STATE OF NEW JERSEY VS. SHIQUAN D. BELLAMY (11-03-0348, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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 NO. A-2916-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHIQUAN D. BELLAMY,
Defendant-Appellant.
__________________________
Submitted May 19, 2020 – Decided June 5, 2020
Before Judges Fisher, Accurso and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 11-03-0348.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals the denial of his post-conviction relief petition.
Because defendant was not permitted to explore his trial attorney's
acknowledgement of entering into a dating relationship with a witness for the
prosecution – a police detective – no later than nine days after the jury found
defendant guilty, we vacate the order denying post-conviction relief and remand
for an evidentiary hearing.
Defendant, as well as Latonia Bellamy, his cousin, and Darmelia
Lawrence, were indicted and charged with the first-degree murders of Nia Haqq
and Michael Muchioki, as well as other serious offenses. The relevant facts and
circumstances that led to defendant's conviction are recounted in our earlier
opinion on defendant's direct appeal, State v. Bellamy, No. A-3369-13 (App.
Div. Apr. 18, 2017), certif. denied, 231 N.J. 115 (2017), and need not be
repeated here in any great detail.
Briefly, the jury heard evidence that defendant, his cousin, and Lawrence
engaged in a carjacking and robbery at about 2:30 a.m., on April 4, 2010. One
witness, Amanda Muchioki – the sister of Michael Muchioki – heard a car pull
up outside the Jersey City home she shared with her brother and his fiancé, Nia
Haqq. Amanda heard a male voice say, "get out of the car," followed by "a loud
bang." When she looked out the window she saw two people, whom she could
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not identify, standing by the car. She ran to another room to call police and
heard "three more shots." Another resident on the same street heard the first
shot, ran to a window, and from there watched three individuals – one male and
two female African-Americans – get into a black SUV. This witness was able
to describe the male as wearing a "fitted hat" and a "camouflage jacket." When
she heard more shots, she called police. She watched as the three individuals
got out of the SUV and ran away.
The jury also heard from Wahjira Rush, who testified to being in
defendant's Jersey City apartment that night. She testified that she observed
defendant retrieve a shotgun and handgun from a closet, as well as an "army
camouflage jacket." She also testified, among other things, that the three co-
defendants left the apartment that night, and defendant arrived "out of breath"
at approximately 3:00 a.m.; defendant had in his possession the shotgun, some
credit cards, identification cards, and a ring.
Lawrence testified pursuant to a plea agreement she reached with the
State. She testified that on the night in question defendant and his cousin spoke
about wanting to commit robberies and they eventually departed in the early
morning hours. She identified defendant in court, and testified that on the night
of the murders defendant wore a camouflaged army fatigue jacket, which
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concealed a shotgun in his sleeve; defendant's cousin was in possession of a
nine-millimeter handgun in her coat pocket. Lawrence went along, unarmed.
When they encountered the victims' black SUV, defendant and his cousin
stepped out and demanded the car keys. Lawrence described in detail how the
victims were ordered onto the ground, and how defendant shot Michael
Muchioki first. This was followed by three more shots; this witness claimed not
to have seen which person fired those shots. Following the murders, defendant
told his cousin and Lawrence to get in the SUV, but they quickly found it would
not start and took off on foot.
The jury also heard from police officers and forensic experts which
provided evidence that tied defendant to these crimes. During their
investigation, police uncovered a sawed-off shotgun in defendant's apartment.
Lawrence identified that weapon as the shotgun used by defendant to kill
Muchioki. The nine-millimeter handgun was never recovered. DNA evidence
removed from the shotgun's muzzle was positively linked to the projectiles that
killed Muchioki.
Of relevance to the issues in this appeal, one of the State's police witnesses
was Detective Erin Burns. She provided evidence regarding three nine
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millimeter shell casings found at the crime scene. She also testified about
finding two fingerprints belonging to Lawrence on the vehicle.
