Opinion
DOCKET NO. A-4235-10T1
04-02-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MELVIN HARRIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-08-2883.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Melvin Harris, appeals from an order entered by the Law Division on April 23, 2010, denying his petition for post-conviction relief (PCR). We affirm.
Defendant was charged in Camden County Indictment No. 02-08-2883 with two counts of first degree armed robbery, N.J.S.A. 2C:15-1 (counts one and two); first degree carjacking, N.J.S.A. 2C:15-2 (count three); and fourth degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4e (count four).
Defendant's jury trial (the first trial) commenced on March 25, 2003. Prior to opening statements, count four was dismissed on motion of the State. Shortly thereafter a mistrial was declared after three jurors were dismissed by the court for cause.
After the mistrial was declared, with consent of counsel, the court conducted a Wade hearing with respect to the photographic identification of the defendant by various State's witnesses. Counsel further agreed that the court's ruling would be admissible at the retrial. At the conclusion of this hearing the judge ruled that the identification procedure was not impermissibly suggestive. He found the procedure reliable and in conformance with the Attorney General Guidelines.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
See Office of the Attorney Gen., N.J. Dep't of Law and Pub. Safety, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (2001) (Attorney General Guidelines).
A second trial commenced on May 20, 2003 before a new judge. On May 22, 2003 the jury convicted defendant on the three remaining counts. On July 25, 2003 the judge sentenced defendant to a twenty-five-year term of imprisonment with an eighty-five percent parole disqualifier on count three, and concurrent sixteen-year terms with an eighty-five percent parole disqualifier on counts one and two.
On appeal, we affirmed defendant's conviction as well as the sentence imposed. State v. Melvin Harris, No. A-0718-03 (App. Div. December 2, 2005) (slip op.). The Supreme Court denied defendant's petition for certification. State v. Harris, 186 N.J. 255 (2006).
On April 25, 2008 defendant filed a pro se petition, accompanied by a letter brief, generally alleging ineffective assistance of trial counsel. PCR counsel was appointed and filed a supplemental brief, specifically contending that trial counsel (a) conducted the Wade hearing without adequate preparation, and (b) failed to adequately challenge the dismissal of juror number six during the first trial.
Defendant abandoned this issue on appeal. Hence we do not discuss it further in this opinion.
Oral argument took place before the PCR judge, who was not the judge on either trial. The PCR judge determined that defendant's claim was procedurally barred under R. 3:22-4 because it could have been raised on direct appeal. Turning to the merits, the judge concluded that defendant failed to establish a prima facie claim of ineffective assistance of counsel. He entered an order denying the petition on April 23, 2010, and this appeal ensued.
I
We repeat here the facts as set forth in our previous opinion:
According to the State's proofs at the retrial, in the early morning of February 8, 2002, cab driver Krystal Henderson was driving the night shift for her family's company, the People's Taxi, in Lindenwold, accompanied by her friend Clarissa Gundy, who was also employed by the People's Taxi. At around 12:15 a.m., the two women pulled up to the Lindenwold high-speed line station to pick up a customer when they noticed defendant standing alone by a trash can, about three feet away. Defendant was still there when the two women returned after dropping off their customer. While Krystal and Clarissa were waiting for another "fare", defendant stood behind the trash can staring at them and eventually approached the taxi. Once inside the cab, defendant asked to be taken to Heritage Court, an apartment complex in Berlin Township.
Defendant said nothing for the first ten minutes. Then, all of a sudden, he leaned over the middle of the two front seats, pointed a gun at Clarissa's head, and told Krystal to "pull the F over". Krystal complied. Defendant then ordered her to shut the car lights off, which she did,
while keeping the car in drive, with her foot on the pedal. Defendant pulled a ski mask down over his face and, pointing the gun at Clarissa's left temple, ordered Krystal and Clarissa to give him all of their money and jewelry. Krystal handed over about $400 in cash and her earrings. Clarissa had no money, but gave him her earrings and rings. As Clarissa struggled to get one of her rings off, Krystal asked if she needed lotion. Defendant ordered Krystal to "shut up", and she complied. Defendant also demanded the cab phone, which was in Clarissa's lap. When told there was no other phone, defendant demanded a cell phone, but they did not have one.
Defendant then told Krystal to drive to a wooded area, where he then ordered both women out of the car. When defendant saw Clarissa had a pocketbook, he took it, got back into the car, and started looking through it. Defendant looked at the women "for a second" before he put the car in reverse, turned around, and drove away.
Krystal and Clarissa ran to a house some distance away and started banging on the door. A woman answered and called the police. When the police officer arrived, Krystal and Clarissa gave him a description of defendant. They accompanied the officer to Heritage Court to look for defendant and, not finding him there, accompanied him to the police station where they each, separately, made a positive identification of defendant from a photographic array.
Police also interviewed two other cab drivers who were at the taxi stand when defendant got into Krystal's cab. One of the drivers, Shamsuddi Sikander (Sam), had seen defendant enter Krystal's cab in the early morning hours of February 8, 2002. Just prior to that, defendant had first approached Sam's cab for a ride to Heritage
Court, but Sam declined, believing something was wrong with defendant because he was shaking. The other taxi driver, Jasvir Multani (Lucky), knew defendant as a regular customer whom he frequently drove to 299 Harrison Avenue in Heritage Court. In fact, in the early morning of February 8, 2002, he had asked defendant if he needed a ride, but defendant declined, saying that he was waiting for someone. As Lucky was pulling away from the curb with another customer, he saw defendant enter Krystal's cab which was right behind his. When Lucky was informed only an hour or two later that Krystal was robbed and her taxi stolen, he advised the police the perpetrator might be a man living at 299 Harrison Avenue in Heritage Court.
An arrest warrant was issued for defendant on March 2, 2002, but he was already incarcerated in county jail. Defendant was interviewed after being advised of his Miranda rights, and having waived them. Once informed that witnesses had identified him at the train station on the morning of the incident, defendant acknowledged being there around a month ago and admitted speaking with Lucky, but said that he had declined Lucky's offer for a ride and took the train back to Camden instead. Later on, defendant said that he actually took a taxi, driven by a heavyset white woman, to a friend's house in Heritage Court. At that point, defendant discontinued the interview because he realized his story was inconsistent.
Based on these facts, the jury convicted defendant of the armed robberies of Krystal and Clarissa and the carjacking of Krystal's cab. This trial followed an earlier one, which commenced on March 25, 2003, and ended in a mistrial after the judge excused three jurors for cause, reducing the remaining jurors to less than twelve.
[Harris, supra, slip. op. at 3-6 (footnotes omitted).]
II
In the brief filed by his appellate counsel, defendant argues:
Point I:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.Point II:
B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT AS A RESULT OF HIS FAILURE TO THOROUGHLY PURSUE THE MANNER IN WHICH THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS CONDUCTED AT A COMPREHENSIVE WADE HEARING.
RULE 3:22-4 DID NOT OPERATE AS A PROCEDURAL BAR TO PRECLUDE THE DEFENDANT'S CONTENTION FROM BEING ADJUDICATED ON A SUBSTANTIVE BASIS.
III
Before addressing each of these points, we set forth the well established principles that guide our review.
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. den., 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
As an initial matter, we agree with the PCR judge's determination that defendant's claim of ineffective assistance of counsel is procedurally barred pursuant to R. 3:22-4 for failure to raise it on direct appeal. We note that on appeal defendant contended that his counsel's failure to raise a double jeopardy claim before retrial was ineffective assistance warranting reversal of his convictions. As with that contention, defendant's present claim that trial counsel was ineffective in challenging the out-of-court identification procedure is a matter of record and was similarly capable of being raised on direct appeal.
Defendant seeks to evade the procedural bar of R. 3:22-4 by arguing ineffective assistance of appellate counsel in failing to advance this issue on direct appeal. We address the merits of defendant's claims, as did the PCR judge, and conclude that they lack merit and that any effort to raise them on direct appeal would have been futile.
During the first trial, on direct examination, Henderson testified as follows:
Q All right. Now, you looked at a book?
A I looked at a book and then he showed us, like, little pictures. Just like, little eights - - I don't know how many. I can't remember how much they were, but they were just, like, little pictures.
There wasn't too many, but the book was thick.
Q And did you see the defendant in the book?
A In the book? No, I didn't see him in the book, but I did see him in the pictures.
Q Okay. So, I'm going to show you what has been marked S-8. And just take your time and look through that pile of little photographs. Does your name [ ] appear on any of those photographs?
A Yes.
Q And what number?
A Number three.
Q Okay. And for the record, is that the defendant? Does that appear to be the defendant? Who you've pointed out in court.
A Yes.
Q Now, did you show the - - do you recall how he showed them to you? Were they separate like that?
A No, they were laid out.
Q Okay. Were they attached or were they cut? If you - -
A They were cut.
Q Okay. And tell us, how did it happen? What did you say?
A What do you mean?
Q Tell the ladies and gentlemen of the jury how that happened.
A What, how he laid them out?
Q What - - and what you said. If you remember.
A Well, he laid them out, like, did you ever play solitaire or kings or something like that. And you lay them out like this and you go like this. Right? And then he asked me, do you see any - - do any of these reflect on the person that did it. And I said, yes. And I pointed to this one. And he said, okay.
Q Okay. Right away, without hesitation you pointed to that one?
A Yes... .
On cross-examination, defense counsel probed Henderson on how the photographic identification was conducted:
Q Ms. Henderson, just so I'm clear, Sergeant Check laid all these pictures out in front of you and asked you if you recognize anybody?
A Yes. On like, a big long table.
Q Okay. So, he didn't show them to you one at a time. Is this correct?
A No, he didn't.
After Henderson completed her testimony the following colloquy between defense counsel and the trial judge ensued:
[COUNSEL]: Judge, before we begin that, I need to raise an issue that deals with the last witness. Or maybe, perhaps, the next witness. I had not requested a Wade hearing with regard to the witness who just testified, because the discovery had
indicated that there was a - - to be specific, Judge, the photo array that was shown to her. Because there was no photo array that was contained in the discovery, I assumed and wrong - -
THE COURT: Was sequential?
[COUNSEL]: Yes. Wrongfully so, Judge, it appears, I assumed that they were shown sequentially, in accordance with the Attorney General [G]uidelines.
THE COURT: Correct.
[COUNSEL]: And therefore, I did not request a hearing in that regard. Now, it turns out from the testimony of the witness that, in fact, it was not a sequential array. But it was, in fact, these photographs were put out in - - all at once in front of her, which is a violation of the Attorney General [G]uidelines.
THE COURT: Well, that's the way they used to do it. And the directive has changed. I - -
[COUNSEL]: Well, that's correct. That's correct. At one time, that was accepted as was putting people on the pillories. But it's no longer accepted practice and I'm going to ask for a hearing with regard to the next witness, Judge. Frankly, I don't know what could be done with regard to the first witness.
THE COURT: Well, we can't have it back. I'll hear the suggestion.
Following counsel's argument, the court agreed that a further hearing was required, and additional testimony necessary, to determine whether the photographic identification procedure comported with the Attorney General Guidelines. As noted, intervening problems with three jurors caused the judge to declare a mistrial. However, since the necessary witnesses were present, it was agreed that the Wade hearing would be conducted to determine the admissibility of the out-of-court identifications at the ensuing retrial.
Detective Leonard Check, a thirteen-year veteran of the Berlin Township Police Department, investigated these crimes. He was also working on a prior burglary investigation that defendant was a suspect in. On direct examination at the Wade hearing Check testified:
Q Okay. How was it that you conducted the array? The identification.Check further testified that the photo array was administered to Gundy in the same manner.
A Well, I met with Krystal first. You know, just Krystal and I. And I showed her one photo at a time. I kind of laid it down in front of her and I would have just showed her one photo at a time. Had her look at the photo and then put the other one on top. And then put the other one on top. And then what she picked, if she came upon who she felt did it, in this case she picked Mr. Harris. She picked him.
I continued with the rest of the photos and she still thought it, you know, she said it was the person that she picked. Then I laid them out all on the table, just to verify again that the one that she picked was, in fact, the person that did this.
Q So, she first picked him when you gave her the photographs one at a time.
A Right.
Q And then you laid them out. How did you lay them out?
A I would have laid them all out so she could just verify that who she picked was definitely the person. There was no question in her mind that the person that she picked initially, was in fact, the person that committed the robbery.
At the conclusion of the Wade hearing the judge determined:
Okay. I find the procedure was not impermissibly suggestive. I find that the procedure was reliable and therefore the photo array will be admitted. Okay. And was in compliance with the Attorney General's guidelines. Although it took us a while to get there. Okay.
We reject defendant's argument that trial counsel's efforts in challenging the out-of-court identification were deficient. Under the first prong of the Strickland test, defendant must show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Here trial counsel, after hearing Henderson's testimony suggesting that the photographic identification procedure did not comport with the Attorney General Guidelines, promptly sought, and obtained, a Wade hearing. Trial counsel then proceeded to elicit testimony from Check regarding the procedure used and whether it complied with the Guidelines.
The Guidelines recommend that, when possible, photo lineup procedures should be conducted sequentially, i.e., showing one photo at a time to the witness, rather than simultaneously. Attorney General Guidelines, supra, at 1.
Defendant faults trial counsel for failing to more aggressively cross-examine Check about the seeming inconsistency between his testimony, and Henderson's testimony that the photos were shown to her simultaneously rather than sequentially. However on cross-examination trial counsel specifically asked Check:
Q Did you show the pictures to Ms. Henderson one at a time? Or did you hand her the pile of eight and have her go through them individually?
A I showed them one at a time.
Q Okay. And did she stop - - do you recall in what order you showed them? Did you show number one, number two, number three, as you numbered them?
A No, I don't recall.
Contrary to defendant's argument, there is nothing in the record to even remotely suggest that, following counsel's questioning, the trial court was unaware of this apparent inconsistency. Rather, after hearing further testimony, the trial judge resolved the issue in the State's favor. As the PCR judge aptly pointed out:
As to the argument with respect to the [c]ross-examination of the detective at the Wade Hearing, as to Part One of the Strickland Test, what we have here is a case of arguably conflicting testimony.
The more I have reviewed the record here, the more confused in some sense it seems to be. Particularly, with respect to the testimony of the witness, not the detective, but the defendant's argument here is basically that because of inadequate [c]ross-examination that the existence of this inconsistency was lost on the judge who then allegedly erred in allowing the testimony of the identification to be admitted into evidence.
But, that requires this Court to assume that the trial judge was unaware of the inconsistency. And there does not appear to be any basis to make that assumption.
The PCR judge further found that, regardless of whether Check utilized a simultaneous or a sequential photo display, there was no evidence that the procedure utilized was unduly suggestive. In also finding that defendant failed to satisfy the second prong of the Strickland test, the PCR judge stated:
Even assuming that the trial counsel was ineffective in not probing enough, the detective's testimony about the conduct of the photo lineup, Part Two of the Strickland Test, is not met here. There is no
contention that the process itself was unduly suggestive.
There is no record - - There is no evidence in the record at all that the process that was employed - - assuming it was a process of a simultaneous display of the pictures rather than sequential, that it was unduly suggestive.
As noted in the briefs, it is [ ] not the case that a deviation from the guidelines results in an automatic basis for exclusion of the identification evidence.
And moreover, as the Court noted, there was other identifying evidence presented in the case by the other individual who was in the vehicle on the night in question.
And moreover, again with respect to the second part of the Strickland test, the Manson case sets out the factors regarding the reliability of identification and those factors - - you know, applying those factors to the facts here suggests that even if the Court had been aware through more full [c]ross-examination of a conflict and even had the Court determined that the [G]uidelines were not followed and the photographs were displayed not sequentially but simultaneously, that all of the other facts in the record would certainly have warranted a conclusion by the Court that the
testimony still could be - - the identification testimony still could be admitted because of the reliability of the identification.
The witness had extensive opportunity to view the defendant at the time of the offense. [She] viewed him twice prior to him entering the cab. He was in the cab for ten minutes without a mask.
Her degree of attention was likely to be substantial and her identification of the defendant in the array was without hesitation and there was a fairly short amount of time between the commission of the crime and the identification, only a few hours.
So, for those reasons the Court finds that the first argument with respect to the Wade [h]earing, that the defendant cannot state [ ] a prima facie case for relief on that argument.
See generally Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977) (reciting a two-part test of suggestiveness and reliability); see also State v. Madison, 109 N.J. 223, 232-33 (1988) (adopting the federal approach in Manson to guide the courts of this State). Our Supreme Court later revised the rules governing out-of-court identification procedures in State v. Henderson, 208 N.J. 208, 288 (2011). However, those provisions do not apply to our review because defendant was tried before Henderson was decided and the decision is not retroactive. Id. at 302.
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We agree with the PCR judge that defendant also failed to satisfy the second prong of the Strickland test, which requires him to demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed. 2d at 698. A "reasonable probability" is one "sufficient to undermine confidence in the outcome." Ibid. Here there was substantial evidence of defendant's guilt, independent of the challenged out-of-court identifications. A cabdriver, Lucky, knew defendant as a regular customer and observed him enter Henderson's taxi shortly before these crimes occurred. Defendant had first approached another cabdriver, Sam, for a ride to Heritage Court, which Sam declined. Sam then observed the man enter Henderson's cab. When informed that witnesses had identified him at the train station, defendant gave inconsistent statements, admitting that he actually took a taxi, driven by a heavyset white woman, to a friend's house at Heritage Court.
Defendant also argues, for the first time on appeal, that trial counsel was deficient in failing to challenge Check's role in conducting the photo arrays. Check was aware defendant was a suspect in a separate investigation. Thus, defendant contends, trial counsel should have argued that this constituted a separate violation of the Attorney General Guidelines, which recommend that, "whenever practical", the person conducting the photo lineup should be someone other than the primary investigator assigned to the case. Attorney General Guidelines, supra, at 1. However, even if this contention is correct, there is again nothing in the record to establish that Check improperly influenced the identification process or that the result at trial would have been different.
Finally, we review under the abuse of discretion standard the PCR court's determination to proceed without an evidentiary hearing. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d (1997). Evidentiary hearings should be granted if the defendant has presented a prima facie case of ineffective assistance under the Strickland test. State v. Preciose, 129 N.J. 451, 462 (1992). "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, ... then an evidentiary hearing need not be granted." State v. Marshall, supra, 148 N.J. at 158 (citing Preciose, supra, 129 N.J. at 462-64; State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989); and State v. Odom, 113 N.J. Super. 186, 192 (App. Div. 1971)). We find no abuse of discretion in the denial of defendant's PCR petition without an evidentiary hearing, since the allegedly deficient conduct is a matter wholly within the trial record, and defendant fails to present a prima facie case of ineffective assistance of counsel.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION