the Court of Appeals erred.
To the contrary, for the foregoing reasons, it is respectfully submitted that
Mr. Brooks was not afforded the effective assistance of appellate counsel.
36
CONCLUSION
For the reasons stated in this petition, Mr. Jerome Brooks respectfully
requests that a writ of certiorari be issued to review the decision below.
Respectfully submitted,
CRAIG S. LEEDS, ESQ.
Counsel for Petitioner/Counsel of Record
1205 Anderson Avenue, Suite 2
Fort Lee, New Jersey 07024
(201)886-8200
Dated: April 24, 2018
37
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.