Defendant was convicted of two counts of first-degree murder, four counts
of first-degree felony murder, two counts of first-degree carjacking, two counts
of first-degree robbery, four counts of second-degree possession of a weapon
for an unlawful purpose, third-degree possession of a sawed-off shotgun,
second-degree unlawful possession of a handgun, and second-degree conspiracy
to commit robbery. Following appropriate mergers, defendant was sentenced in
January 2014 to serve consecutive life terms on the two first -degree murder
convictions and concurrent terms on other offenses. As noted, we affirmed his
convictions and sentence on defendant's direct appeal, and the Supreme Court
denied certification.
Defendant filed a PCR petition in November 2017. Through appointed
counsel, and by way of his own pro se submission, defendant presented
numerous arguments in support of his claim that trial counsel was ineffective.
The judge heard argument but did not conduct an evidentiary hearing and
ultimately denied relief by way of a written opinion.
Defendant appeals, arguing through appointed counsel that the PCR judge
erred in denying defendant an evidentiary hearing regarding:
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I. THE DETAILS OF HOW AND WHEN HE BEGAN
HIS ROMANTIC RELATIONSHIP WITH
DETECTIVE ERIN BURNS AND HOW THAT
RELATIONSHIP IMPACTED [HIS] DEFENSE.
II. TRIAL COUNSEL'S FAILURE TO SUBPOENA
COURTNEY BROOKS AS A WITNESS IN THE
SECOND TRIAL, AND IN FAILING TO CONSULT
A HANDWRITING EXPERT, AS BOTH BROOKS
AND THE EXPERT WOULD HAVE RAISED
REASONABLE DOUBT THAT [DEFENDANT]
WROTE THE INCRIMINATING LETTER WHICH
WAS INTRODUCED AT TRIAL.
In his supplemental pro se brief, defendant presents two points, which we
renumber:
III. THE PCR COURT ERRED IN [ITS] DECISION
TO DENY [DEFENDANT] RELIEF WHERE THE
COURT FAILED TO DISCUSS ON THE MERITS
[DEFENDANT'S] ISSUE WHERE HE . . .
PRESENTED [TO] THE COURT . . . A PRIMA FACIE
SHOWING OF PROOF THAT HE HAS BEEN
DEPRIVED OF DUE PROCESS OF LAW BY THE
VIOLATION OF THE REQUIREMENT OF
AUTHENTICATION OR IDENTIFICATION (CHAIN
OF CUSTODY) [1] RULE IN VIOLATION OF
[DEFENDANT'S] RIGHT TO FAIR TRIAL IN
VIOLATION OF THE UNITED STATES
CONSTITUTION SIXTH AND FOURTEENTH
AMENDMENT AND ART. I, PARA. 1, 9[,] 10 AND
21 OF THE NEW JERSEY CONSTITUTION . . .
WHERE THE TRIAL COURT OVERRULED
OBJECTION TO EVIDENCE ADMISSION.
1
Citing N.J.R.E. 901, R. 3:22-4, and State v. Nash, 212 N.J. 518 (2013).
A-2916-18T4
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IV. THE PCR COURT ERRED BY NOT GRANTING
[DEFENDANT'S] PETITION OR, IN THE
ALTERNAT[IV]E, ORDERING AN EVIDENTIARY
HEARING ON [DEFENDANT'S] CLAIMS OF
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
Defendant included, within Point IV, thirteen subpoints in which he argues
attorney ineffectiveness. In the first of these subpoints, defendant contends he
was denied the effectiveness of appellate counsel in his direct appeal in the
following way:
A. THE APPELLATE COURT FOR PCR ERRED IN
DENYING [DEFENDANT'S] INEFFECTIVE ASSIS-
TANCE OF COUNSEL CLAIM RAISED ON
SENTENCING COUNSEL . . . IN AN ABUSE OF
DISCRETION WHEN THEY NEGATED TO 'MAKE
A DECISION ON SENTENCING COUNSEL'S
INADEQUATE REPRESENTATION' ON THE
CONFLICT OF INTEREST ISSUE BETWEEN
TRIAL COUNSEL MICHAEL P. RUBAS AND
STATE[']S WITNESS/BALLISTICS EXPERT DET.
ERIN BURNS BUT INSTEAD DIRECTED THEIR
DECISION ON TRIAL COUNSEL'S PERFORM-
ANCE AT TRIAL INSTREAD OF SENTENCING
COUNSEL NOT DOING HIS DUE DILIGENCE
DURING SENTENCING AS DISCUSSED IN
[DEFENDANT'S] ISSUE AS WELL AS THE DIRECT
APPEAL COURT'S IN THEIR DECISION TO
LEAVE THE ISSUE BY WAY OF PCR . . . .
In the next eleven subpoints, defendant argues the PCR judge erred in denying
his ineffectiveness claims and in rejecting his arguments that he was deprived
of the guarantees of the Sixth and Fourteenth Amendments of the federal
A-2916-18T4
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constitution and Article I, paragraphs 1, 9, 10, and 21 of the state constitution,
regarding his trial counsel's failure to:
B. . . . SEEK OWN HANDWRITING ANALYSIS
EXPERT ON [DEFENDANT'S] BEHALF WHERE
TRIAL COUNSEL RELIED ON STATE TO
PRODUCE THEIR EXPERT. . . .
C. . . . SUBPOENA WITNESS COURTNEY BROOKS
TO GIVE TESTIMONY BUT INSTEAD REMOVED
HER FROM [DEFENDANT'S] WITNESS LIST
WITHOUT ACKNOWLEDGEMENT AND/OR
APPROVAL OF [DEFENDANT] AND BY NOT
FIRST MAKING A SOUND DECISION TO
INVESTIGATE THE WITNESS . . . .
D. . . . OFFER THE EXEMPLARS OF
[DEFENDANT'S] KNOWN WRITING SAMPLES TO
JURY ON A CRITICAL PIECE OF EVIDENCE THE
STATE USED AGAINST [DEFENDANT.]
E. . . . OBJECT TO THE ADMISSION OF HEARSAY
AT TRIAL USED TO BOLSTER A TESTIFYING
WITNESS OF THE STATE'S TESTIMONY . . . .
F. . . . OBJECT TO THE ADMISSIBILITY OF
DAMAGING LETTER THE STATE ALLEGED WAS
AUTHORED BY [DEFENDANT.]
G. . . . SEEK OWN DNA EXPERT WHEN DNA
APPEARED THAT WAS NEVER DOCUMENTED
OR PART OF DISCOVERY AS COUNSEL RELIED
ON THE STATE'S EXPERT TO PRODUCE THE
EXPERT OF THEIR OWN AND . . . TO FOLLOW-UP
ON CHAIN OF CUSTODY OBJECTION AT
SIDEBAR . . . .
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H. . . . SHOW PROSEC[U]TOR NEGLIGENCE ON
INVESTIGATING POTENTIAL THIRD PARTY
GUILT SUSPECTS AND . . . TO DISCLOSE HOW
THE STATE ELIMINATED THEM AS POTENTIAL
SUSPECTS AND NOT CONDUCTING THE SAME
INVESTIGATION ON [DEFENDANT.]
I. . . . OBJECT TO HIGHLY PREJUDICIAL
REMARKS MADE BY THE STATE DURING
CLOSING ARGUMENTS. . . .
J. . . . RETRIEVE FULL COMPLETE COPY OF
DISCOVERY WHICH VIOLATED [DEFENDANT'S]
RIGHT TO KNOW THE STATE'S CASE AGAINST
HIM PURSUANT TO R. 3:13-3. . . .
K. . . . SUBPOENA EYEWITNESS LEMONICA
HARRIS BUT INSTEAD REMOVED HER FROM
[DEFENDANT'S] WITNESS LIST. . . .
L. . . . USE FIRST TRIAL TRANSCRIPTS OF
STATE'S WITNESS DETECTIVE ERIN BURNS TO
SHOW INCONSISTENCIES BETWEEN TESTI-
MONY GIVEN AT BOTH TRIAL[S.]
And in Point IV's last subpoint, defendant argues the PCR judge erred and
abused his discretion by rejecting defendant's cumulative error argument that
was based on trial counsel's
M. . . . INADEQUATE ERRORS MADE DURING
PRE-TRIAL AS WELL AS DURING TRIAL WHICH
VIOLATED [DEFENDANT'S] RIGHT TO A FAIR
TRIAL IN VIOLATION OF THE UNITED STATES
CONSTITUTION SIXTH AND FOURTEENTH
AMENDMENT AND ART. I, PARA. 1, 9, 10 AND 21
OF THE NEW JERSEY CONSTITUTION.
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We agree with the argument presented in both PCR counsel's brief and
defendant's pro se brief, as we more fully discuss in Section I below, that the
judge erred by failing to conduct an evidentiary hearing about trial counsel's
involvement with Detective Burns. We reject the arguments concerning the
inculpatory letter purportedly written by defendant to Brooks for reasons briefly
summarized in Section II below. We find insufficient merit in defendants' other
arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).
I
Our reasons for requiring an evidentiary hearing to explore the
relationship between trial counsel and Detective Burns may be briefly stated.
That such a relationship came into existence is not in question; when it
commenced is not entirely clear. Trial counsel acknowledged in a January 2014
letter that he began dating Detective Burns on September 28, 2013, nine days
after the guilty verdict. The facts about that relationship need to be explored.
While neither side disputes the relationship came into being at some point during
counsel's representation of defendant, there is no sworn statement, let alone
testimony, that would suggest when the relationship commenced. Defendant is
not required to take counsel's word for when the relationship began, particularly
when the only "evidence" of the commencement date comes from an unsworn
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letter. See State v. Cummings, 321 N.J. Super. 154, 168-70 (App. Div. 1999).
Defendant should be allowed a full opportunity to question his trial counsel,
Detective Burns, and any other witnesses with relevant information about their
relationship and its impact on counsel's representation of defendant .
The matter is not materially different from the situation in State v. Lasane,
371 N.J. Super. 151 (App. Div. 2004). The defendant there was a day short of
seventeen years old at the time he allegedly committed the charged offenses. Id.
at 154. Pursuant to the advice of both his attorney and his mother, defendant
entered a guilty plea. Id. at 160. Later, after being sentenced and losing his
direct appeal, the defendant sought post-conviction relief, asserting that his
mother's intimate relationship with his attorney deprived him of the type of
uncompromised advice required by the Sixth Amendment. Id. at 155. At the
conclusion of an evidentiary hearing, the judge determined that the relationship
between the defendant's mother and counsel consisted of a one-time liaison that
occurred after the defendant entered his guilty plea; based on this time line, the
PCR judge concluded no conflict of interest existed when counsel and the
defendant's mother recommended the entry of a guilty plea. Id. at 159-60. We
rejected that conclusion and remanded so the defendant might withdraw his
guilty plea. Id. at 166.
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Our Lasane holding logically followed from the Supreme Court's broad
view of the obligations of counsel. Id. at 164. We relied on State v. Land, 73
N.J. 24, 29 (1977), where the Court emphasized that the accused's right to
counsel "contemplates that the attorney's position as an advocate for his client
should not be compromised before, during or after trial," and we quoted State v.
Belluci, 81 N.J. 531, 538 (1980), where the Court stressed "[t]here is no greater
impairment of a defendant's constitutional right to counsel than that which can
occur when his attorney is serving conflicting interests." Although we then
viewed the circumstances in Lasane as unusual, we found the defendant's
entitlement to relief in Land and Belluci, and in other authorities, in concluding
that the advice received from both his mother and his attorney was impacted by
their relationship and was sufficient to allow the defendant to withdraw his
guilty plea. Lasane, 371 N.J. Super. at 166.
In Lasane we had the benefit of fact findings derived from an evidentiary
hearing. We conclude that we are entitled to the same here. Certainly, the only
information available raises grave questions about whether defendant's trial
counsel's relationship with the detective started earlier than claimed.
The mistaken assumption on which the matter has proceeded to date is
that the conflict of interest had its genesis in counsel's claim that his first date
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with Detective Burns was nine days after the verdict. There is no sworn
information as to that alleged fact and, to date, defendant has not had an
opportunity to cross-examine his trial counsel or others with relevant
information. We also reject the fixation on the first date or the notion that the
first date is the critical date in considering when the conflict arose. The
relationship or communications leading up to the relationship may have
commenced earlier.
These circumstances require exploration and development at an
evidentiary hearing. The PCR judge, whose approach was to assume the facts
were as asserted in trial counsel's January 2014 letter, as well as the generalities
represented by substitute counsel at the sentencing proceeding,2 deprived
defendant of the opportunity to explore whether the facts may have been
different.
Based on the little information that is in the record on this subject, the
PCR judge concluded that defendant failed to show he was negatively affected
by his trial attorney's relationship with Detective Burns. Such a conclusion was
2
All that substitute counsel offered about this conflict of interest was his
representation at the sentencing hearing that he previously spoke "directly" to
trial counsel who "indicated the conflict of interest did not exist at any time
during the trial and he has written a letter to the [c]ourt affirming that and I have
no evidence to assert to the contrary."
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premature; the circumstances to which we have alluded, and the impact of the
actual facts on defendant's right to an effective counsel "[un]compromised
before, during or after trial," Land, 73 N.J. at 29, must be fully explored and
examined at an evidentiary hearing. The PCR judge mistakenly abused her
discretion in declining to conduct such a proceeding.
II
We reject defendant's argument that trial counsel was ineffective in failing
to call Brooks to testify, to consult or retain a handwriting expert to support a
claim that he did not write the letter, and to more fully object to the letter. The
letter, as mentioned earlier and as discussed in our prior opinion, contains
defendant's purported statement that he was "facing a lot of time, if these two
bitches take the stand." The letter reveals that "these two bitches" were the
writer's "kuzin NaNa and Annie"; it was not disputed at trial that these
nicknames referred respectively to Latonia Bellamy, who is defendant's cousin,
and Darmelia Lawrence, both of whom implicated defendant in these crimes.
See Bellamy, slip op. at 12-14. Contrary to defendant's argument, at the first
trial Brooks did not testify that defendant did not write the letter, she only
testified that she did not know whether defendant wrote it. So, a repeat of that
testimony in the second trial would not likely have been helpful to the defense.
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Defendant also provided in support of his PCR petition a report from a
handwriting expert, who asserted defendant could "neither be identified nor
eliminated as the writer." Like Brooks' inconclusive testimony about whether
defendant wrote the letter, the expert's opinion also provides little weight to
defendant's contention that he was not the writer, since the expert could not
exclude that conclusion.
Lastly, even if counsel's decisions not to call Brooks and not to consult
with a handwriting expert fell below professional norms, prejudice has not been
shown. In our opinion on the direct appeal, we explained at length that the
admission of the letter was not capable of producing an unjust result because "of
the other overwhelming evidence" of defendant's guilt. Bellamy, slip op. at 18.
We agree with the PCR judge that defendant failed to provide a prima facie case
of ineffectiveness on the second prong of the Strickland/Fritz test.3
3
In Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984), the Court
held that an ineffectiveness argument is dependent on proof that counsel's
performance fell below professional norms and that there is a reasonable
probability that, but for counsel's unprofessional error, the result of the
proceeding would have been different. Reasonable probability in this context
means a "probability sufficient to undermine confidence in the outcome" of the
proceeding. Id. at 694. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting
the Strickland test for ineffectiveness arguments based on the state constitutional
right to counsel).
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***
To briefly summarize, we reject all defendant's arguments that the judge
erred in denying post-conviction relief with the exception that we agree the
judge erred by failing to conduct an evidentiary hearing about the relationship
between defendant's trial counsel and Detective Burns, a witness for the
prosecution, as to which we remand for an evidentiary hearing.
The order denying post-conviction relief is vacated and the matter
remanded for an evidentiary hearing. We do not retain jurisdiction.
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