STATE OF NEW JERSEY VS. KEVIN BAKER AND SEAN WASHINGTON (95-08-1950, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 26, 2019
• Docket: A-0716-17T3/A-0719-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-0716-17T3 A-0719-17T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN BAKER and SEAN WASHINGTON,

Defendants-Appellants. __________________________

Argued October 7, 2019 – Decided December 26, 2019

Before Judges Sabatino, Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 95-08-1950.

Lesley C. Risinger and Lawrence S. Lustberg argued the cause for appellants (Last Resort Exoneration Project Seton Hall University Law School, attorneys for Kevin Baker; Gibbons PC, attorneys for Sean Washington; Lesley C. Risinger, D. Michael Risinger, Lawrence S. Lustberg, and J. David Pollock, on the joint briefs). Natalie A. Schmid Drummond, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Jill S. Mayer, Acting Camden County Prosecutor, attorney; Natalie A. Schmid Drummond, of counsel and on the briefs).

Frank Muroski, Deputy Attorney General, argued the cause for amicus curiae Office of the Attorney General (Gurbir S. Grewal, Attorney General, attorney; Sarah Lichter, Deputy Attorney General, of counsel and on the brief).

Raymond M. Brown argued the cause for amici curiae Askia Jabir Nash, Rodney Roberts, David Shephard, and Anthony Ways (Greenbaum, Rowe, Smith & Davis, LLP, attorneys; Raymond M. Brown, of counsel and on the brief; Stephanie Reckord and Robert J. Flanagan, III, on the brief).

Linda Mehling argued the cause for amici curiae Innocence Project, Exoneration Initiative, and Innocence Network (Frank R. Krack and Linda Mehling, on the brief).

PER CURIAM

After a two-day jury trial in 1996, defendants Kevin Baker and Sean

Washington were found guilty of murdering two victims who had been shot to

death outside of a Camden housing project. The State's case hinged upon the

testimony of a sole eyewitness, a drug addict who claimed she had seen the

shooting and saw defendants running from the scene. Defendants' convictions

were upheld on direct appeal and in ensuing collateral proceedings.

A-0716-17T3 2 With the assistance of pro bono counsel and innocence organizations,

defendants filed new petitions for post-conviction relief ("PCR"), alleging actual

innocence, ineffective assistance of trial counsel, and prosecutorial suppression

of material evidence. They also moved for a new trial based upon newly

discovered evidence, including forensic expert proof utilizing scientific

techniques that did not exist or were not widely available at the time of their

trial. After a lengthy evidentiary hearing, the judge who had presided over the

trial rejected defendants' petitions and motions.

For reasons detailed in this opinion, we reverse the trial court's denial of

relief and grant defendants a new trial. We do so mainly because of the newly

discovered forensic evidence that powerfully undermines the sole eyewitness's

varying descriptions of the shooting, coupled with non-forensic exculpatory

proof of a 9-1-1 recording the defense obtained many years after the trial.

Viewed objectively, that material evidence, if it had been presented,

probably would have changed the jury's verdict. The additional proof calls into

serious question whether defendants' guilt was established beyond a reasonable

doubt. The circumstances were "clearly capable of producing an unjust result."

R. 2:10-2. We do not, however, declare defendants to be "actually innocent,"

A-0716-17T3 3 but instead provide the State with the option of pursuing a second trial, mindful

of the lengthy intervening passage of time.

TABLE OF CONTENTS I. Facts and Procedural History ....................................................................... 5 A. Indictment and Trial ............................................................................... 5 B. Verdict and Sentencing ........................................................................ 15 C. Washington's Appeal ............................................................................ 16 D. Washington's First PCR Petition ........................................................... 16 E. Washington's Federal Petition for a Writ of Habeas Corpus and Second PCR Petition ............................................................................................. 19 F. Baker's Appeal and First PCR Petition .................................................. 19 G. Baker's Habeas Petition and Second PCR Petition ............................... 23 H. Defendants' Current PCR Petitions and Motions for a New Trial .......... 24 1. Baker's Filing and Litigation Regarding Redden's Deposition ............ 24 2. Testimony of Forensic Witnesses ...................................................... 24 3. Washington's Filings and Motion Practice ......................................... 31 4. Fact Witnesses ................................................................................... 32 a. Washington's Testimony and Supporting Witnesses ....................... 32 b. Baker's Testimony and Supporting Witnesses ................................ 41 5. Other Evidence .................................................................................. 48 I. The PCR Court's Decision ..................................................................... 48 J. Defendants' Appeals .............................................................................. 49 II. Overall Legal Standards ........................................................................... 50 A. PCR ..................................................................................................... 51 B. New Trial Motions ............................................................................... 52 III. The Newly Discovered Evidence ............................................................ 57 A. Forensic Evidence ................................................................................ 57 B. Proof of Washington's Identity As the 9-1-1 Caller ............................... 68

A-0716-17T3 4 C. The Other Non-Forensic Proofs ............................................................ 71 IV. Impact of the Additional Proofs .............................................................. 72 V. Ineffective Counsel Claims ...................................................................... 74 VI. Brady v. Maryland Issues ....................................................................... 78 VII. Remaining Points .................................................................................. 79 VIII. Conclusion ........................................................................................... 80

I.

(Facts and Procedural History)

Because of the significant issues at stake, we discuss the facts and

procedural history in extensive detail.

A. Indictment and Trial

In 1995, a Camden County Grand Jury charged defendants Baker and

Washington in Indictment No. 95-08-1950 with the following offenses:

conspiracy to commit first-degree murder, N.J.S.A. 2C:5-2 (count one); two

counts of first-degree murder, N.J.S.A. 2C:11-3(a) (counts two and three);

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (count four); third-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b) (count five); and second-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7 (counts six and seven).

The parties tried the case before a jury in July 1996. Baker was

A-0716-17T3 5 represented by Frederick L. Gumminger from the Office of the Public Defender,

and Washington was represented by private counsel, Michael W. Kahn. The

State called six witnesses during the two-day trial. Defendants did not call any

witnesses.

The prosecutor, in his opening, called it "a one-witness case" and said that

the "evidence is going to come from the testimony of Denise Rand principally."

After opening statements, the court held a Wade 1 hearing to consider the

reliability of Rand’s identification of defendants as the perpetrators. She

testified at the hearing that she knew Washington "since he was little." She

testified she knew Baker for five or six years, although she previously said, in

her statement to investigator Harry Glemser of the Camden County Prosecutor's

Office a few days after the murders, that she knew Baker for two years, and gave

further inconsistent answers in her trial testimony.

The court ruled after the Wade hearing that the State proved by clear and

convincing evidence that Rand's in-court identification of defendants was not

the result of a suggestive out-of-court identification, because Rand knew both

defendants before the murders and there was not a substantial likelihood of

misidentification.

1 United States v. Wade, 388 U.S. 218 (1967). A-0716-17T3 6 At trial, Rand testified that she was at Roosevelt Manor, a housing project

in Camden, in the early morning hours of January 28, 1995, and witnessed the

murders. She claimed she saw victim Margaret Wilson, who was known as

"Murph," and victim Rodney Turner, who was known as "Rock," when they

were shot and "they dropped" to the ground. According to Rand, she heard "two

or three shots" and had "seen two" shots before defendants ran past her.

Rand claimed she knew that defendants shot Wilson and Turner "because

[defendants were the] only two that ran past me." She recalled she saw both

Baker's and Washington's faces, and she had no doubt in her identification of

them. Rand did not know if defendants saw her that morning, and could not

recall what they were wearing.

Rand, who sometimes wore glasses, vacillated on many aspects of her

narrative. She first said that she saw one of the defendants with a gun in his

hand, but could not remember which one. Later, she testified that she only saw

Baker with a gun in his hand, not Washington. The prosecutor attempted to use

Rand's police interview with Glemser to refresh her recollection, and after

reading a portion of the transcript, Rand initially said that both defendants had

guns. She later said that she only saw a gun in Washington's hand and could not

recall if Baker had a weapon.

A-0716-17T3 7 When confronted with the portion of transcript in which Rand told

Glemser she was not paying attention to see if defendants had weapons when

they ran past her, she responded that she "was standing there" and "just had to

be paying attention." She explained that her response to Glemser that she was

not paying attention "was the answer at the time." She acknowledged, however,

that she "wasn't paying no attention."

Rand could not recall which defendant shot Turner, and which one shot

Wilson. She continued reading from the transcript of her police interview that

she saw Turner "get shot first" and that "K.B." shot him. 2 Rand stated that the

transcript refreshed her recollection, but initially testified that she could not

recall seeing "K.B." shoot Turner, before later saying she remembered seeing

"K.B." shoot Turner in the head. She testified that Washington shot Wilson.

When asked "how close together" the shootings were, Rand responded that

"[t]hey lay right next to each other." 3

After the shooting, Rand went and got Turner's wife, Sandra Turner. By

2 At the evidentiary hearing, Baker acknowledged that people referred to him as "K.B." 3 In context, the prosecutor's question appears to be asking how much time elapsed between the two shootings, but Rand interpreted it instead as asking about the physical distance separating the two victims.

A-0716-17T3 8 the time Rand returned to the scene the police had arrived.

Rand admitted that she had gone to Roosevelt Manor to buy drugs, that

she had smoked "ready rock" crack cocaine approximately two hours before the

shootings, and that at the time she smoked crack every two to three hours.

Although she admitted being under the influence at the time of the murders, she

claimed she was "not to the point where I don’t know what I'm seeing."

Rand agreed that the sun had not yet risen at the time of the shootings,

before 6:00 a.m. in January 1995, and that it was "still basically nighttime," but

also confusingly said "it was dark, but it was light" and "it wasn't tha t dark."

She was standing on the curb of Phillip Street and the shooting occurred in the

courtyard halfway between Phillip Street and 8th Street. 4 According to Rand,

defendants ran past her and then down Phillip Street towards Ferry Avenue.

When asked who she was with at the time, Rand initially answered that it

was "none of your business," before saying that she was accompanied by her

cousin, Tyrone Moore. She testified that he was walking a few feet behind her

at the time of the shootings. She was confronted, however, with the police

interview in which she told Glemser that Moore was walking in front of her.

4 The maps in defendants’ appendix referred to the street as both "Phillip" and "Phillips." A-0716-17T3 9 She then confusingly said that Moore was "in front of me, behind me, he was

there" and repeated that he was in "[f]ront of me, behind me." After saying she

did not remember where Moore was in relation to her, she said, "I turned around,

he was gone." She initially was unsure whether that was before or after the shots

were fired, but later said she was sure it was after they were fired.

Rand testified that she knew Washington "for a long time" meaning "since

he was little." She did not know Baker for "that long," but estimated she knew

him for "some years." On cross-examination, Rand admitted telling Glemser

that she knew Baker for two years and testifying at the Wade hearing that she

knew Baker for five years, before stating that she could not recall how long she

knew Baker.

None of the State's other trial witnesses observed the shooting. Detective

Fred Jefferson of the City of Camden Police Department testified that he was a

patrol officer at the time of the murders and was dispatched to Roosevelt Manor

at 5:57 a.m. He arrived approximately three to five minutes later and confirmed

that it was still dark and also "very cold" at that time. Jefferson saw two bodies

in the courtyard of the complex, one laying "semi-fetal" and the other "flat on

their [sic] stomach." He secured the scene and located empty casings from a

nine-millimeter (mm) semi-automatic weapon. Jefferson said Turner's father

A-0716-17T3 10 came to the crime scene.

Investigator Michael Corbin of the Camden County Prosecutor's Office

received a pager notification at 6:11 a.m. on the morning of the murders, when

it was still dark outside. He arrived at Roosevelt Manor at 7:05 a.m. Corbin

testified that the distance from Phillip Street, where Rand said she was standing,

to Turner’s and Wilson's bodies, was approximately ninety feet. At the scene,

Corbin collected three cartridge cases with "a head stamp of SB 9 millimeter

Luger." He assumed the projectiles within those casings were fired from an

automatic weapon. Neither Jefferson nor Corbin were aware of anyone claiming

to be an eyewitness while they were at the crime scene.

Sergeant John Jacobs, the unit supervisor of the New Jersey State Police

ballistics unit at the time of the murders, was qualified in the State's case as an

expert in ballistics and firearms. Jacobs explained that all three of the

discharged shells were nine-millimeter caliber and manufactured by "Squires

Bighams."5 He examined the discharged shells and determined that they were

all fired from the same firearm, but was unable to determine the particular

firearm involved, although it would have been a "9 millimeter Luger caliber

5 The transcript says "Squires Bighams," but the correct name may be Squires Bingham. A-0716-17T3 11 type."

Jacobs was unable to determine if the shells were discharged from a

revolver or an automatic weapon, although he recognized that an automatic

weapon would eject the discharged shells when it was fired, whereas a person

would have to manually remove the shells from a revolver. He could not discern

the "lands and grooves" on the two bullets recovered from Wilson’s clothing

due to their "mutilated condition." Thus, he was unable to determine if the

bullets were fired from the same gun as the discharged shells, or to say

definitively how many guns were used in the murders.

George Hickman from the State Police crime laboratory was presented as

an expert in trace evidence analysis. Hickman testified that gun powder and

lead were detected in the area around the two bullet holes in Wilson's white knit

hat, which indicated "a relatively close shot."

Dr. Robert Segal, the Camden County Medical Examiner, performed the

autopsies on Turner and Wilson. Dr. Segal was qualified as an expert witness

in forensic pathology and wound ballistics. He opined that Turner died from a

bullet fired from within a half-inch of his head, entering behind his left ear, and

exiting behind his right ear. Wilson, meanwhile, died from two gunshot wounds

to her head and a "relatively minor" gunshot wound to her left arm. Two bullets

A-0716-17T3 12 entered the right side of her head above her ear and exited on the left side of her

face, one near the corner of her mouth and the other near the corner of her eye.

There was also a "single through and through" bullet wound to her left arm.

Dr. Segal was unable to determine if Wilson was shot two or three times,

because the wound to her left arm could have been a continuation wound from

one of the bullets that exited the left side of her face. He testified "[t]here is no

way to tell whether this bullet passing through the arm was related to eithe r of

these two [head] wounds or was a third wound."

At the time of trial, Baker had two prior indictable convictions: a January

1991 fourth-degree aggravated assault for pointing a firearm at another person

and a January 1993 possession of cocaine with intent to distribute within 1000

feet of school property. Washington had four prior convictions for third -degree

possession of a controlled dangerous substance, two from July 1990, and two

from March 1992. The State moved to use defendants' prior convictions to

impeach their credibility, if they testified. The court granted the State's motion,

but ordered the convictions sanitized to include only the degree of the crime, the

date of conviction, and the sentence imposed. Following that ruling, neither

defendant testified at trial.

Tyrone Moore, Rand's cousin was with her at the time of the murders and

A-0716-17T3 13 told police that they were blocks away and that Rand could not have seen the

shootings. He was listed as a potential defense witness and prepared to testify.

So was Baker's girlfriend, Michelle Redden, who maintained that she was with

Baker at the time of the shootings. Neither was called to testify, however, as

defendants did not offer any evidence on their behalf.

During summations, the court prevented defense counsel from suggesting

that Moore may have killed Turner and Wilson. After their own closing

arguments, both defense attorneys moved for a mistrial because the prosecutor

repeatedly and loudly interrupted them. The court denied the motions. Th e

following day, before jury instructions, both defense attorneys again moved for

a mistrial, arguing, in part, that the court's ruling preventing them from

suggesting that Moore might have been the murderer violated defendants' rights.

The court also denied those motions. The defense attorneys then moved for a

judgment of acquittal, which the court denied.

The court did not instruct the jury on the lesser-included offenses of

aggravated manslaughter and manslaughter because "the only evidence as to

what allegedly occurred is the testimony of [Rand] who indicated she saw the

defendants basically walk up behind the victims, point a gun and shoot the two

victims in the head and flee."

A-0716-17T3 14 B. Verdict and Sentencing

The jury convicted defendants of two counts of first-degree murder,

conspiracy to commit murder, and possession of a weapon for an unlawful

purpose. It acquitted defendants of unlawful possession of a weapon.

Both defendants moved for judgment notwithstanding the verdict, which

the court denied. Defendants were then tried on the certain persons not to have

weapons charges, but the jury could not reach a verdict, the court declared a

mistrial, and those charges were dismissed on the prosecutor's motion.

On September 20, 1996, after merging the other convictions into the

murder convictions, the court sentenced each defendant to two consecutive

terms of life imprisonment, each with a thirty-year period of parole ineligibility,

for an aggregate sentence of life in prison with a sixty-year parole ineligibility

period. At sentencing, the court remarked that both defense attorneys had made

tactical decisions not to call any witnesses, including at least one witness who

was present in the courthouse, because they apparently thought Rand was not a

credible witness and the jury would not believe her.

Defendants filed motions for a new trial, but withdrew those motions after

filing their notices of appeal. On November 21, 1996, the court nonetheless

issued written findings of fact and conclusions of law regarding defendants'

A-0716-17T3 15 motions pursuant to Rule 2:5-1(b).

C. Washington's Appeal

In March 1999, this court affirmed Washington's convictions and

sentence. State v. Washington, No. 3943-96 (App. Div. March 17, 1999). The

panel added that "[a]s to [his] alibi contention, . . . we express no view as to its

merit, leaving it for post-conviction review." The Supreme Court denied

Washington's petition for certification. State v. Washington, 161 N.J. 150

(1999).

D. Washington's First PCR Petition

In January 2000, Washington filed a pro se PCR petition, alleging

ineffective assistance of counsel for failure to call witnesses, including Moore,

Redden, and his nephew, Dwight Collins. In November 2000, after hearing

argument from Washington's appointed counsel, John Havrilchak, the trial court

denied the petition.

After Washington appealed, we remanded for the trial court to determine

whether Washington's trial counsel was ineffective for failing to call Collins as

a witness. State v. Washington, No. A-3140-00 (App. Div. June 27, 2002). We

specifically directed the trial court to hold an evidentiary hearing and assess

Collins's credibility.

A-0716-17T3 16 On March 25, 2003, the trial court held a hearing in which Collins testified

that Washington was cooking chicken at Collins's mother's house on the morning

of the murders at approximately 5:00 a.m. According to Collins, around 6:00

a.m., Washington left to make a call from the pay phone near the intersection of

Eighth Street and Central Avenue, which was about a one-minute walk from

where the bodies were found, because Washington did not want to use the phone

in Collins's mother's house. Collins said that Washington may not have wanted

to use his mother's phone because he was selling drugs, or, alternatively, because

he was calling someone out of the local area and his mother's phone service was

supposedly limited to local calls.

Washington returned approximately five to seven minutes later, "very

emotional" and "crying." Washington told Collins that he saw two people laying

on the ground, and that he thought one of them was Collins's brother Darnell

Wheeler (who was also Washington's nephew), because Wheeler had a similar

jacket. According to Collins, Washington then called 9-1-1 from Collins's

mother's phone.

Collins testified that Baker and Washington knew each other, but were not

close friends, and that he had never seen them "hang out together." Collins

confirmed that if he had been called at trial, he would have testified on

A-0716-17T3 17 Washington's behalf.

After observing Collins’s testimony at the March 2003 evidentiary

hearing, the court found he was not credible because was a convicted felon who

admitted to using false identification documents.6 The court also found he was

biased because he was Washington's nephew. It further found that Collins's

testimony placed Washington close to the location of the shootings at the

approximate time they occurred.

The court concluded Collins's testimony would not have affected the

outcome of the trial and denied Washington's PCR petition. Washington then

moved to reopen the PCR proceedings to present additional evidence, but the

court denied the motion.

In November 2005, we affirmed the PCR court's denial of Washington's

petition. State v. Washington, A-4730-02 (App. Div. Nov. 9, 2005). In February

2006, the Supreme Court denied his petition for certification. State v.

Washington, 186 N.J. 255 (2006). Justice Long and Justice Albin added a

separate statement in which they "note[d] that in their view, the Court's [order]

does not preclude defendant from bringing a further petition for post-conviction

6 Although Collins had a criminal record at the time he testified at Washington's PCR hearing, he did not have one at the time of Washington's trial. A-0716-17T3 18 relief in respect of witness-related issues that were not fully considered by the

trial court or the Appellate Division on the merit." State v. Washington, 189

N.J. 640 (2006).

E. Washington's Federal Petition for a Writ of Habeas Corpus and Second PCR Petition

Washington thereafter filed a pro se petition for a writ of habeas corpus

(habeas petition) in federal district court, but later withdrew it without prejudice

so that he could file a second PCR petition in state court. Washington v. Ricci,

631 F. Supp. 2d 511, 515 (D.N.J. 2008). He then filed a pro se PCR petition and

motion for a new trial, both of which the trial court denied on November 28,

2007.

Washington reinstated his federal habeas petition, which the federal

district judge dismissed with prejudice on September 29, 2008. Ricci, 631 F.

Supp. 2d at 513, 528. The district court also denied Washington a certificate of

appealability ("COA"). Ibid. On May 13, 2009, the United States Court of

Appeals for the Third Circuit denied Washington's application for a COA.

F. Baker's Appeal and First PCR Petition

In February 1998, we affirmed Baker's convictions and sentence on direct

appeal. State v. Baker, No. A-1143-96 (App. Div. Feb. 23, 1998). We

specifically rejected Baker's claim that his trial counsel was ineffective for

A-0716-17T3 19 failing to obtain expert witnesses to testify about eyewitness identification and

the effects of crack-cocaine. We also rejected Baker's argument that

prosecutorial misconduct required reversal of his convictions, although we

chastised the prosecutor's behavior as "loud, boorish and rude" and referred the

matter to the Camden County Prosecutor.

In May 1999, Baker, represented by Edward J. Crisonino, filed a PCR

petition alleging ineffective assistance of trial counsel. One of the issues raised

in Baker's PCR petition was that his trial attorney Gumminger was ineffective

for failing to call several witnesses, including Redden, Moore, and Latasha

Langston.7

The trial court concluded that Gumminger was not ineffective and that his

decision "not to call witnesses was a strategic move based upon the decision at

that time that the witness called by the State was not credible and the jury would

not believe her."

