Opinion
DOCKET NO. A-0551-10T4
04-29-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH WALLACE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed pro se supplemental briefs.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and St. John.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-12-3008.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed pro se supplemental briefs. PER CURIAM
Defendant Joseph Wallace appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm essentially for the reasons set forth in the comprehensive and cogent oral opinion of Judge Rachel N. Davidson.
I.
We briefly summarize the relevant procedural history and the facts based on the record before us.
After a jury trial, defendant was convicted for murder, N.J.S.A. 2C:11-3(a)(1), possession of a handgun without a permit on June 15, 2005, N.J.S.A. 2C:39-5(a), possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and possession of a handgun without a permit on July 1, 2005, N.J.S.A. 2C:39-5(b). Defendant was sentenced to an aggregate term of forty years incarceration, subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed and we affirmed. State v. Wallace, No. A-3335-06 (App. Div. Apr. 29, 2009), cert. denied, 200 N.J. 209 (2009).
Our opinion on direct appeal describes the facts which led to defendant's conviction. In essence, the State's proofs established that defendant shot and killed a rival drug dealer in Newark. The State's case was based upon the testimony of several eyewitnesses.
Defendant filed a pro se PCR petition and several pro se letters that the PCR judge considered. Defendant's counsel also submitted a brief, appendix, supplemental brief, and second supplemental brief.
After conducting an evidentiary hearing, Judge Davidson, in an extensive oral opinion, denied defendant's petition.
On appeal, defendant raises the following issues for our consideration:
POINT ONE
DEFENSE COUNSEL'S FAILURE TO CHALLENGE THE STATE'S IDENTIFICATION EVIDENCE DENIED MR. WALLACE THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT TWO
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO REQUEST A CHARGE ON CROSS-RACIAL IDENTIFICATION.
POINT THREE
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT TO PROSECUTORIAL MISCONDUCT DURING SUMMATION.
POINT FOUR
ALL CLAIMS IN MR. WALLACE'S PETITIONS AND BRIEFS ARE INCORPOATED IN THIS APPEAL.
II.
Defendant's pro se petition assertions were addressed by the PCR judge and we affirm as to those contentions substantially for the reason set forth in her opinion. We note that the PCR judge considered each argument raised by defendant in his pro se filing and reached the proper conclusions in denying defendant's PCR petition. In reviewing the other three points raised by defendant, we also affirm for the reasons expressed by the PCR judge in her opinion. We briefly add the following comments.
"[I]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." State v. Nunez-Valdez, 200 N.J. 129, 138 (2009) (quotation and citation omitted). New Jersey courts have adopted the Strickland two part test to establish ineffective assistance of counsel: "the defendant must show that '[defense] counsel's performance was deficient;' and . . . 'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 138-39 (quoting State v. Preciose, 129 N.J. 451, 463-4 (1992)); see also State v. Fritz, 105 N.J. 42, 58 (1987). When a claim of ineffective assistance of counsel is raised, the PCR process should begin anew if "the defendant's post-conviction relief attorney entirely failed to subject the prosecution's case to meaningful adversarial testing . . . [and] the attorney's representation of the defendant amounts to no representation at all[.]" State v. Velez, 329 N.J. Super. 128, 135 (App. Div. 2000).
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).
We review ineffective assistance of counsel (IAC) claims de novo. State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). "Assessing IAC claims involves matters of fact, but the ultimate determination is one of law and . . . '[a] trial court's interpretations of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (alteration in original)).
Courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment" when reviewing such claims. Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" State v. Castagna, 187 N.J. 293, 314-15 (2006) (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). A court will not overturn an otherwise valid conviction "'merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314).
Defendant argues his trial counsel was ineffective because counsel was unsuccessful in his pretrial request for a Wade hearing and in effect admitted that there was nothing impermissible in the out-of-court identification procedures. Defendant points to David Ortiz's trial testimony where Ortiz stated he was shown a group of pictures, rather than one at a time as represented in pretrial discovery. The PCR judge in analyzing the display of the photo array concluded that "[b]ecause the method employed in Galiano is nearly identical to that used with the witness Ortiz, the Court concludes that the method was not impermissibly suggestive; and therefore no Wade hearing was required." The PCR judge further determined that the other witnesses were not subjected to impermissible suggestiveness. We note that three witnesses identified defendant as the person who shot the victim, and two of them had known defendant for many years. David Ortiz, who knew defendant for five to seven years, stated, "He took his gun out of his waist, and shot [the victim] in the stomach and then in the head." Terrence Matthews, who had known who defendant was for three or four years, identified defendant as the shooter. Finally, Muneerah Munoz was 100% positive that defendant was the shooter.
United States v. Wade, 388 U.S. 218, 240, 87 S. Ct. 1926, 1939, 18 L. Ed. 2d 1149, 1164-65 (1967).
State v. Galiano, 349 N.J. Super. 157, 162 (App. Div. 2002).
The Supreme Court recently revised the identification procedures in State v. Henderson, 208 N.J. 208, 288-93 (2011). However, the Court stated that the holding should apply to "future cases only." Id. at 302; accord State v. Joseph, No. A-5651-09 (App. Div. June 4, 2012) (slip op. at 21 n.5).
5. The fact that an identifying witness is not of the same race as the perpetrator and/or defendant, and whether that fact might have had an impact on the accuracy of the witness's original perception, and/or the accuracy of the subsequent identification. You should consider that in ordinary human experience, people may have greater difficulty in accurately identifying members of a different race.
[Model Jury Charge (Criminal),
"Identification: In-court and Out-of-court Identifications," (June 2007).]
Additionally, counsel was not ineffective for failing to request a cross-racial identification charge with regard to Oritiz's identification of defendant. Cross-racial identifications occur when a witness is requested to identify an individual of another race. State v. Walker, 417 N.J. Super. 154, 159 (App. Div. 2010). Given that Ortiz had known defendant for five to seven years, and given the corroborating evidence, it was not ineffective for counsel to fail to request the charge.
On direct appeal, defendant argued that the prosecutor had inappropriately vouched for the State's witnesses at trial during summation. Id. at 21. Defendant's trial counsel did not object during the prosecutor's summation, and we evaluated this argument under the plain error standard. Id. at 22. We rejected defendant's contention, finding that the prosecutor's comments "during summation did not amount to improper personal vouching for the credibility of the witnesses." State v. Wallace, supra, slip op. at 24. In his PCR petition, defendant asserted that his trial counsel was ineffective for failing to object to the prosecutor's comments. Judge Davidson denied defendant's argument, noting that this court had already adjudicated the underlying claim on direct appeal. See State v. Johnson, 216 N.J. Super. 588, 617 (App. Div.) cert. denied, 107 N.J. 647 (1987). We agree.
Defendant raises two additional issues in his supplemental brief for our consideration:
POINT I
DEFENDANT WAS SUBJECTED TO THE CONSTRUCTIVE DENIAL OF PCR COUNSEL WHICH DEPRIVED HIM OF THE SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND PREVENTED A FAIR PRESENTATION OF VIABLE CONSTITUTIONAL CLAIMS THEREFORE THE ORDER DENYING THE PCR SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW PCR HEARING ON THOSE CLAIMS.
POINT II
TRIAL COURT ERRED IN FAILING TO CONDUCT A HEARING AND MAKE FACTUAL FINDINGS, REQUIRED BY MONROE V. UNITED STATES, ON HIS PREHEARING REQUEST FOR NEW COUNSEL.
We find defendant's two additional contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We add this observation. PCR counsel effectively advocated on behalf of defendant as evident by his presentation to the PCR judge, as well as the three briefs he filed which raised numerous issues on behalf of defendant.
We conclude that defendant's PCR claims failed to meet the standards enunciated in Strickland.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION