January 20, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY SNOWDEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-07-2546 and 03-09-3175.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2009
Before Judges Axelrad, Fisher and Sapp-Peterson.
In this appeal, we consider, among other things, whether defendant's trial attorney was ineffective because he failed to seek a Wade*fn1 hearing regarding an out-of-court identification made during a showup. Although we reject the trial judge's determination that counsel's choice not to seek a Wade hearing in this instance represented "a professionally reasonable strategy," we agree that the judge's reliability findings reveal that defendant cannot demonstrate a deprivation of his constitutional right to the effective assistance of counsel.
At the conclusion of a jury trial, defendant was convicted of first-degree robbery and other related offenses. After all appropriate mergers, defendant was sentenced to a fifteen-year prison term with an 85% period of parole ineligibility and other concurrent prison terms.
In his direct appeal, defendant argued that his trial attorney was ineffective by failing to seek a Wade hearing with regard to an out-of-court identification made at a showup; he also urged that he was deprived of a fair trial because of prosecutorial misconduct. In affirming, we agreed that the prosecutor exceeded the bounds of propriety by suggesting during her cross-examination of defendant that he was tailoring his testimony and by making statements in her summation that were not supported by evidence in the record; we chose not to consider the Wade argument on its merits, leaving it to future consideration by way of a petition for post-conviction relief. State v. Snowden, No. A-0329-05T4 (App. Div. April 17, 2007) (slip op. at 4). The Supreme Court denied defendant's petition for certification. 192 N.J. 72 (2007).
Defendant filed a petition for post-conviction relief (PCR), wherein he reprised his Wade contention and also argued his trial attorney neglected to request fingerprinting of the weapon used during the robbery. The trial judge did not conduct an evidentiary hearing; instead, after hearing oral argument, the judge issued a written decision rejecting both arguments. In this appeal of the denial of PCR, defendant again argues the ineffectiveness of his trial attorney for the reasons raised in the trial court. He also argues that his PCR counsel was ineffective by failing to raise the trial attorney's failure to object to "multiple instances of prosecutorial conduct." We reject these arguments and affirm.
In our earlier opinion, we described the commission of the offenses in question in the following way:
[O]n May 9, 2004, Marcia Jarret was walking on Prospect Street in East Orange when the female driver of a motor vehicle, which had pulled up alongside, summoned her. Defendant was later identified by Jarret as the vehicle's male passenger.
When Jarret bent toward the driver's window, assuming the driver was seeking directions, defendant told her to turn over her jewelry and money. As Jarret started walking away, defendant said: "you think I'm playing with you?" And, when Jarret turned around, she saw that defendant was holding a gun; defendant then said, "come here or else I'll give you one." Defendant acceded to this demand and defendant took from Jarret three gold necklaces, a watch and a bracelet.
As the vehicle drove away, Jarret memorized the license plate numbers, and, as she continued walking toward Bloomfield, Jarret encountered a person from whom she borrowed a pen and paper to write down the license plate number. When she arrived at the Bloomfield Police Station, Jarret spoke about what had occurred. The Bloomfield police then drove her to the East Orange Police Station because the crime had occurred in East Orange. [Slip op. at 1-2.]
Jarret then described for Detective Green of the East Orange Police Department the crime and her assailants. She said the driver was a black female with "twists in her hair and shells at the end of it." The passenger, according to Jarret, was a black male approximately five-feet-nine-inches tall and weighing approximately 170 pounds. She said the passenger was wearing a black leather jacket and had a "thin beard with a goatee [and a] mustache."
While Jarret was providing this and other information to Detective Green, the vehicle she described was stopped by police in East Orange. Learning this, Detective Green directed that the suspects be transported to the police station so that Jarret could make an identification.
When they arrived at the station, defendant and Yolanda Buckhana were handcuffed and seated in the back of separate police vehicles. Detective Green and Jarret were waiting outside the station. Detective Green asked Jarret whether she recognized the suspects. Jarret looked into the window of each vehicle and, according to Detective Green, "immediately" identified Buckhana as the driver and defendant as the passenger. He testified that Jarret did not "linger" or deliberate; she "looked at them and said, 'that's them,' and stepped back."
