Berryman v. Morton

Citation100 F.3d 1089
Decision Date14 November 1996
Docket NumberNo. 95-5468,95-5468
PartiesEARL BERRYMAN v. WILLIS MORTON, Administrator, New Jersey State Prison, Trenton, New Jersey, and PETER VERNIERO, Attorney General of the State of New Jersey 1 Appellants
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

On Appeal from the United States District Court for the District of New Jersey Granting a Writ of Habeas Corpus, (Civil No. 94-3828 (DRD)) Peter Verniero, Attorney General of New Jersey, Linda K. Danielson (argued), Office of Attorney General of New Jersey, Department of Law & Public Safety, Division of Criminal Justice, Trenton, NJ, for Appellants.

Jean D. Barrett (argued), Ruhnke & Barrett, West Orange, NJ, for Appellee.

Before: BECKER, ROTH and McKEE, Circuit Judges

OPINION OF THE COURT

McKEE, Circuit Judge

Willis Morton, Administrator of the New Jersey State Prison at Trenton, and Peter Verniero, Attorney General of the State of New Jersey, appeal the district court's order granting a writ of habeas corpus to appellee, Earl Berryman. The district court granted the writ based upon its determination that Berryman had been denied effective assistance of trial counsel. For the reasons set forth below, we will affirm.

I.

March 11, 1983 was Alice Campos' eighteenth birthday. According to Campos, she and her friend, Christina Dos Santos, went to a club called "Studio One" in Newark, New Jersey, where a group of between 15 and 20 friends joined them to celebrate Campos' birthday. At approximately 2:30 a.m. on March 12, Campos and Dos Santos left the club, and Campos drove Dos Santos to the Irvington, New Jersey home of Dos Santos' mother, where Campos dropped Dos Santos off.

Shortly after driving away, Campos stopped at a traffic light and a man whom she later identified as Michael Bunch forced his way into her car. According to Campos' subsequent trial testimony, Bunch put a knife to her throat and forced his way into the driver's seat. Bunch then told Campos to remove her stockings. Campos responded by removing her panty hose and handing them to Bunch.

Bunch then opened the front passenger door and a man Campos later identified as Anthony Bludson got in and sat next to Campos. Bunch took $35 from Campos' purse, and ordered "[d]on't think about running because my friend got a gun." Campos then heard what she thought was the "click" of a gun; however, she never saw a gun.

Bunch and Bludson drove to a nearby supermarket parking lot where a man Campos later identified as petitioner, Earl Berryman, was waiting in a blue car. Campos was ordered to get into the rear seat of the blue car which Bunch then drove while Berryman sat in the front passenger seat, and Bludson sat in the rear with Campos. Campos testified that she could see the faces of all three men. According to her testimony, Berryman's face was only six to eight inches away as she was getting into the blue car. In her initial statement to police, however, Campos said she was blindfolded with her stockings after Bunch and Bludson got into her car, and before they were joined by the male identified as Berryman.

The trio drove Campos around for about two hours. They made her lie down on the floor of the back of the car that entire time. Finally, the car stopped at a "burned-out" building, and the three carried Campos inside. Once inside the building they made her remove her clothes and lie down on a mattress. Each of the three men then took turns raping her.

According to her testimony, after the sexual assault, the three men ordered her to get dressed, and Bludson put a knife in her back and walked her back to the blue car. They all got in, and Bunch drove the entire group back to Campos' car. There, Campos was released, and the three men drove away.

Later that same morning, at approximately 6:00, Campos returned to Dos Santos' house, and told Dos Santos and Dos Santos' mother what had happened. Campos testified that she was ashamed, frightened, and hysterical. Because she was so upset and because she did not think she could report the incident until the next business day, she did not report the rape for two days.

When she did contact the police on Monday, March 14, Detective Samuel Williams of the Irvington Township Police Department had her look through photographs of Black males arranged alphabetically by last name (the names were not visible to Campos) in "sleeves", or "books". Each book contained approximately 100 to 150 photographs. Campos looked at all of the photographs in the first sleeve that contained only photographs of Black men whose last name began with "A". She was unable to identify anyone, and proceeded to the "B" sleeve. She selected the photographs of Earl Berryman, Michael Bunch and Anthony Lee Bludson from that book. Campos did not look at any more photographs because she appeared to have identified all three of her attackers from the "B" sleeve. Thus, she never saw police photos of anyone whose last name ended in the letters "C" through "Z".

That same day, Campos was examined by In-grid Brown, M.D. Dr. Brown found physical evidence consistent with rape, and also discovered that Campos was infected with vaginal and rectal gonorrhea. Campos did not have gonorrhea before the assault. Dr. Brown did not attempt to use a "rape kit" to retrieve traces of any excretions that could have identified the attackers because of the amount of time that had passed since the assault.

Based upon Campos' identifications, Detective Williams sent letters to the last known address of Berryman, Bunch and Bludson, but Berryman's letter was returned to the police by the post office on March 17, 1983.

Despite repeated requests from Detective Williams, Campos did not return to police headquarters to sign a complaint until April 21, 1983. In the meantime, Detective Williams did nothing further to ascertain where Berryman lived, and he apparently investigated the matter no further. Williams testified that he took no further action because his superior, Sergeant Michael Tomich, told him to "lay off" the rape investigation. Bunch was a suspect in an unrelated, but ongoing, bank robbery/homicide investigation which had taken place two days after the rape, and Detective Tomich apparently hoped that Bunch would incriminate himself in the more serious homicide if he remained on the street.

More than a year passed before the police tried to arrest anyone. Finally, on January 19, 1984, Berryman, Bludson and Bunch were named in a seven-count indictment and charged with various offenses stemming from the kidnapping, and assault of Campos. Bludson's trial was severed from the joint trial of Berryman and Bunch. Bludson went to trial first, and had to be tried twice because his initial trial ended with a hung jury and a mistrial. His second trial resulted in an acquittal.

Berryman and Bunch went to trial in March of 1985. Their first trial also ended in a mistrial when a juror disclosed her improper discussions with fellow jurors. The retrial began immediately, and concluded with the conviction of both Berryman and Bunch. Berryman was sentenced in July of l985 to an aggregate term of imprisonment of 50 years with a parole ineligibility period of 25 years.

At his trial, Berryman denied participation in the crime. He took the stand in his own defense and testified that he had neither a driver's license nor car, and that he had never met Bunch nor Bludson. Berryman had a steady employment history and had not previously been indicted. His conviction rested entirely upon Ms. Campos' uncorroborated identification.

Campos had testified at both of Bunch's trials before testifying against Berryman and Bludson. Her testimony at the Bunch trials differed from the descriptions she gave in Berryman's trial, yet, Berryman's attorney did not use the prior inconsistent testimony to cast doubt upon Campos' identification. He also failed to call either Bludson or Dos Santos as defense witnesses. Berryman's attorney did, however, manage to elicit testimony that allowed the jury to discover that Bunch was under investigation for a bank robbery homicide which tended to associate Berryman with that investigation, and with Bunch.

II.

Berryman and Bunch appealed their convictions to the Appellate Division of the Superior Court of New Jersey. They alleged that the trial court had improperly admitted evidence of the unrelated homicide investigation, and that they had been denied the effective assistance of trial counsel. However, the Appellate Division affirmed the trial court's determination that defense counsel had opened the door to the admission of the testimony regarding the unrelated bank robbery homicide investigation. The Appellate Division also held that any evidence as to why Bludson was not called as a witness was outside the scope of the record. However, the court allowed issues relating to trial counsel's effectiveness to be raised in a motion for post-conviction relief. Further direct review of the conviction was apparently not sought.

Berryman and Bunch then filed petitions for post-conviction relief, alleging ineffective assistance of counsel. Berryman argued that his counsel had been ineffective (1) in failing to use Campos' inconsistent identification testimony from the Bludson trial; (2) in opening the door to the admission of testimony concerning the bank robbery homicide investigation of Bunch; and (3) in failing to call Bludson and Dos Santos as defense witnesses.

Berryman's trial attorney testified at a hearing that was held on the post-conviction petition, and explained his reasons for conducting Berryman's defense as he had. The post-conviction hearing court thereafter issued an oral opinion in which it found that trial counsel had made a reasonable investigation to determine the location of Bludson; that the determination not to call Dos Santos as a witness had been a strategic one; that Campos' inconsistent testimony at the Bludson trial...

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