On October 29, 1999, the trial court held an evidentiary hearing and heard

testimony from Baker and Gumminger regarding Baker's contentions that

Gumminger did not meet with him enough prior to trial and also incorrectly told

him he could not testify because the jury would hear his unsanitized c riminal

7 Langston's first name is spelled "Latesha" in some transcripts. A-0716-17T3 20 record.

Gumminger clarified at the outset of his PCR testimony that he did not

"have [his] file with [him]" and was testifying based solely on his memory. He

thought he met with Baker four to six times prior to trial. He advised Baker not

to testify, but in the end it was Baker's decision, although Gumminger could not

recall if he told Baker that his prior record would have been sanitized at trial.

Gumminger confirmed that Redden was present in the courthouse during

the trial and prepared to testify. Gumminger explained he did not call her

because, based on her "general demeanor," she "would not have come across as

a truthful witness." According to Gumminger, Redden claimed that she was

watching a television program featuring Larry Kane 8 with Baker at the time of

the murders. He decided not to call her as a witness because the prosecutor was

prepared to call witnesses from the television station to "contradict the timing,

and maybe even the existence of this television show." Gumminger said that his

primary concern in advising Baker not to testify was not Baker's prior record,

but instead that the "phantom television show" created a risk that "the alibi

would have blown up and would have caused more problems than it would have

helped." Gumminger believed that Redden "was profoundly afflicted with

8 The transcript incorrectly refers to "Larry King." A-0716-17T3 21 credibility problems."

After hearing Gumminger's PCR testimony, the court denied Baker relief

on his claims. The court found that Gumminger met with Baker prior to trial

and made a justifiable strategic decision not to call Redden to testify, because

he believed she was not credible and the alibi testimony would be contradicted

by the State's evidence. The court also found that Baker made the ultimate

decision not to testify.

In March 2001, we remanded the matter to the trial court to allow Baker

to develop and pursue his claim that trial counsel was ineffective for failing to

investigate and present evidence that Washington was the "lone gunman." State

v. Baker, No. A-1543-99 (App. Div. March 15, 2001). We instructed that "[o]n

remand, the judge may set time limitations and other conditions to assure a fair

and expeditious final determination of the merits of [Baker's] claim."

On remand, Baker submitted an affidavit from Langston. Baker also

furnished an investigative report recounting an interview with Collins, who

alleged that he was with Washington around the time of the murders. The trial

court found that Baker failed to prove that his trial counsel was deficient or that

there was a reasonable probability that the outcome of his trial would have been

different, and denied his PCR petition.

A-0716-17T3 22 In November 2003, we affirmed the denial of Baker's PCR petition,

without prejudice to him filing a subsequent petition arguing that his PCR

counsel was ineffective. State v. Baker, No. A-3759-01 (App. Div. Nov. 14,

2003). In February 2004, the Supreme Court denied Baker's petition for

certification. State v. Baker, 179 N.J. 312 (2004).

G. Baker's Habeas Petition and Second PCR Petition

In December 2004, Baker filed a habeas petition in federal district court

alleging ineffective assistance of counsel. On September 26, 2005, Judge

Jerome B. Simandle denied Baker's petition. Judge Simandle noted, however,

that Baker had not exhausted his claim that PCR counsel was ineffective and

could still raise that issue in a subsequent PCR petition in state court. According

to the State's brief, both Judge Simandle and the United States Court of Appeals

for the Third Circuit denied Baker's application for a COA, but those orders are

not included in the parties' appendices.

In May 2007, Baker, now represented by Louis H. Miron, filed another

PCR petition, alleging ineffective assistance of PCR counsel, but later withdrew

that petition and did not refile it.

A-0716-17T3 23 H. Defendants' Current PCR Petitions and Motions for a New Trial

1. Baker's Filing and Litigation Regarding Redden's Deposition

In January 2013, Baker filed the instant PCR petition and motion for a

new trial. Before filing his petition and motion, Baker unsuccessfully sought a

court order, first in the Civil Part and then in the Criminal Part, that would permit

him to take a de bene esse deposition of Redden because she was suffering from

stage-four terminal breast cancer. We affirmed both the Civil Part's and

Criminal Part's denials of Baker's application, but added that "in light of

defendant's additional filings, the criminal court must reconsider defendant's

application to compel Ms. Redden's testimony at either a deposition or an

evidentiary hearing." In re Petition of Baker, Nos. A-3754-11 and A-4368-11

(App. Div. April 30, 2013). Redden died before she was deposed.

2. Testimony of Forensic Witnesses

The trial court heard testimony from defendants' forensic witnesses in

support of Baker's motion for a new trial before deciding whether to grant an

evidentiary hearing. 9

9 The testimony of the forensic witnesses occurred before Washington filed his PCR petition and motion for a new trial. The forensic witnesses did not testify a second time, and the PCR court considered their testimony in connection with both Baker's and Washington's claims. A-0716-17T3 24 Dr. Michael Baden, who was certified as an expert in forensic pathology,

testified on November 12, 2013. Dr. Baden concluded that Turner had been shot

once from close range on the left side of his head while his head was positioned

upright. He estimated that Turner had been dead for at least fifteen minutes

before the emergency medical technicians ("EMTs") arrived based on their

observations about blood coagulation and the temperature of the body.

Dr. Baden concluded that only two bullets struck Wilson, based on the

following facts: (1) the entry and exit wounds in Wilson's head lined up with

the wounds on her arm; (2) the wounds to her arm were superficial perforations

that did not go all the way through her arm or connect to each other; and (3) the

bullets were found in her clothing. He further testified that Wilson was shot

while lying on the ground with her left arm raised against her head, because the

bullet tracts were nearly parallel, which indicated that Wilson was not moving

at the time she was shot. In addition, if she had been upright when she was shot,

her body would not have fallen in the position it was found, and she would have

had blood dripping down her body. On cross-examination, Dr. Baden

acknowledged it was possible that Wilson was shot while standing upright, but

said it was "so unlikely that I would fault such a diagnosis." On redirect, he

stated he was "[m]ore than 95 percent certain" that Wilson was shot while she

A-0716-17T3 25 was lying on the ground.

Dr. Baden particularly disagreed with two of the medical examiner’s

conclusions from trial. First, he disagreed that the wound to Wilson's arm was

a through and through wound from a single bullet, because there were two

separate wounds that did not connect. Second, he disagreed with Dr. Segal's

conclusion that there was no way to tell if the wounds to Wilson's arm were from

a third bullet or a continuation from the two bullets that passed through Wilson's

head. According to Dr. Baden, if the wounds in Wilson's arm were from a third

bullet, they would "have to line up, one being the entrance, one being the exit,

and there being a tract between the two[,]" which was not the case.

Dr. Baden concluded that Wilson was shot twice, and the wounds to her

arm were continuation wounds from the two bullets that passed through her

head. If she had been shot directly in the arm, the bullet would have gone all

the way through. The two bullets found in her clothing were "spent" because

they already had passed through the hard bones of her skull twice, which slowed

them down "greatly" and prevented them from going through her arm.

Last, Dr. Baden opined that a hypothetical in which a person said he or

she saw two people run up to the victims and shoot them in the head while they

were standing, and then saw the victims drop to the ground, as Rand had

A-0716-17T3 26 testified, would be "totally inconsistent with the way [Wilson] was shot and the

way she was found."

Baker also presented expert testimony from Lucien C. Haag, who was

qualified as an expert in ballistics, firearms identification, wound ballistics, and

shooting incident reconstruction. Haag agreed with Jacobs's trial testimony that

the three shell casings recovered at the scene were fired from the same weapon.

He further opined that all three casings were fired from a semi-automatic pistol,

which differed from Jacobs's testimony that he could not identify the type of

firearm.

Haag explained that nine mm revolvers that fire Luger ammunition were

"very rare." He stated he would "have a hard time finding one" because, unlike

revolver cartridges, the Luger cartridges had no rim, which made them difficult

to remove from a revolver. Additionally, in Haag's forty-seven years of

experience, he was only aware of two instances in which shell casings were

manually removed from a revolver at the scene of the crime. In both instances,

it was done so that the shooter could reload the revolver, leading him to question

Jacobs's testimony that it was a possibility in this case.

Haag also disagreed with Dr. Segal's trial testimony that the lack of "lands

and grooves" on the two projectiles recovered from Wilson's clothing was due

A-0716-17T3 27 to their degraded condition. He explained that it actually was due to shallow

rifling, which is "a signature of very inexpensively made semi-automatic

pistols." Haag testified that both bullets were fired from the same firearm, again

contradicting Segal's testimony at trial that it could not be determined. Haag

opined that the evidence did not support a conclusion that more than one gun

was used in the shootings.

Haag examined the projectiles the day before his PCR testimony and

discovered mineral grains as well as "abrasive damage . . . not from just hitting

bone," which indicated that the bullets struck hard-packed soil. He also

observed what he called the "bow effect," which occurs when a bullet ricochets

off soil and the mineral grains "act just like a sand blasting" and leave "scoring"

and "scratching" on the projectile. Crime scene photographs showed that the

ground under Wilson's head was a "hard packed bare earth area" that was

consistent with the mineral particles embedded in the tips of the bullets. Haag

therefore concluded that the bullets struck the ground and ricocheted off at low

velocity before they penetrated Wilson's arm. He opined that there was no way

that could have occurred if Wilson was shot while she was standing upright and

ruled that out as a possibility.

Haag's cross-examination in the PCR hearing did not occur until almost a

A-0716-17T3 28 year later. He acknowledged that Turner died from a through-and-through bullet

wound. Because the bullet that killed Turner was not recovered, and the murder

weapon was never found, Haag could not rule out that a second firearm was

involved, though he saw no evidence to support that notion.

On re-direct, Haag testified that he first described the bow-effect

phenomenon in 1996, and that it started to be disseminated in the "firearms and

tool marks community" in 2002. He agreed that the SEM/EDS 10 testing done by

the State Police laboratory showed the presence of silica and several other

minerals not associated with bone on the bullets. Haag also agreed that very

few laboratories would have had a scanning electron microscope at the time of

defendants' trial.

The parties stipulated in the PCR hearing to the admissibility of an expert

report by Adele Boskey, Ph.D. She concluded that the high levels of silicon on

the bullets could only have come from an exogenous source, most likely silicon

dioxide in sand or dirt. In addition, Dr. Baden submitted a supplemental report

that modified his initial conclusion that the bullets passed through Wilson's skull

10 As defined in defendants' brief, SEM/EDS refers to scanning electron microscopy with energy dispersive spectroscopy, which allows for an item to be examined at high magnification and analyzed to determine which chemical elements are present. A-0716-17T3 29 and then directly into her arm. Incorporating Haag's findings, Dr. Baden

concluded that the bullets ricocheted off the ground before hitting Wilson's arm.

Stephen Deady, who worked in the ballistics unit for the State Police and

the Ocean County Sheriff's Department, was qualified at the hearing as an expert

in firearms identification and ballistics. He agreed with Haag that the two

recovered bullets were most consistent with those used in the nine mm Luger

caliber casings recovered at the scene, and likely were fired from an

"inexpensive, cheaply made firearm," but he could not rule out other cartridges

of the same caliber class because no firearm was recovered. He also agreed that

the three shell casings were fired from the same firearm, but could not determine

the type of firearm, though they were "consistent" with being discharged from a

semi-automatic pistol, which was "the most common firearm from which they

would be fired."

Deady posited, however, that the three shell casings would have a

magazine mark, extractor mark, and ejector mark if they had been loaded into

the magazine of a semiautomatic pistol and then extracted and ejected manually

before being loaded in, and discharged from, a revolver. Thus, he could not

determine what type of firearm discharged the shell casings. He agreed with

Jacobs's trial testimony that more than one gun could have been involved in the

A-0716-17T3 30 murders. All Deady could say conclusively was that the three shell casings were

discharged from the same firearm, that the two bullets were fired from the same

gun, and that he could not tell if the bullets and casings were fired from the same

weapon.

Haag then testified in sur-rebuttal that the ejector marks on the shell

casings were so deep that they could not have been made by manually ejecting

the shells from a semiautomatic weapon. In addition, the combination and

spatial orientation of the ejector mark, firing pin impression, and extractor mark,

led him to conclude that the shell casings were discharged from a nine mm semi-

automatic pistol. The relationship between the three marks was too consistent

for them to have been manually ejected from a semiautomatic pistol and the n

fired from a revolver.

3. Washington's Filings and Motion Practice

Washington filed his own additional PCR petition and motion for a new

trial in September 2014. Defendants filed a joint motion to consolidate their

PCR petitions and later filed a motion for relief in the nature of summary

judgment.

On June 16, 2016, the trial court entered an order and accompanying

opinion denying those motions, but granting defendants an evidentiary hearing.

A-0716-17T3 31 4. Fact Witnesses

a. Washington's Testimony and Supporting Witnesses

Washington testified that he was having dinner and drinks with Beverly

Branch in her apartment in Roosevelt Manor between 10:00 p.m. and 1:00 a.m.

the night before the murders. He then went to another apartment, also in

Roosevelt Manor, where a "bunch of males," including his nephew Wheeler and

Raheem Miller, were drinking alcohol, smoking blunts, and listening to music.

He asked Raheem to "roll [him] up a joint," but Raheem told him "you don’t

want none of this" because it was laced with PCP, which Washington previously

had told them to stop smoking. Washington got mad and left around 4:30 a.m. 11

According to Washington, he borrowed Wheeler's car and went back to

Branch's apartment, but she could not get something to eat with him because her

children were sleeping. He drove back towards the party and saw Moore, who

flagged him down and asked if he wanted to buy some boneless chicken breasts.

Washington paid him ten dollars for the chicken. Washington testified that this

was not unusual because drug users were "always . . . running around sell ing

things late at night."

11 We use Raheem Miller's first name to avoid confusion because his mother Patricia Miller was a witness at the evidentiary hearing. A-0716-17T3 32 As recounted by Washington, he dropped the chicken off at his sister's

apartment, drove to buy soft drinks, returned to his sister’s apartment, and fried

the chicken. He accidentally woke his nephew, Collins, and as they were talking

and eating the chicken, Washington's pager went off. He admitted that he used

the pager to deal drugs.

About twenty minutes later, Washington went to the pay phone near

Eighth Street and Central Avenue to make the call, because the area code was

not in Camden and his sister's phone was restricted to local calls. He brought

fifty-five cents for the call, saying he knew the amount because he had placed

the same call many times before, but the call did not go through, so he walked

around looking to borrow money from someone. He explained that it was a

"drug-infested area" and "people would be out all hours of the morning selling

drugs, and people would be out there looking for drugs."

As Washington was walking, he noticed "a pile of something" on the

ground, and as he approached and was about six to eight feet away, he realized

it was two bodies in a pool of blood. He screamed "oh, my God, they dead, they

dead" and people came to their windows to see what was happening.

Washington thought one of the bodies was his nephew, Wheeler, because he saw

an Army fatigue jacket similar to the jacket Wheeler was wearing earlier that

A-0716-17T3 33 morning. As he ran back to the pay phone to call 9-1-1 he saw Moore, who

"yelled [the victims’] names, and then . . . took off running."

Washington testified it was his voice in the audio recording of the 9 -1-1

call reporting the deaths. After calling 9-1-1, he returned to the scene and

remained there for three or four minutes until the police arrived, after which he

went back to his sister's apartment and asked Collins about Wheeler. He called

Wheeler from the phone in the apartment but could not reach him. Washington

thought Wheeler was one of the victims even after Moore said it was "Rock"

and "Murph," because he did not trust Moore and he was "traumatized" and

upset.

Washington returned to the scene and encountered Patricia Miller on the

way, and told her he had just found two dead bodies and thought one of them

was his nephew. After staying at the scene for "a while," he went back to

Branch's apartment and woke her up, crying, and told her what had happened.

After discovering that he was wanted for murder, Washington left

Camden. He went to Newark, and then Trenton. While in Trenton, he learned

that a man in Camden had been shot and killed and people thought Washington

was the victim because they looked alike. He returned to Camden and was

arrested on March 22, 1995.

A-0716-17T3 34 Washington admitted selling drugs in the area of Roosevelt Manor, and

occasionally hearing gunshots. He recognized that it was a dangerous area but

said he did not fear for his safety. Washington admitted he was an "enforcer"

in the drug trade, but denied ever owning a gun, although other friends and

family members carried weapons. Washington claimed he had a fear of guns

from the time he was young because his uncle died when a friend accidentally

shot him.

Washington acknowledged he was charged with two additional homicides.

In one case, a woman named Mary Trusty identified Washington and Wheeler

as the individuals who murdered her cousin, but they were acquitted. Trusty was

also the first person to identify Washington as a suspect in the murders of Turner

and Wilson.

According to Washington, he told his trial counsel Kahn the first time they

met that he made the 9-1-1 call, and Kahn said he would get the tape and have

the voice analyzed. Washington also asserted he told all of his prior attorneys

that he made the 9-1-1 call, but none of them obtained a copy of the recording,

and he was not aware that a recording existed until Baker's current counsel

obtained a copy in 2013. Washington explained that he had refused to sign an

affidavit prepared for one of his PCR hearings because it incorrectly stated that

A-0716-17T3 35 he had called 9-1-1 from his sister's apartment, instead of the pay phone.

Washington testified that Collins incorrectly stated that Washington called

9-1-1 from the apartment.

Washington admitted he knew Baker, but stated he did not get along with

him and they were not friends. Washington grew up in Roosevelt Manor, but

Baker did not move to the neighborhood until he was eleven or twelve. They

"didn't associate" because Baker "got into it one time with a gentleman from the

neighborhood that [Washington] was cool with" and because Baker previously

dated a girl that Washington later dated. Washington was aware that Baker sold

drugs.

Washington also knew Turner, and although he "knew of" Wilson, he only

knew her name and would not be able to recognize her. Around 2010 or 2011,

Washington learned that Raheem Miller, who was by that point deceased, had

told people that he shot Turner and Wilson.

Langston testified at Washington's hearing that two or three "close"

gunshots woke her sometime in the morning of January 28, 1995, but she went

back to sleep because "it was the norm." She was later awakened by a voice that

sounded like Washington. Langston was unsure what time the shooting woke

her or how long she fell back asleep before she heard Washington. She thought

A-0716-17T3 36 that Washington was yelling for help and saying, "I'm bleeding," because he had

been shot, but her boyfriend clarified that Washington said "they bleeding."

According to Langston, she went to her window and saw Washington

walking towards the phone booth on the corner of 8th Street, and assumed he

called the police. She remained at her window, and shortly afterwards she saw

Washington return to the scene. Her boyfriend went outside and asked

Washington what happened, to which Washington responded that there were two

dead bodies in the courtyard.

Around that time Moore appeared at the scene, grabbed a stick that he

used to lift the victims' hoods to reveal their faces, and said that the dead bodies

were "Rock" and "Murph." "Murph" was Langston's cousin. Raheem Miller

was her brother. Langston further testified that the voice on the 9-1-1 recording

sounded like Washington.

Patricia Miller, Raheem's mother, testified that she heard gunshots that

morning and ran to her children's rooms, but Raheem was not home. About

fifteen minutes later she went outside, where she encountered Washington, who

was "very emotional" and "had tears in his eyes." She asked him what was

wrong, and he said that he thought his nephew Wheeler had been shot and was

laying on the ground dead. She recognized the voice on the 9-1-1 call as

A-0716-17T3 37 Washington's voice.

Branch, who was romantically involved with Washington at the time of

the murders, testified that on the morning of the shootings Washington came to

her house "very upset." He kept repeating, "They were dead." She also

recognized Washington's voice from the 9-1-1 recording.

Lamont Powell testified that on the night before the murders he was at a

party at his cousin's house in Roosevelt Manor "smoking weed and drinking"

with Wheeler, Washington, who he called Stump, and Raheem, who he called

Lump. Washington left in the early morning hours, and Raheem, who had

smoked angel dust, decided that he was going to kill a witness in his brother's

unrelated murder trial. Raheem, along with Wheeler, dressed in black and told

Powell that they then went to a nearby house and kicked the door in, but the

witness escaped. Wheeler left, and Raheem remained behind to wait for the

witness to return, but was spotted by two people who said his name, so he shot

them. Powell said that he did not "care for" Baker and was not friends with

anyone at the apartment except Raheem.

Powell had a lengthy criminal history and had recently been sentenced to

thirty-three months in prison for violating community supervision after serving

a ten-year federal prison term. At the time of defendants' trial, he would not

A-0716-17T3 38 have helped them unless Raheem gave him permission. Although he was friends

with Raheem and said he "loved him," Powell also said that Raheem's death was

"one of the best things that probably ever happened in this world" because he

was "evil."

Henrietta Washington, Washington's mother, identified her son's voice as

the caller in the 9-1-1 recording. Harriet Fleming, Washington's sister, also

identified Washington as the caller. Likewise, Collins identified Washington as

the caller in the 9-1-1 recording.

John Hamilton, an EMT, also testified at the hearing. Hamilton had been

dispatched to the crime scene at 5:56 a.m. and arrived at 6:01 a.m. His report

indicated that the two victims had been dead for approximately fifteen minutes.

On cross-examination, he admitted that fifteen minutes was "a best guess."

Robert Waszazak, who was also an EMT, testified that he might have moved

Wilson's body to check her pulse and her pupil responsiveness, but was not sure.

Eric Winch, the director of I.T. projects at Seton Hall Law School,

testified about an estimated timeline of events he created based on the 9-1-1

calls, police dispatch communications, and the distances between various

locations. On cross-examination Winch acknowledged various assumptions and

limitations that influenced his estimates.

A-0716-17T3 39 Harry Reubel, an investigator in the Camden Region Office of the Public

Defender, ("OPD") became involved with Washington's PCR petition in 2002.

Reubel testified that the area where the shootings occurred was not visible from

10th Street and Van Hook Street, which was where Moore said he and Rand had

been at the time of the incident. 12 He also testified that the only information

provided to him by PCR counsel indicated that the shootings occurred at 5:57

a.m. He interviewed Collins, but could not locate Redden or Rand. He

confirmed that Collins told him Washington called the ambulance and the police

from a phone in the apartment.

Kahn, who represented Washington at trial, testified at the PCR hearing

that he did not consider consulting a forensic pathologist, firearms examiner, or

shooting incident reconstruction expert, and that an ordinary criminal defense

lawyer in 1996 would not have done so either. From the first time Kahn met his

client, Washington maintained that he was cooking chicken that morning and,

when he went outside, he discovered the bodies and called 9-1-1.

Kahn admitted that he "did very little" to investigate Washington's claims,

but he did send an investigator to interview Collins shortly before trial. Kahn

12 Van Hook Street has been renamed Carl Miller Boulevard since the time of the murders. A-0716-17T3 40 said Washington provided him with the names of other people to corroborate his

account, but he did not interview them. Kahn acknowledged he did not try to

determine a timeline of events or the physical layout of the surrounding area.

Kahn was not aware that a recording of the 9-1-1 call existed. When it

was played for him, he was "absolutely clear" that Washington was the voice on

the recording and said that Washington sounded "distraught and upset." Kahn

stated that if he had obtained the recording before trial, it "absolutely . . . would

[have] changed everything" because he would have called Washington to the

stand and "introduced that tape to corroborate his testimony."

Kahn admitted that he did not appropriately investigate the case before

trial and "made an inappropriate and inaccurate decision . . . that this was best

thought of as a one witness case." His inaction was based on the State's inability

to locate Rand for a period of time prior to trial and his belief that Rand was a

"very, very poor witness," who he characterized as "a prostitute, strung out on

crack."13

b. Baker's Testimony and Supporting Witnesses

Baker testified that he was with Redden at her mother's house in Roosevelt

13 That court granted the State several continuances so that it could locate Rand. She eventually was located and held on a material witness warrant.

A-0716-17T3 41 Manor cooking shrimp between midnight and 2:00 a.m. on January 28, 1995.

Around 2:30 a.m., a friend, Teddy Hilton, gave them a ride to Redden's

apartment in the Fairview section of Camden. 14 They went to sleep around 4:00

a.m., and remained inside the apartment for the rest of the day. He first learned

about the murders when Redden's brother came by the apartment and told them

what had happened. Baker did not recall watching any news programs about the

murder with Redden. His PCR testimony was consistent with what he told the

police after he was arrested.

At the time of the shootings, Baker knew who Washington was, but was

not friends with him. The State offered Baker a plea deal of eight years in prison

if he cooperated against Washington, but he could not give the police any

information because he did not know anything about the shootings. Baker

claimed that he had pled guilty to one of his prior felony convictions even though

he was innocent in return for a favorable plea deal.

Sharay Redden, Michelle Redden's sister, testified that Michelle died of

breast cancer in September 2013. 15 Michelle consistently repeated, over almost

twenty years, that Baker was at her apartment in the Fairview section of Camden

14 Hilton was deceased at the time of the instant PCR hearing. 15 Her name is spelled both Sharay and Shray in the record. A-0716-17T3 42 at the time of the shootings and that he was not involved in the murders.

Another witness, Vinson Montgomery, was formerly the polygraph

examiner for the OPD and was certified as an expert in the field of polygraphs.

In 2008, he performed a polygraph examination of Baker in which Baker denied

taking part in the killings of Turner and Wilson. He called Baker's polygraph

results "amazing” and said he had a "high degree of confidence that Mr. Baker

was telling the truth."

Gumminger, Baker's trial counsel, testified that Baker and Redden

maintained that Baker was with Redden in her apartment at the time of the

shooting. When he went over Glemser's report with Redden in November 1995,

she identified several errors. In particular, Glemser wrote that Redden said her

brother woke her and Baker "in the earlier hours of the morning" and informed

them that "Murph" had been shot and killed. Redden clarified to Gumminger,

however, that she told Glemser her brother woke her and Baker when it was

"light out but approaching evening" and informed them that "Murph" and

"Rock" had been killed.

More significantly, Glemser wrote that Redden told him that shortly after

her brother woke them up, she and Baker watched a television show called “The

Bulletin with Larry Kane” in which he discussed the murders. Glemser then

A-0716-17T3 43 reached out to KYW News 3 in Philadelphia, which confirmed that Kane’s show

did not air the morning of the murders. Redden, however, told Gumminger that

what she actually said to Glemser was that she was watching a show like “The

Bulletin with Larry Kane,” and it was about the general murder rate in Camden.

She saw a news report about the murders later that evening. Those discussions

between Gumminger and Redden were reflected in contemporaneous notes in

his file, which he reviewed with counsel at the PCR hearing.

Defendants’ counsel played for the court a recording from the 11:00 p.m.

news, which started with a promotion for "The Bulletin with Larry Kane,"

included a report on the murders, and featured an interview with a prosecutor

about the murder problem in Camden. Several Philadelphia television station

reporters were present at the press conference about the murders. Gumminger

testified that the recording "confirm[ed]" Redden's recollection and

"undermine[d]" Glemser's report. He explained that although it did not prove

Baker's whereabouts at the time of the murders, that fact was understandable

because Baker and Redden were asleep at the time. He further explained that

the video was of "extremely high value" because "it corroborate[d] the

truthfulness of [Redden's] testimony and the veracity of it" and "show[ed] that

she ha[d] a full, firm grasp on the sequence of events on that given day."

A-0716-17T3 44 Gumminger admitted he had "adopted as fact" Glemser's report and

"mistakenly took Glemser's version of events and misunderstood them to

contradict what [Redden] was saying when, in fact, it was not contradicting what

she was saying at all," but instead "misrepresenting" Redden's account. He

testified that his misunderstanding was the main reason he did not call Redden

as a witness at trial and that otherwise he would have called her to testify.

Gumminger acknowledged he "could have discovered this information . . . and

. . . undermined Glemser's report, or proceeded with the alibi," which would

have been "much stronger." He also said that at Baker's first PCR hearing he

was still under the mistaken impression that Glemser's report would undermine

Redden's alibi statements. He added that he had never previously seen Glemser's

letter to KYW News, or their response to him.

Gumminger did not have access to his case file when he testified as a

witness for the State in Baker's first PCR hearing, and he repeated his trial errors

because he still mistakenly believed that the State had undercut Redden's alibi

testimony.

Gumminger confirmed that he received Moore's polygraph report in

discovery. Moore denied murdering "Murph" and "Rock," being present when

they were murdered, or knowing who committed the murders. He failed the

A-0716-17T3 45 polygraph test, however, which indicated that he was lying. Rand was not given

a polygraph examination, and Gumminger believed that was an intentional tactic

by the State to intimidate Moore and undermine his testimony.

Gumminger explained he did not call Moore as a trial witness because he

wanted to argue that Moore was the shooter and Rand was protecting him. He

did not realize that the court would not permit him to argue Moore was the

shooter during his summation without any corroborating evidence, and

acknowledged that his "misapprehension of the law" prevented him from calling

Moore as a witness. If he had a better understanding of the law, Gumminger

said he would have called Moore as a witness to contradict Rand.

At the PCR hearing under review, Gumminger listened to an audio

recording of Rand's police interview, and believed that when first asked to

identify the shooters, she said the initials "J.D.," not "K.B.," as reflected in the

transcript of the interview that was produced to defendants prior to trial. He

explained that if he had the recording prior to trial he would have used it to

support his argument that Rand did not know Baker "very well and her

identification was shaky." Gumminger confirmed that at the time it was not

typical for audio recordings to be turned over, only transcripts, and that he did

not ask for the recording of Rand’s police interview. He also confirmed that

A-0716-17T3 46 there was no one with the initials "J.D." involved in the case, but said that he

would have used this information to support an argument that Glemser "put the

words K.B. in her mouth."

Gumminger also listened at the hearing to an audio recording of the police

interview of Mary Trusty. In the recording, Trusty told police that Rand said

she was present when the shootings occurred, but Rand did not tell Trusty

whether she witnessed the shooting. Trusty explained that Rand “might as well

say it" and that Rand "didn’t say who did the shootings, because [Trusty] already

had knew." Trusty added that she “knew” because she heard "talk" that

Washington was the shooter. Gumminger said that Trusty's failure to name

Baker, and her statement that her knowledge about who shot Wilson and Turner

was based on second-hand "talk," would have been useful at trial.

Crisonino, Baker's first PCR counsel, said he had pursued a theory that

Washington was the lone gunman. Baker initially advanced that theory in the

current PCR proceedings, but abandoned it once the State produced the 9-1-1

recording and his counsel established that Washington was the caller.

Michael Klein, a former manager in the Public Defender's Office, testified

that Baker's second PCR counsel never submitted a request for an expert and did

not do much work on the case.

A-0716-17T3 47 5. Other Evidence

On the second-to-last day of the PCR hearing, defendants' counsel

indicated to the court that although they served subpoenas on Rand and Moore,

the two did not appear at the hearing. Nonetheless, counsel declined to request

a bench warrant. Instead, they submitted a certification dated September 19,

2012, from Carla Johnson, who was deceased at the time of the hearing, claiming

that Rand said she did not witness the murders. They submitted another

certification dated March 14, 2003, from Anna Griffin, who was also deceased

at the time of the hearing, stating that she had overheard Rand recant her trial

I. The PCR Court's Decision

On August 31, 2017, the court entered an order denying defendants' PCR

petitions and motions for a new trial. The court explained its reasoning in a 112-

page decision that predominantly recounted the testimony set forth above. The

court found that Baker, Washington, Kahn, Gumminger, Collins, Langston,

Powell, and Winch all were not credible witnesses. It assumed, without

deciding, that a freestanding actual innocence claim was cognizable in New

Jersey, but held that defendants did not meet their burden to show that they were

innocent.

A-0716-17T3 48 Among other things, the court determined that defendants' ineffective

assistance of counsel claims were time-barred. Proceeding nonetheless to the

merits of those claims, the court concluded defendants' trial attorneys were not

deficient and defendants did not suffer prejudice from their attorneys' failure to

call potential witnesses at trial. The court also found the prosecutio n did not

suppress material evidence.

The court further ruled that defendants did not establish that newly

discovered evidence entitled them to a new trial, either because the evidence

could have been discovered prior to trial through the exercise of reas onable

diligence, or because it would not undermine the jury's verdict.

J. Defendants' Appeals

Defendants both appealed, and we listed their appeals back-to-back. We

entered an order granting a motion of Askia Jabar Nash, Rodney Roberts, David

Shephard, and Anthony Ways to participate as amici curiae (the "exoneree

amici") in support of defendants. We also entered orders granting amici status

to the Innocence Project, the Exoneration Initiative, and the Innocence Network

(innocence organization amici) in support of defendants.

We further granted the Attorney General's motion to file an amicus brief

on a self-selected limited basis to address solely the question of whether an

A-0716-17T3 49 “actual innocence” standard should or needs to be adopted under New Jersey

law. We permitted all amici parties to participate in oral argument. We have

consolidated defendants’ appeals, which were calendared together, for purposes

of this single opinion. 16

II.

(Overall Legal Standards)

Defendants contend the PCR court erred by declining to set aside their

convictions based on newly discovered evidence and the alleged ineffectiveness

of their previous counsel. As part of their arguments, defendants and the amici

aligned with them advocate that New Jersey courts adopt more receptive

standards for entertaining such claims. They argue wrongfully convicted

persons in our state should be permitted to gain relief if they show they are

"actually innocent" of the crimes for which they had been found guilty,

regardless of customary procedural bars that may disallow such claims.

We need not address these contentions for a change in New Jersey law

because, as our analysis will show, defendants are entitled to a new trial under

our existing analytical framework governing PCR and claims of newly

16 We are most grateful for the helpful written and oral advocacy of the amici. A-0716-17T3 50 discovered evidence. Moreover, any ultimate change in the legal framework is

more appropriately for the Supreme Court, and not this intermediate appellate

court, to consider.

Defendants' claims implicate well-established legal standards for claims

of newly discovered evidence and PCR petitions. The standards are somewhat

related and overlapping. They consist of the following.

A. PCR

"Post-conviction relief is New Jersey's analogue to the federal writ of

habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v.

Preciose, 129 N.J. 451, 459 (1992)). It serves as a safeguard to ensure that a

criminal defendant was not unfairly convicted and is the "last line of defense

against a miscarriage of justice." State v. Nash, 212 N.J. 518, 526 (2013).

The grounds for post-conviction relief include, in relevant part:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey; [or]

....

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

[R. 3:22-2.]

A-0716-17T3 51 The burden is on the defendant to establish his or her right to post -conviction

relief "by a preponderance of the credible evidence." Nash, 212 N.J. at 541

(quoting Preciose, 129 N.J. at 459).

If a trial court holds an evidentiary hearing on a motion for a new trial or

a PCR petition, an appellate court generally "applies a deferential standard; it

'will uphold the PCR court's findings that are supported by sufficient credible

evidence in the record.'" Pierre, 223 N.J. at 576 (quoting Nash, 212 N.J. at 540).

Appellate courts do not defer to a trial court's interpretation of the law, which is

reviewed de novo. Ibid. When considering mixed questions of law and fact, we

will defer to the PCR court's factual findings that are supported by the record,

but exercise plenary review over "the lower court's application of any legal rule

to such factual findings." Id. at 577. Subject to certain exceptions we will apply,

infra, we ordinarily defer to a trial court's credibility determinations because it

has the ability to observe the testimony firsthand. Pierre, 223 N.J. at 576.

B. New Trial Motions

Rule 3:20-1 governs motions for a new trial, which in the post-conviction

context often are brought in conjunction with a PCR petition. A new trial motion

"based on the ground of newly-discovered evidence may be made at any time .

. . ." R. 3:20-2. A court must examine newly discovered evidence "with a certain

A-0716-17T3 52 degree of circumspection to ensure that it is not the product of fabrication[.]"

State v. Ways, 180 N.J. 171, 188 (2004). Nonetheless, "[h]owever difficult the

process of review, the passage of time must not be a bar to assessing the validity

of a verdict that is cast in doubt by evidence suggesting that a defendant may be

innocent." Ibid.

Newly discovered evidence is sufficient to warrant a new trial only if it

is: "(1) material to the issue and not merely cumulative or impeaching or

contradictory; (2) discovered since the trial and not discoverable by reasonable

diligence beforehand; and (3) of the sort that would probably change the jury's

verdict if a new trial were granted." State v. Carter, 85 N.J. 300, 314 (1981).

All three prongs of the Carter test must be satisfied to grant a new trial. Ibid.

Under the first prong of the Carter test, evidence is material if it "would

'have some bearing on the claims being advanced.'" Ways, 180 N.J. at 188

(quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1997)). To that

end, "[c]learly, evidence that supports a defense, such as alibi, third -party guilt,

or a general denial of guilt would be material." Ibid.

In order to determine "whether evidence is 'merely cumulative, or

impeaching, or contradictory,' and, therefore, insufficient to justify the grant of

a new trial requires an evaluation of the probable impact such evidence would

A-0716-17T3 53 have on a jury verdict." Id. at 188-89. "Therefore, the focus properly turns to

prong three of the Carter test, whether the evidence is 'of the sort that would

probably change the jury's verdict if a new trial were granted.'" Id. at 189

(quoting Carter, 85 N.J. at 314).

Thus, it is clear that the first and third prongs of the Carter test are

"inextricably intertwined." Nash, 212 N.J. at 549. Indeed, the "analysis of

newly discovered evidence essentially merges the first and third prongs of the

Carter test." State v. Behn, 375 N.J. Super. 409, 432 (App. Div. 2005). Under

that rubric, "[t]he characterization of evidence as 'merely cumulative, or

impeaching, or contradictory' is a judgment that such evidence is not of great

significance and would probably not alter the outcome of a verdict." Ways, 180

N.J. at 189. By contrast, evidence "that would have the probable effect of raising

a reasonable doubt as to the defendant's guilt would not be considered merely

cumulative, impeaching, or contradictory." Ibid. (emphasis added).

In short, the "power of the newly discovered evidence to alter the verdict

is the central issue, not the label to be placed on that evidence." Id. at 191-92.

Appellate courts "must engage in a thorough, fact-sensitive analysis to

determine whether the newly discovered evidence would probably make a

difference to the jury." Id. at 191.

A-0716-17T3 54 The second prong of the Carter test "recognizes that judgments must be

accorded a degree of finality . . . ." Id. at 192. That prong therefore requires

that the "defense . . . 'act with reasonable dispatch in searching for evidence

before the start of the trial.'" Nash, 212 N.J. at 550 (quoting Ways, 180 N.J. at

192). Under that prong, the evidence must not have been discoverable prior to

trial through the exercise of "reasonable diligence" in the context of the specific

circumstances of each case. Reasonable diligence does not require "totally

exhaustive or superhuman effort." Behn, 375 N.J. Super. at 428.

That said, a defendant "is not entitled to benefit from a strategic decision

to withhold evidence." Ways, 180 N.J. at 192. A defendant gains no strategic

advantage, however, if her or his attorney "fails to discover or overlooks

exculpatory evidence." Ibid. For that reason, the New Jersey Supreme Court

has recognized the "important caveat" that evidence "'clearly capable of altering

the outcome of a verdict that could have been discovered by reasonable diligence

at the time of trial would almost certainly point to ineffective assistance of

counsel.'" Nash, 212 N.J. at 550 (quoting Ways, 180 N.J. at 192).

With respect to newly discovered scientific evidence, Rule 3:20-2

"presents a viable means by which a defendant can seek a new trial if he can

now show that recently improved scientific methodology, not available at the

A-0716-17T3 55 time of trial, would probably have changed the result." State v. Halsey, 329 N.J.

Super. 553, 559 (App. Div. 2000). Courts recognize that "[s]cience moves

inexorably forward and hypotheses or methodologies once considered

sacrosanct are modified or discarded." Behn, 375 N.J. Super. at 429. Thus, the

"judicial system, with its search for the closest approximation to the 'truth,' must

accommodate this ever-changing scientific landscape." Ibid.

When, as here, a defendant presents scientific evidence in support of a

motion for a new trial, the court must decide whether, at the time of trial, the

science supporting the defense argument was established. For instance, in State

v. Peterson, 364 N.J. Super. 387, 398 (App. Div. 2003), the court held that DNA

testing qualified as newly discovered evidence even though "early forms of

DNA testing were in use at the time of defendant's trial" because it had "become

more common and more reliable in the intervening fourteen years." Of course,

there can be "no doubt" that scientific evidence "not developed until after

defendant's trial" constitutes newly discovered evidence because "no amount of

reasonable diligence could have uncovered" evidence that "did not exist

previously." Behn, 375 N.J. Super. at 429.

A-0716-17T3 56 III.

(The Newly Discovered Evidence)

Defendants argue that the newly discovered forensic evidence, as

presented by Dr. Baden, Haag, and in Boskey's report contradicts and severely

undermines Rand's account of the shootings. They further contend Rand

recanted her trial testimony, as reflected in two certifications from deceased

witnesses. They also point to several other non-forensic proofs, including the

seven identifications of Washington's voice on the 9-1-1 recording, which they

contend are strongly exonerative.

A. Forensic Evidence

Defendants argue the forensic testimony was not discoverable with

reasonable diligence prior to trial and is material because it probably would

change the jury’s verdict. The PCR court agreed with defendants that Haag's

report and testimony—which showed that the bullets that killed Wilson

ricocheted off the ground and therefore that she was lying down when she was

shot—could not have been discovered prior to trial through reasonable

diligence. We concur.

Defendants' trial was in 1996, the same year Haag first identified the bow-

effect phenomenon, which was not widely disseminated throughout the

A-0716-17T3 57 scientific community until 2002. Very few laboratories were equipped with a

scanning electron microscope at the time of trial.

We disagree, however, with the trial court's separate conclusion that

Haag's findings were not material and probably would not change the jury's

verdict if a new trial were granted. The court believed Haag's new evidence

would not contradict Rand's account because she never literally testified that

Wilson was standing when she was shot. Therefore the court did not deem the

scientific proof material under Carter. The court's decision on this aspect of the

Carter test is reviewed de novo because it requires an application of the law to

the facts of the case. Behn, 375 N.J. Super. at 433.

The evidence presented by Haag was "clearly not cumulative since no

comparable evidence was offered at trial." Behn, 375 N.J. Super. at 431. The

evidence would impeach Rand's testimony, so the question becomes whether it

would probably change the jury's verdict if the court granted a new trial. Nash,

212 N.J. at 549; Ways, 180 N.J. at 188-89. We believe it would.

Although Rand never explicitly testified that Wilson was standing when

she was shot, the gist of her testimony was that both victims were standing, as

confirmed by the entirety of the record.

Specifically, the prosecutor asked Rand to describe what she witnessed,

A-0716-17T3 58 and she answered that she saw Turner and Wilson "when they dropped." When

asked who was shot first, the transcript indicates that Rand said she saw "them

drop first," but the court immediately clarified that Rand said she saw "him"

drop first, referring to Turner. Thus, Rand's trial testimony plainly reflects her

contention that both victims were standing when they were shot and then

dropped to the ground. 17

Rand also testified that "the whole shooting" lasted a couple of seconds,

which was consistent with her police interview, during which she told Glemser

that defendants shot the victims "a couple seconds" after they ran up to them and

the "whole thing" lasted only a "couple of seconds." She explained to Glemser

that defendants "came from around the corner, like out of nowhere[,]" ran up to

Wilson and Turner, shot them in the head, and then kept on running. Rand stated

she was certain that defendants were running the whole time, and that it was not

"an on-going thing." She agreed that defendants "ran up on 'em, shot 'em, and

then kept on runnin." Indeed, Rand said that she would not have witnessed the

17 The only portion of Rand's testimony that arguably could be read to suggest that Turner and Wilson were on the ground when they were shot was when she said that "[t]hey lay right next to each other[.]" We interpret that remark to mean that the victims' bodies ended up on the ground next to each other, a s shown in the crime scene photographs, not that they were lying down before they were shot. A-0716-17T3 59 shootings if the incident lasted any longer because she would have fled the

scene.

Notably, Glemser understood Rand's account to be that the victims were

shot while they were standing. He wrote in his supplemental report that "Rand

state[d] that this entire situation only took a couple of seconds and immedi ately

after both victims were shot in the head, they fell to the ground as both suspects

identified as Kevin Baker and Sean Washington continue[d] running away from

the victims." (Emphasis added).

At trial, the trial judge seemingly understood Rand's testimony to be that

defendants shot the victims while they were standing. That is reflected in his

reason for not instructing the jury on the lesser-included offenses of aggravated

manslaughter and manslaughter. He stated, "[T]he only evidence as to what

allegedly occurred is the testimony of [Rand] who indicated she saw the

defendants basically walk up behind the victims, point a gun and shoot the two

Rand's account of the killings was, in essence, a "run-by shooting." By

contrast, the new forensic evidence shows it likely was an execution-style

killing, in which at least one victim was forced to lie on the ground before being

shot. Rand's account realistically would not allow time for defendants to

A-0716-17T3 60 approach Turner and Wilson, order them to lay on the ground, and then shoot

them.

When examining the impact of newly discovered evidence, it must be

"placed in context with the trial evidence . . . ." Ways, 180 N.J. at 195. An

appellate court therefore must consider the State's proofs at trial. See ibid.

(characterizing State's proofs as "far from overwhelming"). Here, there is a

patent weakness in the State's case against defendants, which another panel of

our court previously characterized as "not overwhelming."

Rand's trial testimony was the only eyewitness evidence linking

defendants to the murders. At best her account was inconsistent and at times

incoherent.

For instance, Rand stated at the time of the murders "it was dark, but it

was light." She first testified that she saw one defendant carrying a gun, but

could not recall which one. She later testified that she only saw Baker with a

gun, not Washington. She then testified that she only saw Washington with a

gun, not Baker. In her police interview, however, when asked if she saw anyone

holding a gun, Rand said she paid no attention. After being directed to read that

portion of her statement while she was on the stand, she testified that she "just

had to be paying attention[,]" before admitting that she "wasn't paying no

A-0716-17T3 61 attention." She later said that was "the answer at the time[,]" as if the facts of

what she witnessed could change. Rand was also untruthful about her

willingness to testify.

At trial, Rand could not remember who was shot first or which defendant

shot each victim until she read those critical facts from portions of her police

interview.18 Even after reading her statement, she initially could not recall if

she saw Baker shoot Turner.

As we previously noted, Rand's answers about how long she knew Baker

varied from not being able to recall because she "kept forgetting" to "not that

long" to "some years," to "several years" to "two years" to "five or six" years.

Rand initially testified that Moore was behind her at the time of the

shootings, but in her police interview she said he was in front of her, and after

being alerted to the discrepancy, said that he was in "[f]ront of me, behind me[,]"

before changing her testimony to reflect that Moore was in front of her, and then

changing it again to say that she did not remember.

It must be underscored that Rand was a known drug addict who smoked

crack cocaine every two to three hours, which she characterized as "not that

18 Rand was even uncertain about whether the transcript she read was of her police interview. A-0716-17T3 62 often[.]" She was admittedly high at the time of the murders. She was

approximately ninety feet away when the shooting occurred and it was dark

outside. The entire incident took only a "couple of seconds." She also saw a

gun, or multiple guns, depending on whether one credits her police interview or

trial testimony.

These perception factors all can influence an eyewitness identification. In

State v. Henderson, 208 N.J. 208, 261-66 (2011), the Court recognized each of

them – intoxication, distance, lighting, duration, and the distraction of a visible

weapon – as "estimator variables" that can impede the accuracy and reliability

of eyewitness identifications.

Dr. Baden's testimony further supported Haag's conclusion that Wilson

was laying on the ground when she was shot. He consistently testified that,

based on the trajectory of the two bullets, Wilson was shot twice while lying on

the ground with her arm next to her head. After receiving Haag's report, Dr.

Baden filed a supplemental report, opining that the bullets ricocheted off the

ground before entering Wilson's arm. He asserted that Rand's testimony was

"totally inconsistent with the way [Wilson] was shot and the way she was

found."

The court found that Dr. Baden essentially was offering a new opinion

A-0716-17T3 63 based on old evidence. The court, however, did not distinguish adequately

between the various aspects of Dr. Baden's testimony.

For instance, it is not clear that Dr. Baden's conclusion that Wilson was

shot twice and that the bullets entered her arm after passing through her skull –

which is the portion of his testimony relevant here–was discoverable prior to

trial with reasonable diligence. At trial, the medical examiner testified that

"[t]here is no way to tell whether this bullet passing through the arm was related

to either of these two [head] wounds or was a third wound." If Dr. Baden's

conclusion was discoverable with reasonable diligence prior to trial, then the

medical examiner also should have discovered it. See Behn, 375 N.J. Super. at

433 ("Having offered these proofs and argued their significance, the State should

not be permitted to now 'walk away' from its evidence and demean its

importance.").

Moreover, the pertinent question is not whether the evidence was

theoretically discoverable at the time of trial, but whether a reasonably diligent

attorney would have discovered it prior to trial. Peterson, 364 N.J. Super. at

398. Kahn and Gumminger were experienced criminal defense attorneys.

Notably, Kahn in particular testified that he had not used forensic experts at the

time of defendants' trial, that he did not consider retaining a forensic expert, and

A-0716-17T3 64 that a reasonably diligent attorney would not have done so at that time, all of

which suggest that a reasonably diligent attorney would not have retained a

forensic expert at that time.

The trial court found that Gumminger and Kahn generally were not

credible, but made no specific findings with respect to their testimony about

retaining a forensic expert. 19 If that testimony was credible, then a reasonably

diligent attorney would not have discovered the forensic evidence prior to trial.

If, on the other hand, the attorneys' testimony was not credible, it still must

be remembered that evidence "'clearly capable of altering the outcome of a

verdict that could have been discovered by reasonable diligence at the time of

trial would almost certainly point to ineffective assistance of counsel.'" Nash,

212 N.J. at 550 (quoting Ways, 180 N.J. at 192). "It hardly bears mentioning

that '[w]e would not require a person who is probably innocent to languish in

prison because the exculpatory evidence was discoverable and overlooked by a

19 The court found that Kahn was not credible because he was "trying to help a former client" and the new attorneys "convinced" him that he should have done more at trial. We note, however, that it was apparent at trial and sentencing that Kahn believed that Baker's conviction was unjust. The court gave no reasons for its finding that Gumminger was not credible, and specifically found that he was credible about one thing, that he and Baker discussed the problems with calling Redden as a witness given her lack of credibility. See Ways, 180 N.J. at 196 ("We find it somewhat curious that the PCR court found [the witness] incredible in all respects but this one."). A-0716-17T3 65 less than reasonably diligent attorney.'" Ibid. (alteration in original) (quoting

Ways, 180 N.J. at 192).

Haag also testified that only one gun likely was used in the murders. The

trial court, however, found that defendants "have not proved a second weapon

was not involved" to a degree of "practical certainty" and it therefore could not

"exclude the existence of two weapons being used, by two shooter[s]." The

court was correct that Haag’s testimony did not "prove" only one gun was used.

But that is not the proper test to apply to newly discovered evidence. The proper

test is whether the new evidence "probably" would have changed the outcome

of the trial. Behn, 375 N.J. at 432.

Here, the testimony that only one gun was used would have sharply

contradicted Rand's account of events. Although Haag could not completely

rule out the possibility that a second gun was used, it was very unlikely. 20 Even

Deady agreed that Haag's testimony was the most likely explanation, although

he recognized that it was not certain or provable because the bullet that killed

Turner and the gun were never recovered. The forensic likelihood that only one

20 Rand's testimony that the shootings lasted a couple of seconds also undercuts the State's theory that one of the defendants may have fired a revolver, because it left no time for the shooter to manually remove the three spent rimless casings from the revolver. A-0716-17T3 66 gun was used in the murders, in combination with the evidence showing that

Wilson was laying on the ground when she was murdered, is yet another point

that would undercut Rand's shaky testimony.

The forensic evidence contradicting Rand’s description of the manner of

shooting would materially strengthen a defense argument that her testimony

should be disbelieved in its entirety. See State v. Young, 448 N.J. Super. 206,

228 (App. Div. 2017) (finding a "false in one, false in all" inference was

justified, in light of "conflicting evidence" about the defendant-witness's

statements, and indicia they were not "'[i]nadvertent misstatements or

immaterial falsehoods'" (quoting State v. D'Ippolito, 22 N.J. 318, 324 (1956)).

Lastly, in considering the significance of this new and essentially

unrefuted forensic evidence, we also bear in mind that the jury acquitted both

defendants of the unlawful possession of a weapon charges. Although

inconsistent verdicts are generally tolerable, the jury’s not-guilty findings on

those particular weapons counts provide yet another reason to believe the newly

developed scientific proof could have tipped the balance in favor of the defense

on the murder counts.

A-0716-17T3 67 B. Proof of Washington's Identity As the 9-1-1 Caller

We find it appropriate to consider the 9-1-1 audio evidence, which only

emerged before the trial court's most recent evidentiary proceedings. The

recording had not been considered on direct appeal or in any of defendants'

previous collateral proceedings.

The audio evidence was not discovered by trial counsel. Washington

consistently maintained that he discovered the bodies and called 9-1-1, which

he told his attorney Kahn prior to trial. Kahn, however, did not request a copy

of the 9-1-1 tape and contends he was unaware of its existence.

The trial court rejected Washington's claim for relief because it believed

that the decision not to play the tape for the jury was "likely . . . part of a strategic

trial decision." Strategic decisions made after less than complete investigations,

however, are not entitled to deference. State v. Savage, 120 N.J. 594, 617-18

(1990). Without knowing about and obtaining the tape to ascertain if

Washington made the 9-1-1 call, Kahn was in no position to make a strategic

decision whether to present the tape to the jury as part of an alibi defense on

Washington's behalf.

We are persuaded that the 9-1-1 audio proof provides support for relief

under Rule 3:20. The evidence clearly satisfies the first and third prongs of

A-0716-17T3 68 Carter. Carter, 85 N.J. at 314. Moreover, we do not construe the Supreme

Court's application of the second prong of the Carter test for newly discovered

evidence to be so rigid so as to preclude relief under Rule 3:20 under the

circumstances presented here. As the Court noted in Nash, "'[w]e would not

require a person who is probably innocent to languish in prison because the

exculpatory evidence was discoverable and overlooked by a less than reasonably

diligent attorney.'" Nash, 212 N.J. at 550 (alteration in original) (quoting Ways,

180 N.J. at 192). Hence, whether or not trial counsel were ineffective by not

obtaining and presenting the 9-1-1 audio, that evidence, along with the forensic

proofs, must be fairly considered in determining whether a new trial is

warranted.21

It is clear from the audio recording that the 9-1-1 caller was

distraught. That lends support to the notion that the caller was not the person

who just shot Turner and Wilson. Despite seven witnesses who testified at the

PCR hearing that the voice on the 9-1-1 tape was Washington's, the court found

that "there was no credible evidence . . . Washington made the [9-1-1] call from

21 We further note that a motion for a new trial under Rule 3:20 is not governed by the procedural limitations expressed in Rule 3:22. Rule 3:20-1 provides an independent avenue for relief where "it clearly and convincingly appears that there was a manifest denial of justice under the law." A-0716-17T3 69 a payphone." Although the court found a few of the witnesses who identified

Washington's voice were credible, including Washington's mother and sister, it

rejected their identifications because those persons were biased and "motivated

to assist" him.

The Supreme Court has cautioned about negative credibility findings that

are based "solely on account of [a] familial relationship . . . ." Ways, 180 N.J.

at 196. It is not at all apparent that anyone except Washington's friends and

family could reliably identify his voice. Whether Washington actually is the

person who called 9-1-1 is a question for a new jury to make after it

"determine[s] each witness's knowledge, bias, consistency, and overall

credibility." Nash, 212 N.J. at 553.

The trial court also found that if "Washington placed the call from the

payphone, it would have put [him] at the scene of the crime." That is true, but

it deserves less weight than the court placed on it. Washington has always

asserted that he discovered the bodies and therefore admits he was at the scene,

but just not at the time of the murders. He never tried to place himself away

from the crime scene. If, in fact, Washington made the initial 9-1-1 call, that

evidence had the potential to sway the jury's verdict, particularly after taking

into account the weakness of the State's case.

A-0716-17T3 70 We recognize that even if the jury believed Washington called 9-1-1, the

jury could still determine that he shot Turner and Wilson. But "an 'outcome

determinative standard' impose[s] too heavy a burden" on a defendant. State v.

L.A., 433 N.J. Super. 1, 14 (App. Div. 2013) (quoting Strickland, 466 U.S. 668,

694 (1984)). A defendant need not show that it is "more likely than not" that

she or he is innocent. Instead, a defendant must show a reasonable probability

that is sufficient to undermine confidence in the outcome of the trial. Ibid.

Considering the 9-1-1 evidence in conjunction with the forensic proof that

undercuts the account of the sole alleged eyewitness, defendants have

established such a reasonable probability here.

C. The Other Non-Forensic Proofs

Aside from this heavily corroborated evidence identifying Washington as

the 9-1-1 caller, we rely on none of the other non-forensic proofs defendants

have presented. As to those particular proofs, we generally defer to the trial

court's assessment that they either lack sufficient probative value to warrant a

new trial, or could reasonably have been developed and presented to the court

sooner, or both.

A-0716-17T3 71 IV.

(Impact of the Additional Proofs)

Viewing the totality of the evidence, the "new" evidence – particularly the

forensic evidence, in context with the State's weak trial proofs that hinged so

vitally upon Rand's account – was material and probably would have changed

the jury's verdict.

Rand's identification of defendants as the shooters was the singular "focal

issue of the trial and must be considered material." Behn, 375 N.J. Super. at 431

(quoting Henries, 306 N.J. Super. at 531). As we have elaborated, the forensic

evidence that Wilson was lying on the ground when she was shot, if it had been

available at the time of defendants' trial, would likely have been admissible and

would have undercut Rand's account of events. The same is true for Haag's and

Dr. Baden's testimony that only one gun was used in the murders. Because

Rand was the only witness linking the defendants to the murders, and given the

extensive weakness of her testimony, the new evidence would probably have

changed the outcome of the trial.

The trial court relied analytically on the fact that the "jury found [Rand's]

testimony to be credible." Case law, however, has disapproved of such undue

reliance. See L.A., 433 N.J. Super. at 18 ("The court erred by relying on the

A-0716-17T3 72 jury's apparent finding that [the witness] was credible, because it voted to

convict."). Applying the proper legal test, we are persuaded that a new trial is

warranted.

At such a trial the strong forensic proofs, and the 9-1-1 call evidence, will

be presumptively admissible, subject to the State’s right of timely objection. 22

To be sure, courts that set aside verdicts "do not decide where the truth

ultimately lies, because that function falls within the exclusive purview of the

jury after reviewing all the evidence." Ways, 180 N.J. at 197. In this case, that

will be the newly discovered forensic evidence and the proofs concerning

Washington's voice on the 9-1-1 recording. A jury is the proper entity to

"determine each witness's knowledge, bias, consistency, and overall credibility,"

and render a verdict. Nash, 212 N.J. at 553. Given the time that has passed

since the trial, there will be "difficulties" associated with a retrial at this late

date, "[b]ut the passage of time is an insufficient reason not to correct an

injustice." Ways, 180 N.J. at 197. Because there is "a probability—not a

22 Hence, we do not reach the more expansive question of whether inadmissible evidence could justify granting defendants a new trial. For example, we do not rely in our decision upon the arguably inadmissible social science experiment performed by the defense, which tested what a group of non-jurors thought about what initials for a shooter were uttered by Rand on the audio of her police interview.

A-0716-17T3 73 certainty—that a new jury would find [defendants] not guilty," they are entitled

to a new trial. Ibid.

Based on the newly discovered evidence, we therefore reverse the trial

court's denial of defendants' motions for a new trial, and remand to enable the

State, if it so chooses, to retry the case.

(Ineffective Counsel Claims)

As a separate theory for relief, defendants argue that the court erred by

holding that their ineffective assistance of counsel claims were time-barred. We

briefly discuss this procedural issue for sake of completeness.

The trial court found defendants' ineffective assistance of counsel claims

"ha[d] been raised before in each of [their] prior [PCR] petitions," It then

determined that their claims were time-barred under Rule 3:22-12(a)(2).

As relevant here, under Rule 3:22-4(b), a second or subsequent PCR

petition "shall be dismissed" unless:

(1) it is timely under Rule 3:22-12(a)(2); and

(2) it alleges on its face . . .

(B) that the factual predicate for the relief sought could

A-0716-17T3 74 not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted . . . .

[R. 3:22-4(b).]

Rule 3:22-12(a)(2), in pertinent part, provides that notwithstanding any

other provision of the Rule, no second or subsequent PCR petition shall be filed

more than one year after the latest of:

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence . . . .

It further provides that "[t]hese time limitations shall not be relaxed, except as

provided herein." R. 3:22-12(b).

Defendants argue their ineffective assistance of counsel allegations were

timely because they filed their PCR petitions within one year of discovering the

factual predicates for their claims. The exoneree amici similarly argue that Rule

3:22-12(a)(2) allows a defendant to bring an ineffective assistance of counsel

claim within a year of the discovery of the factual predicate of his or her claim

no matter how many years have passed since the defendant's trial. They further

argue the "reasonable diligence" requirement of Rule 3:22-12(a)(2) must be

viewed from the perspective of the defendant, not his or her counsel.

A-0716-17T3 75 Baker identifies the following factual predicates that he "discovered" in

the year before he filed his PCR petition: (1) a video recording of KYW-3

Philadelphia news coverage from the night of the murders; (2) a certification

from Gumminger stating that he did not review his file prior to testifying in

Baker's 1999 PCR proceeding; (3) Miron's file from when he was Baker's PCR

counsel; and (4) Haag's and Dr. Baden's forensic reports.

It is not clear what the connection is, if any, between Baker's receipt of

Miron's file and his ineffectiveness claim. The information that Baker gleaned

from Miron's file that served as a factual predicate to his PCR petition is

unstated. Even if the evidence in Miron's file showed Baker's trial counsel was

ineffective, then it necessarily also showed that the same evidence could have

been discovered earlier than 2012 through the exercise of reasonable dilige nce.

All of these identified factual predicates were discoverable by Baker

earlier through the exercise of reasonable diligence. Baker knew, or should have

known, that Gumminger did not review his file and testified solely based on his

memory in 1999 because Gumminger admitted it during the evidentiary hearing.

The television programs Redden claimed she was watching on the day of the

murders had been in dispute since before defendants' trial, so they were aware

that the television programming was a key issue. Indeed, in Baker's prior PCR

A-0716-17T3 76 petition he argued that his trial counsel was ineffective for failing to call Redden

as an alibi witness and have her testify about watching news coverage of the

murders, but the court rejected that argument. We do not disturb that finding.

Washington, meanwhile, argues that his petition was timely because he

filed it within one year of the State producing discovery to Baker, including the

audio recordings of the 9-1-1 call he allegedly made. The State counters that

the 9-1-1 evidence could have been discovered earlier through the exercise of

reasonable diligence. R. 3:22-12(a)(2)(B). The State's position comports with

our ruling in State v. Jackson, 454 N.J. Super. 284, 292-94 (App. Div. 2018).

Both defendants argue that the failure to relax the time bar of Rule 3:22-

12(a)(2) to permit PCR relief in the exceptional context of this case would result

in a "fundamental injustice." In Jackson, 454 N.J. Super. at 292-94, this court

held that after the PCR rule amendments in 2009 and 2010 the fundamental

injustice exception did not apply to second or subsequent PCR petitions and that

the time limits in Rule 3:22-12(a)(2) could not be relaxed.

We need not address here whether, as defendants and their amici advocate,

the law of our State should enable our courts, in limited and compelling

circumstances, to disregard the time bar as a matter of fundamental fairness or

jurisprudential policy, or whether the PCR rules should be prospectively

A-0716-17T3 77 amended in some fashion. We leave such an assessment to the Supreme Court.

Instead, we assume for sake of discussion the time bar under Rule 3:22-

12(a)(2) pertains and therefore do not address the substantive issues of

ineffectiveness concerning the 9-1-1 audio evidence. In any event, the denial of

defendants' PCR ineffectiveness claims under Rule 3:22 does not preclude relief

to them under the separate pathway of Rule 3:20 for newly discovered evidence,

including the forensic proof and the 9-1-1 identification evidence. See R. 3:20-

2 ("A motion for a new trial based on the ground of newly-discovered evidence

may be made at any time, but if an appeal is pending the court may grant the

motion only on remand of the case."). We therefore rest our analysis and the

grant of a new trial upon Rule 3:20, not Rule 3:22.

VI.

(Brady v. Maryland Issues)

Briefly, we reject defendants' claim the State suppressed material

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). We adopt the

trial court's conclusion that no Brady violations occurred. The court found no

evidence that Glemser coached Rand, and further found that she consistently

stated that "K.B." was one of the shooters. If Rand said "J.D." one time during

her police interview, it seems to have been a mistake, perhaps because she was

A-0716-17T3 78 nervous.

The trial court further rejected defendants' claim that errors in the State's

transcription of Trusty’s police interview obscured the fact that Rand did not tell

Trusty that she witnessed the murders. It similarly rejected defendants'

arguments that purported errors in the transcript of Langston’s police interview

undermined Washington's alibi. These particular findings all have ample

support and we adopt them.

VII.

(Remaining Points)

All remaining points raised on appeal either lack sufficient merit to

warrant discussion, R. 2:11-3(e)(2), or present novel jurisprudential or policy

issues that are more appropriate for the Supreme Court or the Attorney

General,23 or both, to consider.

In reaching our determination today, we are very mindful of the passage

of time and the serious proof difficulties the State faces if it chooses to proceed

with a new trial. That is an unfortunate practical reality. But it cannot overcome

23 In April 2019 the Attorney General's created a Statewide Conviction Review Unit and Statewide Cold Case Network, although the Attorney General has not indicated that these two cases are part of that review initiative. A-0716-17T3 79 the compelling reasons to grant defendants the relief they deserve.

We also recognize the well-respected judge who presided over the trial

and the lengthy PCR proceedings lived with and labored over this case for over

two decades. His insights are surely important. In fact, we have upheld in this

opinion many of the judge's rulings. We appreciate the judge's faithful service

and his long-standing feel for this case. 24 Nevertheless, our independent review

of the record, in light of the newly discovered evidence, compels us to conclude

it would be unjust to allow this verdict to stand.

VIII.

(Conclusion)

Defendants' convictions are consequently vacated for a new jury trial. We

stay our decision, sua sponte, and any release of defendants from custody, for a

period of sixty days to enable the State to seek relief from the Supreme Court if

it so chooses. If such a filing with the Supreme Court occurs during the sixty-

day interval, the stay automatically shall remain in effect unless and until the

Supreme Court otherwise directs.

24 The judge recently passed away. Nothing in this opinion or its outcome detracts from the judge's many years of dedicated and illustrious service to the public and the legal profession. A-0716-17T3 80 Vacated and remanded for retrial.

A-0716-17T3 81