Jarret was then driven to the location of the vehicle used by defendant and Buckhana where it remained after being stopped by the police. Jarret immediately identified the vehicle as that which was utilized by defendant and Buckhana during the robbery. She also positively identified a shotgun, the black leather jacket worn by the male passenger and her stolen watch, which were all found in the vehicle.
Detective Green returned to the police station where he advised defendant of his Miranda*fn2 rights, which defendant waived. According to Detective Green, defendant then gave responses to his questions, which Green typed into a computer and printed. Detective Green testified that defendant read and signed the statement. The statement contains defendant's acknowledgement that he and Buckhana committed the robbery of Jarret.
As we have indicated, defendant argues in this appeal that his trial attorney should have sought a Wade hearing in order to prove that the out-of-court identification was the product of highly suggestive police procedures and unreliable. Although we reject the contention that a decision not to pursue a Wade hearing in such circumstances represents a reasonable strategy, the judge's findings regarding the reliability of the identification demonstrate that defendant would have been unsuccessful at a Wade hearing. In explaining the basis for our decision, it is helpful to first consider the constitutional principles applicable to identifications made at showups.
The due process guarantees of our federal and state constitutions, at their very core, require a criminal justice system designed to generate reliable determinations. As a result, due process principles prohibit the use of identification evidence produced by events that are "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968), because, in the final analysis, a conviction that "rests on a mistaken identification" constitutes "a gross miscarriage of justice," Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed. 2d 1199, 1204 (1967).
The "vagaries of eyewitness identification," as explained by Justice Brennan in his opinion for the Court in Wade, are "well-known," and "the annals of criminal law are rife with instances of mistaken identification." 388 U.S. at 228, 87 S.Ct. at 1933, 18 L.Ed. 2d at 1158. "A major factor" contributing to mistaken identification has been "the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." Ibid.
Since eyewitness testimony plays an influential role in many criminal prosecutions, implicit in the applicable legal principles is a heightened concern about the reliability of such evidence. This deepening concern is warranted particularly because, as our Supreme Court has recognized, empirical studies now suggest that juries "tend to place great weight on eyewitness identifications, often ignoring other exculpatory evidence," State v. Cromedy, 158 N.J. 112, 120-21 (1999), and because the degree to which a witness expresses confidence in an identification also tends to be unduly valued by juries, State v. Henderson, 397 N.J. Super. 398, 415 (App. Div. 2008), remanded, 2009 N.J. LEXIS 45 (2009). As summarized by the Supreme Court, "[e]yewitness identification can be the most powerful evidence presented at trial, but it can be the most dangerous too." State v. Delgado, 188 N.J. 48, 60 (2006). This understanding has caused the Court to conclude that misidentification is now "the single greatest cause of wrongful convictions in this country." Ibid. As a result, "our courts are obligated to utilize great care in the application of the governing principles in order to prevent an accused from being convicted on the basis of unreliable eyewitness evidence." State v. Henderson, supra, 397 N.J. Super. at 416.
The showup has proven to be one of the most troubling types of identification techniques used by police. In a series of cases, starting with the 1967 decisions in United States v. Wade and Stovall v. Denno, the Supreme Court developed what is known as the "totality of the circumstances" test as the means for guarding against this potentially misleading type of evidence.
In Stovall v. Denno, supra, 388 U.S. at 295, 87 S.Ct. at 1969, 18 L.Ed. 2d at 1202, decided the same day as Wade, the Court considered the suggestiveness of a handcuffed defendant being brought to a hospital room to be viewed by a gravely-injured victim. The Court held that this process was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny the defendant due process of law, but was necessary because the only person who could exonerate the defendant was in the hospital, the hospital was not far from the jail, and no one knew how long the victim would live. Id. at 302, 87 S.Ct. at 1972, 18 L.Ed. 2d at 1206.
In 1972, the Court considered whether a showup different from that considered in Stovall v. Denno was unnecessarily suggestive and whether that fact alone warranted exclusion of identification evidence. In Neil v. Biggers, 409 U.S. 188, 194-95, 93 S.Ct. 375, 380, 34 L.Ed. 2d 401, 408-09 (1972), a station house showup occurred seven months after the crime and was thus quite distinguishable from the exigent circumstances presented in Stovall, where the showup immediately followed the crime and the victim was gravely injured. The Court held that this lapse of time "would be a seriously negative factor in most cases," id. at 201, 93 S.Ct. at 383, 34 L.Ed. 2d at 412, but that the test remained "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive," id. at 199, 93 S.Ct. at 382, 34 L.Ed. 2d at 411.
And, in seeking to resolve the nagging uncertainty in the lower federal courts about the application of the "totality of the circumstances" test in the five-year interval since Neil v. Biggers, the Court emphasized in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977), that "reliability is the linchpin." The Court held that the factors to be considered in ascertaining the reliability of an identification -- "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" -- had to be weighed against "the corrupting effect of the suggestive identification itself." Ibid. This remains the test required by the federal constitution. It was adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988).
In State v. Herrera, 187 N.J. 493, 499-500 (2006), our Supreme Court was asked to depart from the thirty-year old Manson rule and invited to hold that the state constitution imposed more stringent limits on the use of identification evidence derived from showups. The defendant in Herrera urged the Court to "confine the use of showups to circumstances where they are absolutely necessary and are conducted in a fair manner." Id. at 500. There, the victim was seated in his car waiting for traffic to pass when approached by a man on a bicycle who asked for money and then assaulted him. When the victim regained consciousness, his car was gone. The defendant was apprehended, and the police brought the victim to a hospital emergency room where the defendant was present; he entered the emergency room, looked around and identified the defendant, who was seated on a hospital bed six feet away. Id. at 497. The only other persons in the room were police officers and nurses. Ibid.
The defendant argued in Herrera that "the fallibility of eyewitness identifications cannot be ignored and that current studies of post-conviction DNA exonerations show that a large majority of those wrongful convictions involved eyewitness error." Id. at 499. In considering whether to adopt a standard that would bar the use of evidence of identifications resulting from showups, the Court recognized that other states have deviated from the Supreme Court's federal jurisprudence regarding showups. Id. at 500. The Court, however, observed that the defendant failed to present this "scientific evidence" until the matter was on appeal, id. at 499, and concluded that "[u]ntil . . . convinced that a different approach is required after a proper record has been made in the trial court," it would continue to adhere to the Manson approach, id. at 504.
In State v. Comer, 194 N.J. 186, 200-02 (2008), the Court again found it inappropriate to revisit the application of the Manson test for purposes of determining whether an out-of-court identification procedure passed state constitutional muster when the issue was not raised until the filing of supplemental briefs in the Supreme Court. Two members of the Court again urged, as they had in Herrera, supra, 187 N.J. at 528 (Albin, J., dissenting), that the time had arrived to adopt a rule that precludes "highly suggestive identification procedures . . . except when necessary due to an exigency." 194 N.J. at 211 (Albin, J., concurring).
Most recently, as questions continued to mount regarding the viability of the Manson/Madison standard, the Court remanded a matter for the development of such a record; the Supreme Court's February 26, 2009 order in Henderson directed the trial court to "consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence." State v. Henderson, supra, 2009 N.J. LEXIS 45.
Notwithstanding the increasing likelihood of this State's adoption of a different approach in ascertaining reliability in light of the Court's February 26, 2009 order in Henderson, we remain bound by the Manson/Madison "totality-of-the-circumstances" test. This test requires that a court first "ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. In determining reliability, a court must consider 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. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed. 2d at 154.]
Showups, of course, are inherently suggestive. State v. Herrera, supra, 187 N.J. at 504 (holding that showups are "by definition . . . suggestive because the victim can only choose from one person, and, generally, that person is in police custody"). Here, defendant was handcuffed and seated alone in the back of a police vehicle when Jarret made the identification. Jarret also understood that the purpose of her walking outside of the station with Detective Green to await the arriving police vehicles was because the police had captured the suspects she had described. This, too, would have a substantial impact upon the reliability of the out-of-court identification. See Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 1129, 22 L.Ed. 2d 402, 407 (finding suggestive the repeated statements of the police to the witness that "[t]his is the man"); State v. Delgado, supra, 188 N.J. at 60 (holding that "the dialogue between a law enforcement officer and a witness may be critical to understanding the level of confidence or uncertainty expressed in the making of an identification and whether any suggestiveness, even unconsciously, seeped into the identification process").
In light of the constitutional principles that apply to the out-of-court identification that occurred here, we consider whether defense counsel's failure to request a Wade hearing constituted a deprivation of the federal and state constitutional rights to the effective assistance of counsel.
When a defendant claims a deprivation of the effective assistance of counsel, courts generally apply the following test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984).]
This same two-prong test is applied when considering whether an accused has been deprived of the state constitutional promise of the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 58 (1987). However, there are also instances where the deprivation is so significant that there is no need to consider the second prong. In examining the first prong's application here, we thus consider whether counsel's failure to request a Wade hearing in these circumstances is such a serious error as to negate the need to consider the second prong of the Strickland/Fritz test.
As for the first prong, the record reveals substantial evidence of a significant error by counsel. Despite the suggestiveness of the showup, defense counsel simply failed to seek a Wade hearing, leaving uncontested the admissibility of the out-of-court identification. This omission fell below "the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed. 2d 763, 773 (1970). Just as one would expect a doctor, during a routine physical, to listen to the patient's heart with a stethoscope or take a reading of the patient's blood pressure, so too should the demands of our profession require that, in the circumstances presented here, an attorney seek the suppression of an identification that resulted from what is unquestionably an inherently suggestive showup.
The same day the Court decided Strickland it also decided United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed. 2d 657, 668 (1984), holding there is a presumption of unreliability in the results of a trial if counsel "fails to subject the prosecution's case to meaningful adversarial testing." In that circumstance, a defendant need make "[n]o specific showing of prejudice." Ibid. The language of Cronic strongly suggests that an attorney's failure to seek a Wade hearing when the police procedure was impermissibly suggestive is the type of attorney error that does not require proof of the second prong of the Strickland test.
However, in Cronic's wake, lower federal courts adopted a rather limited view of what constitutes a per se deprivation, revealing a "reluctan[ce] to extend a rule of per se prejudice in any new direction." Tippins v. Walker, 77 F.3d 682, 686 (2d Cir. 1996). In finding a new ground for application of Cronic -- when defense counsel is not even a member of the bar -- the Tippins court admittedly extended the per se rule "[w]ithout enthusiasm." Ibid. Because there is no evidence that our Supreme Court would view Cronic more expansively than have the lower federal courts, see, e.g., State v. Allegro, 193 N.J. 352, 368-69 (2008); State v. Fisher, 156 N.J. 494, 500-01 (1998); State v. Savage, 120 N.J. 594, 616-17 (1990), we are bound to conclude that defendant was required to meet the second prong of the Strickland/Fritz test.
The second prong requires defendant's showing of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The showup here was impermissibly suggestive, so the first part of the Manson/Madison test would have been proven at a Wade hearing. Had there been a Wade hearing, the admissibility of the out-of-court identification would have turned on the test's second part -- the identification's reliability as weighed in light of the corrupting influence of the suggestiveness of the identification procedure. Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed. 2d at 154; State v. Henderson, supra, 397 N.J. Super. at 415.
In denying the PCR petition, the judge described his view of the evidence, which he heard during the course of the trial, that would have been presented at the Wade hearing had there been one. In his written opinion, the judge accurately described the Manson/Madison test and, in applying that test, found Jarret's identification of defendant to be reliable, stating:
First, Jarret had a viewing time of at least two minutes at a distance of approximately two feet in daytime lighting. Second, as a victim of a robbery, Jarret could not have been anything but extremely attentive to the appearance of the man pointing a gun at her. Third, Jarret's description of [d]efendant did not differ drastically from [d]efendant's own description of himself at trial. The slight discrepancies in the physical description are understandable because Jarret initially viewed [d]efendant while he was seated in a vehicle three to four hours before the showup and changes in attire and facial grooming could have occurred during that time. Fourth, Jarret testified unequivocally about her identification of [d]efendant, stating "You're not going to forget the face of the person who holds a gun on you. You're not going to forget it." Finally, Jarret confronted [d]efendant no more than four hours after the crime which the court finds is with a reliable time period. [Footnote and citation omitted.]
In a footnote, the judge discussed the one circumstance that favors defendant's claim of unreliability. That is, Jarret described defendant as having a "thin goatee, five feet six inches tall, 170 pounds, and wearing a leather jacket whereas [d]efendant described himself as five feet three inches tall, weighed 200 pounds, had a thin moustache, with a blue do-rag on his head." As explained in the judge's findings, Jarret made all her observations -- during the robbery and during the showup -- while defendant was in a seated position. As a result, the differences between defendant's actual height and weight and Jarret's descriptions are not very consequential. And the judge also recognized that the other changes in defendant's appearance could have been made by defendant during the interval between the robbery and the showup. The record fully supports the judge's findings and, in light of those findings, we conclude that a Wade hearing would not have produced a result beneficial to defendant.
To summarize, we do not agree with the trial judge that counsel's decision not to seek a Wade hearing constituted "a professionally reasonable strategy." Certainly courts should not second-guess the tactical decisions of counsel. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694 (holding that judicial scrutiny of counsel's performance "must be highly deferential" and must avoid viewing the performance under the "distorting effects of hindsight"); State v. Norman, 151 N.J. 5, 37 (1997). The record, however, neither reveals nor suggests a sound tactical reason for counsel's failure to seek a Wade hearing; nor can we imagine one.*fn3 Even if defense counsel felt that the Wade application would likely prove unsuccessful, there remained an advantage in seeking the hearing if for no other reason than to observe the witness's testimony in advance of trial -- in other words, preview for the defense the witness's direct examination. Accordingly, we conclude that counsel's failure to request a Wade hearing met the requirements of the first prong of the Strickland/Fritz test.
However, the judge's fact findings in his PCR decision are based upon the testimony he heard at trial, which is what he likely would have heard at a Wade hearing. The judge's finding that the out-of-court identification was reliable negates a finding in defendant's favor on the second prong of the Strickland/Fritz test. The judge applied the correct legal principles and his fact findings as to what he would have found had a Wade hearing occurred are entitled to our deference.
We find insufficient merit to warrant discussion in a written opinion in defendant's argument that his trial attorney was ineffective for failing to seek the fingerprinting of the rifle. R. 2:11-3(e)(2).
We also find insufficient merit to warrant discussion in a written opinion in defendant's argument that his PCR attorney was ineffective because he failed to argue in the trial court that defense counsel was ineffective for failing to object to the prosecutor's cross-examination and summation, ibid., but we add the following brief comments on that point.
In our earlier opinion, we agreed with defendant's argument that the prosecutor exceeded proper bounds of advocacy in accusing defendant of tailoring his testimony in violation of the principles described in State v. Daniels, 182 N.J. 80, 98-99 (2004),*fn4 and that her summation included statements unsupported by the evidence.*fn5 State v. Snowden, supra, slip op. at 4-10.
Defendant's trial attorney did not object to any of these improprieties as he should have. However, in deciding the direct appeal, we concluded that these circumstances were not capable of producing an unjust result -- a determination fatal to defendant's argument that his trial attorney's failure to object met the second prong of the Strickland/Fritz test. Although highly objectionable, the prosecutor's improprieties constituted only brief departures from permissible bounds of advocacy and were not prejudicial to defendant's right to a fair trial when viewed in the overall context of the trial.