On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 97-01-0016.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fisher.
In this appeal, defendant argues that his post-conviction relief petition, which asserted a denial of his Sixth Amendment right to the effective assistance of counsel, was erroneously denied. We agree defendant was entitled to an evidentiary hearing regarding his attorney's failure to seek a Wade*fn1 hearing concerning the minor victim's identification of him at a showup, and we remand for that and other purposes.
Defendant was charged with second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
The jury heard testimony during a three-day trial in 1998 from G.B., who was then ten-years old. G.B. described how she and her younger sister were playing on a porch near her apartment in Wildwood, on December 10, 1996, when an unknown man walked up, "put his hand down [her] pants," and said something she could not remember. G.B. yelled "stop," and ran inside to her mother. G.B.'s mother testified that when G.B. came running to her after yelling "stop" it was approximately 5:30 to 6:00 p.m. G.B.'s mother testified that outside, at that time, it was "pretty dark."
The police were called within minutes.*fn2 Before their arrival, G.B. gave her mother a description of the man who touched her. According to the mother's testimony, G.B. said "he had dark hair with like a wave in the back. He had a mustache. He was not fat but she said he looked like her uncle [because] his face was a little chunky." G.B. described to her mother that the man "was a little bit shorter than her dad," who is six feet tall, and that the man was wearing jeans and a "black" or "dark" jacket with "the zipper" up, and with "fur around the collar."
Before the police arrived, G.B.'s mother, uncle and grandfather drove around the neighborhood but were unable to locate the man described by G.B. Officer McShaffry was the first to arrive at G.B.'s home; according to his testimony, he arrived approximately "a minute" after he received the 5:39 p.m. call. G.B.'s mother gave the officer a "maybe 30 seconds, a minute" description of what occurred; he then spoke with G.B. Over the next "minute, a minute and a half at the most," G.B. described for him what occurred and gave a description of the man who accosted her. According to Officer McShaffry, G.B. said he "was a white male who had black hair, medium build, about my height, somewhere close to my height*fn3, [who] was wearing a pair of blue jeans, a blue jacket and she went on to say that the blue jacket had a fuzzy collar that surrounded the jacket"; the jacket "was zipped up like further [than] normal like up to the neckline." G.B. also told Officer McShaffry that the man departed in a westward direction "towards the bay." Officer McShaffry then left the scene, knowing that another officer was on the way to G.B.'s home.
Officer James Nanos arrived as Officer McShaffry was leaving.*fn4 At that point, Officer McShaffry received a radio transmission from Officer Nanos, who indicated he saw an individual, fitting the description given by the child, walking toward the bay from the area of G.B.'s home. Officer McShaffry described what happened next:
I observed a white male. He was walking away from my position. He was approximately five foot ten. He had blue jeans on. He had a dark blue jacket and a black fuzzy collar.
I noticed right away that the subject walking away from [me] looked back and observed me in the marked police car and he began to walk a little faster. And then he was like into a slow jo[g]. He wasn't running. He was walking faster th[a]n when he first saw me.
I made the right, turning onto New Jersey Avenue. I knew the next, next property over was a Wawa with a parking lot. I pulled into the Wawa parking lot and went past the suspect, the subject at first and I exited my car. As I got out of my car, I approached the subject and began to speak to him.
G.B. and her mother were still at home when Officer Nanos, who was still with them, was advised by radio that a suspect had been apprehended. As G.B. testified, "they said . . . they caught him -- they think they have him."
G.B. and her mother were brought to the Wawa where defendant was in police custody. G.B. testified on direct that she identified the man under arrest at the Wawa as the man who touched her. On cross-examination, G.B. testified that when she first saw defendant at the Wawa she told the police she was "not too sure" whether he was the man who touched her. However, she testified that he was not then facing forward. The police asked her if she wanted to hear him speak and with her consent they had defendant say something over the radio. G.B. testified that "when I heard [his voice], I was thinking about what it sounded like and then I was sure it was him." She also testified that defendant turned around so she could "see his whole face," and then she was "sure" that was the man who touched her.
In addition, during her testimony, G.B. identified a photograph of defendant as depicting the man who touched her. However, when asked to make an in-court identification, G.B. said she was "not sure."*fn5
The jury was shown a videotaped interview of G.B. that was conducted by Investigator William Kirkbride of the prosecutor's office on December 11, 1996. In addition, the State presented the testimony of Detective Kenneth Gallagher, who interrogated defendant after his arrest. Detective Gallagher testified that he advised defendant of his Miranda*fn6 rights, which defendant voluntarily waived. The interview started at 7:25 p.m. According to Detective Gallagher, defendant told him that he arrived in Wildwood by bus at approximately 5:30 p.m. and spent approximately twenty minutes in a nearby McDonald's fast food restaurant. Defendant, who stated he went to Wildwood to meet a female friend, then described the route he walked before being apprehended. He denied being on the street on which G.B. lived and would not identify the female friend to whom he referred.
After approximately two hours of similar questioning and similar responses, Detective Gallagher then described what happened next:
A: The interview continued. He remained with the story. I tried to get the information about the person that he was trying to visit or the location where that person lived but he refused to give it to me.
A: As the interview continued with him, he began to slump over in the seat, slide down a little bit, his head faced towards the floor, his eyes were closed and he began to cry.
Slumps down, head down, eyes closed, he begins to cry. He started to express remorse for the victim. He told [me] he was sorry for what the victim had [sic] and what had occurred to her.
Q: So at this point now, he's crying and saying he's sorry for the victim?
Q: Does he then at that point, change his [description of his] direction of travel?
A: What he says to me is that I asked him if he had been on the porch of the victim or had any contact with the victim? He started to nod his head in an affirmative matter, up and down. He continued to cry as he did so.
A: He basically says, just give me the confession, I'll sign it. I don't want -
Q: What was your -- I'm sorry.
A: I don't want to put this little girl through that is ...