Opinion
DOCKET NO. A-0093-11T1
03-28-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. QUASHON JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-06-0598.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Quashon Johnson appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. After a jury trial, defendant was convicted of the first-degree robbery of Michael Ridges, N.J.S.A. 2C:15-1; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; fourth-degree aggravated assault by knowingly pointing a firearm at Ridges under circumstances manifesting extreme indifference to human life, N.J.S.A. 2C:12-1b(4); and third-degree terroristic threats, N.J.S.A. 2C:12-3a. He was sentenced to an aggregate term of twelve years' imprisonment, eighty-five percent of which was to be served without parole under the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, among other points, defendant argued the admission of the out-of-court photographic identification made by Ridges, as well as his in-court identification, was error. State v. Johnson, No. A-0330-05 (App. Div. May 5, 2008) (slip op. at 2). We affirmed defendant's convictions, specifically concluding that trial Judge Raymond A. Reddin properly admitted the challenged testimony after conducting a N.J.R.E. 104 hearing on the issue. Id. at 4, 19. Defendant's petition for certification was denied by the Supreme Court. State v. Johnson, 196 N.J. 465 (2008).
On April 27, 2009, defendant filed a pro se petition for PCR alleging without specificity that trial counsel provided ineffective assistance. Appointed PCR counsel filed a brief to which the certification of Dr. Jennifer Dysart was attached. Dysart, an associate professor of clinical psychology at John Jay College of Criminal Justice in New York, opined regarding the general unreliability of eyewitness identifications. With respect to defendant's case, she criticized the out-of-court and in-court identifications of defendant as the perpetrator of Ridges's robbery.
Judge Reddin ordered an evidentiary hearing on the PCR petition. See R. 3:22-10 (setting forth the basis for ordering an evidentiary hearing on a PCR petition). The PCR hearing took place over three days during December 2010 and January 2011. Dysart testified in accordance with her prior report. Defendant also testified. He claimed that he spoke to trial counsel about the identification issue, which was critical to the State's case. Defendant claimed trial counsel told him, "Don't worry about it. . . . They don't have a case here." Defendant acknowledged that he did not believe trial counsel "adequately prepared [his] case on the identification issue."
We need not recite the testimony from the trial which is extensively detailed in our prior opinion, and we acknowledge that Ridges's identification was the sole evidence of defendant's guilt, and that defendant put forth an alibi defense supported by his testimony and that of two other witnesses. Johnson, supra, slip op. at 12-14.
After the summations of PCR counsel and the prosecutor, Judge Reddin issued an oral opinion and amplified his findings and conclusions in a comprehensive written opinion dated January 3, 2011. He cited the appropriate two-prong test regarding evaluation of a claim of ineffective assistance of counsel as enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
The judge stated that trial counsel "did an excellent job in calling into question the identification of [defendant]." He also concluded that trial counsel "acted zealously and fervently in defense of his client," and his "cross[-]examination of the State's witnesses was very effective and well[-]planned." As to PCR counsel's specific claim that trial counsel should have called an expert witness on identification, the judge noted "[t]here is nothing in the record that reflects the necessity of needing an identification expert in this case."
Judge Reddin then considered "[a]rguendo" whether calling Dysart or some other identification expert would have changed the result. He concluded, "The jury obviously found the victim credible and/or rejected the alibi defense . . . ." Addressing defendant's further claim that the identification procedure utilized by the police led to an unreliable identification, the judge cited our earlier opinion. See R. 3:22-5 (barring reconsideration of a claim after "[a] prior adjudication upon the merits"). He also stated that "[t]he use of an identification expert would not have affected [his] findings" on that issue. Judge Reddin entered an order denying defendant's PCR petition.
Before us, defendant raises a single point:
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO EMPLOY AN IDENTIFICATION EXPERT DURING THE WADE HEARING AND AT THE TRIALWe have considered this argument in light of the record and applicable legal standards. We affirm.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L.Ed. 2d 1149 (1967).
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the test formulated in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Fritz, supra, 105 N.J. at 58. First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
In the seminal case of State v. Henderson, 208 N.J. 208 (2011), our Supreme Court conducted an exhaustive review of the scientific evidence regarding the fallibility of eyewitness identification testimony. Among other things, the Court held that "[e]xpert testimony may also be introduced at trial, but only if otherwise appropriate." Id. at 297. Referencing prior case law regarding limits on expert testimony, the Court reiterated that, "experts may not opine on the credibility of a particular eyewitness." Ibid. (citing State v. W.B., 205 N.J. 588, 613 (2011)). Henderson was decided after the trial and PCR hearing in this case, and the Court expressly applied its holding prospectively. Henderson, supra, 208 N.J. at 302.
In W.B., supra, 205 N.J. at 613, in the context of expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS), the Court held "that expert testimony about the statistical credibility of victim-witnesses [was] inadmissible."
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Defendant cited no reported New Jersey case prior to Henderson that considered the admissibility of expert testimony on identification, but our independent research reveals three cases in which the issue was at least discussed. In State v. Gunter, 231 N.J. Super. 34, 36 (App. Div.), certif. denied, 117 N.J. 80 (1989), we declined to hold that expert opinion regarding eyewitness identification was admissible in the absence of a Rule 8, now N.J.R.E. 104, hearing. In State v. Grant, 254 N.J. Super. 571, 577-78, 589 (App. Div. 1992), without commenting on its propriety, we discussed the admission of expert testimony on eyewitness identification introduced by the defendant.
However, in State v. Long, 119 N.J. 439, 96 (1990), the Supreme Court concluded that the trial court did not abuse its discretion in excluding expert testimony on eyewitness identification because:
The proffered testimony was not clearly helpful to the jury's assessment of either the reliability of [witness's] eyewitness identification or the effect of his seeing defendant's photograph in the newspaper. [The witness's] testimony was amply tested on cross-examination, and defendant failed to demonstrate that the subject matter (problems of eyewitness identification) was beyond the ken of the average juror.We can comfortably say that, in New Jersey, the admissibility of expert testimony on eyewitness identification was not generally recognized until Henderson was decided.
We need not consider whether Dysart's testimony or that of any other expert would have been admissible in defendant's trial. See Henderson, supra, 208 N.J. at 298 (noting "there will be times when expert testimony will benefit the trier of fact[,]" but "leav[ing] to the trial court the decision whether to allow expert testimony in an individual case"). It suffices to say that, based upon the above discussion, we cannot conclude that trial counsel, representing defendant in 2004, provided ineffective assistance because he failed to call an expert on eyewitness identification.
We also accord deference to Judge Reddin's factual determinations regarding trial counsel's performance in all other respects. See State v. Harris, 181 N.J. 391, 415-16 (2004) (noting standard of review following PCR evidentiary hearing), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005)). We therefore conclude that defendant failed to meet the first prong of the Strickland/Fritz test, i.e., "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Having reached that conclusion, we need not consider the second prong of the analysis.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION