Opinion
DOCKET NO. A-5116-11T4
07-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHARROD KING Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-07-0622.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the trial court's order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from his 2010 judgment of conviction of second-degree robbery of a convenience store clerk. Defendant pleaded guilty to the offense. Consistent with his plea agreement, the trial court sentenced defendant to seven years subject to the No Early Release Act. N.J.S.A. 2C:43-7.2. He was required to serve eighty-five percent of his sentence before parole eligibility.
Defendant simultaneously pleaded guilty to a third-degree drug offense and was sentenced to a flat four-year term, concurrent with his robbery sentence.
Defendant principally argues that he was denied effective assistance of counsel because his attorney failed to file a Wade motion to exclude the clerk's identification of him. Having reviewed his arguments in light of the facts and applicable law, we affirm.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
I.
We discern the following facts from the record, including the report of Millville police officer Carl Heger. At about 5:30 a.m. on June 11, 2009, Heger received a report of a robbery of a 7-11 store. He interviewed the store clerk, Sanoj Acharya, who was on duty during the robbery. Acharya described the robber and said he recognized him as a regular customer.
Acharya told Heger that "the robber had on a white hooded sweatshirt and a black ski mask, but [he] could still see his hair which was long and braided/dreadlocks." Although the robber was masked, "Acharya stated that he still recognized the robber as a regular customer by his voice." Heger reported, "Acharya stated he remembers him well because he is always rude when he comes in the store. Acharya stated he came in the store earlier in the morning and bought a pack of Black and Mild Cigars and was not wearing any mask."
The store manager Ashish Shah had arrived at the store and was able to play back in-store surveillance video for the officer. The video of the robbery showed a "black male wearing black sneakers, dark blue jeans cuffed up at the ankles with a white tag on the right rear pocket, a white hooded sweatshirt with black designs with the hood over his head, and two black strings hanging out of the collar area of his sweatshirt." The robber was also seen holding a black semi-automatic handgun.
Heger also viewed the video of a transaction that occurred at about 4:38 a.m. It showed a black man with long dreadlocks wearing many of the same items of clothing as the robber: black sneakers, dark blue jeans cuffed up at the ankles with a white tag on the right rear pocket. Although the customer wore a black hooded sweatshirt, Heger believed the sweatshirt's black draw strings were the strings visible under the robber's white sweatshirt. The "gait or stride" of the customer and robber also appeared identical.
Heger recognized the customer as defendant from his prior contacts with law enforcement and the criminal justice system. Heger left the store to prepare a photo lineup to ascertain whether Acharya could identify defendant. Using the police department's booking photo system, Heger compiled a photo array of six black males with braided or dreadlock hair. Defendant's photo was placed fourth. Heger returned to the store to display the array to Acharya.
I advised him I was going to show him a series of photographs and he was to point out the person who robbed him if he was present in the lineup. I advised that the person who did the robbery may not be in the photographs so he did not feel pressured into selecting a photo.
I then showed Acharya the photos one at a time. . . . He immediately stated "No" after photos 1, 2, and 3. At photo 4, Sharrod King, he stated "That's him. Yes, That's him." I still showed him the other two photos with him stating "No" after each.
Defendant was arrested at about 6:20 a.m. Defendant admits he was "a customer in the store an hour prior to the alleged robbery." However, at the time of his arrest less than two hours later, defendant was "wearing white sneakers and a red shirt with black designs." He was still wearing the blue jeans with the white tag on the rear pocket. Heger wrote, "In my experience it is common for an experienced criminal like King . . . to alter his appearance after a crime." Efforts to locate the gun used in the robbery were unsuccessful.
Defendant was indicted in July 2009. He was charged with first-degree robbery, N.J.S.A. 2C:15-1a(1), -1a(2) and -1b; fourth-degree theft, N.J.S.A. 2C:20-3; and three counts of second-degree firearms offenses, including unlawful possession of a weapon, N.J.S.A. 2C:39-5b, possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and being a certain person not to possess a firearm, N.J.S.A. 2C:39-7b. Defendant filed no pre-trial motions before entering his guilty plea in February 2010.
Defendant filed his pro se petition for PCR in April 2011. He principally argued that his plea attorney was ineffective because she failed to file a Wade motion to exclude Acharya's identification of defendant. He argued counsel should have challenged the photo identification and should have sought a voice identification.
The trial court denied the petition. The judge applied the two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (stating that a petitioner must establish (1) his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). The judge concluded defendant had not demonstrated prejudice because the identification was never introduced into evidence. "Even if attorney should have requested a Wade hearing[,] the defendant suffered no prejudice because the identification was never entered into evidence[;] it was never used against the defendant because he pled guilty."
This appeal followed. Defendant's sole point for our consideration is, "DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF."
II.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421.
As noted, to establish a prima facie claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
However, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Ibid. A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). A court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
A defendant is entitled to effective assistance in the process of plea negotiation. Missouri v. Frye, 566 U.S. __, __, 132 S. Ct. 1399, 1405-06, 182 L. Ed. 2d 379, 387-88 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. __, __, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012).
Where a defendant, as a result of attorney ineffectiveness, accepts a guilty plea instead of going to trial, the petitioner may satisfy the prejudice prong by showing "a reasonable probability that, but for counsel's errors, [he or she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
As defendant pleaded guilty, he must establish as a prerequisite to relief that had his trial attorney filed the Wade motion, there is a reasonable probability that he would not have pleaded guilty. This presumes that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). Where the petitioner complains his counsel should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998). The same rule applies to a petition grounded on an alleged failure to file a Wade motion.
Applying these principles, we note first, defendant did not expressly state that but for his trial counsel's alleged ineffectiveness, he would not have pleaded guilty. This alone is fatal to his claim that he suffered prejudice. However, even assuming the failure to allege prejudice was an oversight, defendant has failed to establish that the omitted motion would have succeeded. To reach that conclusion, we briefly review the legal principles that would have applied to a Wade motion had defendant filed one in 2010 before his plea.
Although the Supreme Court revised the governing standard in State v. Henderson, 208 N.J. 208 (2011), that revision was made prospective. In determining whether an identification should be excluded, under the applicable standard, a court would "first . . . ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). The test also required a court to consider the "totality of the circumstances" and to weigh against the suggestive procedure five factors: "'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Id. at 506-07 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).
The same test of suggestiveness and reliability apply to the admission of voice identifications. State v. Clausell, 121 N.J. 298, 328 (1990) (finding in-court voice recognition of defendant in courtroom twenty months after incident was impermissibly suggestive); State v. Gallagher, 286 N.J. Super. 1, 15-16 (App. Div. 1996) (finding no suggestiveness where witness heard multiple voices speaking nursery rhymes, and no lack of reliability, given witness had ample opportunity to listen to her attacker's voice), certif. denied, 146 N.J. 569 (1996); State v. Johnson, 138 N.J. Super. 579, 582 (App. Div.) (finding witness's opportunity to identify her assailant's voice was "extraordinary," given she was able to listen to his voice for thirty continuous minutes in a quiet room), certif. denied, 71 N.J. 340 (1976).
Also, a defendant is not automatically entitled to an evidentiary hearing on the admissibility of an identification. See State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Instead, a defendant had to "proffer . . . some evidence of impermissible suggestiveness." State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994). Even if a hearing is granted, the defendant bears the burden to prove "a very substantial likelihood of irreparable misidentification." Henderson, supra, 208 N.J. at 289 (stating that burden allocation is unchanged under new test).
Defendant argues the photo identification procedure was impermissibly suggestive because Heger did not adhere to Attorney General guidelines. 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 1 (2001) (Attorney General Guidelines). The guidelines state that generally, officers uninvolved in the investigation should conduct the photo identification procedure to avoid inadvertent signaling of the person the police viewed as a suspect; and the procedure should be recorded. Defendant speculates that Acharya was present when Shah, the store manager, played the video for Heger, and Heger recognized defendant as the customer at 4:38 a.m. — although Heger's report is silent on who was present. Even if Acharya was not present, defendant speculates that Shah may have relayed Heger's identification to Acharya, because the report did not state that Heger directed Shah not to relay it. Defendant argues counsel was ineffective by failing to file a motion to test defendant's voice identification. In response to the trial court's opinion, defendant argues he suffered prejudice, notwithstanding that the case did not go to trial, because exclusion of Acharya's identification "could have eliminated his prosecution altogether."
We are unpersuaded. First, we agree the trial court erred in grounding its denial of the petition on the fact defendant did not go to trial. As we discussed above, the issue in a case where defendant has pleaded guilty is whether, but for counsel's ineffectiveness, defendant would not have pleaded. If a successful pre-trial motion would deal a deathblow to the State's prosecution, a defendant may persuasively argue he would not thereafter have pleaded guilty.
However, we discern no basis for concluding that defendant would have succeeded in a motion to exclude Acharya's identification. Indeed, a court would not have abused its discretion in declining to conduct a Wade hearing. The violation of the Attorney General Guidelines does not require per se exclusion of an eyewitness identification. Henderson, supra, 208 N.J. at 292-93.
Acharya's identification was not a product of impermissibly suggestive police identification procedures because it was not a product of the police identification procedures at all. See Perry v. New Hampshire, 132 S. Ct. 716, 720-21, 181 L. Ed. 2d 694, 703 (noting that pre-trial screening for reliability under United States Supreme Court decisions "turn on the presence of state action" in the form of "improper law enforcement activity"); State v. Chen, 208 N.J. 307, 317-18 (2011) (noting that private activity suggesting an identification does not implicate due process concerns). When Heger arrived at the convenience store, Acharya had already concluded that the robber was his regular customer, who had most recently visited the store that morning. Nor is there any evidence that a private actor skewed or affected Acharya's conclusion.
Our Court, contrary to the United States Supreme Court in Perry, supra, held in Chen that a trial court, in the exercise of its gatekeeping function, shall require a preliminary hearing in certain cases involving private conduct affecting an identification. However, the Court set a higher threshold for a defendant challenging an identification allegedly tainted by private activity. The challenger must present evidence of "highly suggestive circumstances as opposed to simply suggestive conduct." Chen, supra, 208 N.J. at 327. But, Chen, like Henderson, supra, has only prospective effect. Id. at 328.
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Defendant admits in his petition that he visited the store the morning of the robbery to make a purchase. In viewing the photo array, Acharya identified defendant as the 4:38 a.m. customer, but Heger could determine that fact from the video, and defendant did not challenge his presence as a customer. Acharya's identification of defendant as the robber was based not on his identification of defendant's face; defendant was masked. It was based on his voice, his hair visible despite his hood, and, we presume, defendant's stature, and mannerism.
Acharya's identification was far from unreliable. He had seen and heard defendant many times. Acharya distinctly recalled defendant because of his voice and what Acharya perceived to be his rude manner. Acharya concluded the robber was defendant, his regular customer, based not only on his voice, but his dreadlocks. Although not expressly mentioned, we presume that if the robber had distinctly different height, weight, or mannerisms, Acharya may not have reached the conclusion he did.
In sum, police activity did not impermissibly suggest to Acharya that defendant was the person who robbed him, nor was Acharya's identification unreliable. Therefore, a Wade motion would have been unsuccessful. Defendant's attorney was not ineffective by determining not to file the motion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION