May 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICKEY WEAVER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-03-531.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2008
Before Judges Coburn and Grall.
Defendant Rickey Weaver appeals from an order denying his petition for post-conviction relief. A jury found defendant and his co-defendant, Spencer Lee Horne, guilty of first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4e. We affirmed defendant's conviction and sentence on appeal, and the Supreme Court denied his petition for certification. State v. Weaver, No. A-2166-02 (App. Div. Dec. 15, 2003), certif. denied, 180 N.J. 455 (2004). Horne, who had not appeared for the joint trial, won a reversal of his conviction on appeal based on a "flight" instruction that authorized the jurors to infer Horne's consciousness of guilt from his absence at trial. State v. Horne, 376 N.J. Super. 201, 212, (App. Div.), certif. denied, 185 N.J. 264 (2005). After the Supreme Court denied certification in Horne, defendant filed his petition for post-conviction relief.
In his petition, defendant contended that he was deprived of effective assistance of trial and appellate counsel because neither of his attorneys objected to the jury instruction that resulted in the reversal of Horne's conviction. The trial court denied the petition on the ground that the instruction at issue in Horne clearly related to co-defendant Horne alone. The court further found that the jurors had been directed to consider the question of defendant's guilt separately from the question of Horne's guilt. Accordingly, the trial court determined that neither of defendant's attorneys erred by failing to question an instruction that could not have had any impact on the verdict against defendant. See State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984)); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the standard for measuring ineffective assistance enunciated by the Supreme Court in Strickland); see also State v. Melendez, 129 N.J. 48, 52, 60 (1992).
Defendant raises the following issues on appeal:
I. THE PCR COUNSEL WAS INEFFECTIVE BECAUSE THE PCR COUNSEL FAILED TO ARGUE AS ONE OF THE POINTS THAT THE ORIGINAL TRIAL COUNSEL WAS INEFFECTIVE FOR NOT FILING A WADE MOTION CHALLENGING THE OUT OF COURT IDENTIFICATION OF THE APPELLANT. (NOT RAISED BELOW).
II. THE TRIAL COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
III. THE PCR TRIAL COURT SHOULD HAVE GRANTED THE APPELLANT'S MOTION FOR POST-CONVICTION RELIEF BASED UPON THE ERRONEOUS JURY CHARGE CONSISTENT WITH THE APPELLATE COURT'S DECISION IN THE CO-DEFENDANT'S CASE.
We reject the arguments raised in Points II and III substantially for the reasons stated by the trial court.*fn1 There are additional reasons, which we discuss below.
Defendant's claims are based on a misunderstanding of the record. His trial counsel, contrary to defendant's assertion, objected to the flight charge. In response, the court gave a supplemental limiting instruction. The court explained:
Just one last thing I want to make very clear, and then you'll go in to start deliberating. I gave you what's called the flight charge as to Mr. Horne. That doesn't infer anything as to Mr. Weaver. When you're considering flight and whether or not there's consciousness of guilt as to Mr. Horne, independent of any accomplice situation, it doesn't reflect on Mr. Weaver.
There is no question that this instruction eliminated any potential for defendant to raise a successful claim of error on appeal. Melendez, supra, 129 N.J. at 52, 60.
Defendant's claim that the trial court failed to address the merits of his claim and rested its decision on Rule 3:22-4 alone is also inconsistent with the record. As we have indicated, the trial court carefully reviewed the record and concluded that the instruction given did not apply to defendant.
Finally, it is clear that an evidentiary hearing on the merits of this petition was not required. The issue raised -- whether defendant's appellate counsel provided constitutionally deficient representation by failing to claim error based on the instruction relevant to Horne -- did not depend upon facts outside the record or involve disputed facts. See State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); State v. Preciose, 129 N.J. 451, 462-63 (1992)).
In Point I of his brief on appeal, defendant raises an issue not raised below. He argues that his post-conviction-relief counsel was ineffective because he did not claim that trial counsel was ineffective for failing to seek a hearing on the admissibility of the victim's out-of-court identification. State v. Herrera, 187 N.J. 493, 503-04 (2006). This court generally does not address a claim of ineffective assistance of counsel that was not raised by way of petition for post-conviction relief in the trial court. Preciose, supra, 129 N.J. at 460. Nonetheless, because this claim does not involve an allegation based on evidence that lies outside the trial record, we can address it.*fn2 Ibid.
The following facts are pertinent. After midnight on the morning of December 30, 2001, Michael Guest was walking toward a pizzeria in Jersey City. He noticed a car, being driven without its headlights on, pull over and stop. The car was black and either an '85 Grand Marquis or an '85 Crown Victoria. The passenger, later identified as defendant, got out and approached Guest. Defendant was holding what Guest thought was a gun and told Guest to give him everything. The driver, later identified as Horne, also got out of the car. They looked in the exterior pockets of Guest's coat, lifted his shirt and looked in his socks. They found nothing and drove away.
Guest went to his home, around the corner, and called the police. He gave the police a description of the car and the men. Both were black, and defendant, the passenger, was taller than the driver. He further described the passenger, defendant, as wearing a black jacket, blue jeans and a knitted hat. Guest told the police that he thought the man had a .22 caliber handgun.
Police officers came to Guest's home. While he was being interviewed, the officers received a dispatch. According to Guest, they asked him if he "wanted to go identify the people who tried to rob" him.
Guest was taken to the spot where Officer Goodman had stopped a black Grand Marquis that was occupied by two men. Defendant was in the passenger seat, and Goodman saw him bend down as he approached the car. Defendant was taller than the driver and wore a knitted hat. His jacket was dark blue. When Goodman looked into the car, he saw what he thought was the handle of a gun. He picked it up and realized it was a toy.
By the time Guest and the officers arrived at the site of the stop, a crowd had gathered. The view was obstructed and Guest could see nothing. Guest agreed to go to the police station with the officers. According to Guest, the officers said, "we'll see if you can identify the guys when we bring them in."
The officers parked across the street and a little bit away from the station. When defendant and Horne got out of a police car, Guest said, "there's the two guys that tried to rob me." He later identified the car and the gun.
There is no evidence in the record provided on appeal that indicates Guest was told anything about the stop before he identified defendant and Horne. Guest was shown the gun and the car after he made the identifications.
Where a question about the admissibility of an identification is raised, the trial court must determine "whether the identification procedure was impermissibly suggestive." Herrera, supra, 187 N.J. at 503. Even when the procedure employed was impermissibly suggestive, the court must determine whether the identification was "nevertheless reliable" under the "totality of the circumstances." Id. at 504. That determination is made by "weighing the suggestive nature of the identification against the reliability of the identification." Id. at 503-04. Factors weighed against the "corrupting effect" of the impermissibly suggestive procedure include the "'opportunity of the witness to view the criminal at the time of the crime, the witness' 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.'" State v. Adams, 194 N.J. 186, 204 (2008) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977)).
"[S]tanding alone a showup is not so impermissibly suggestive to warrant proceeding to the second step." Herrera, supra, 187 N.J. at 504; see State v. Romero, 191 N.J. 59, 76-77 (2007) (noting that each showup must be evaluated on its facts). Bringing a defendant into a victim's view is "not the type of showup that is fraught with the worries typically generated by a suggestive police-initiated showup." Romero, supra, 191 N.J. at 78.
Even if we were to conclude that the procedure was impermissibly suggestive due to statements made by the officers and the location of the showup, the circumstances suggesting the reliability of the identification clearly outweigh the suggestive nature of the procedure. Guest was in close proximity to defendant throughout the criminal episode and identified him shortly thereafter. Defendant was found in possession of the gun, which Guest later identified, while seated in the passenger seat of the car, which Guest later identified. Except for a difference in jacket color, Guest's description of defendant, while general, was consistent with defendant's appearance at the time of his arrest. Under these facts, an argument to exclude the identifications based on impermissibly suggestive police procedures could not have prevailed.
Defendant was not deprived of constitutionally adequate representation on his petition for post-conviction relief because the lawyer did not claim trial counsel was ineffective for failing to seek exclusion of this identification. Post-conviction-relief counsel could not have shown deficient performance based on failure to raise a claim so clearly lacking in merit.