February 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VICTOR VASQUEZ A/K/A: JOSE MENDOZA; VICTOR MENDOZA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-08-0657.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Alvarez and Coburn.
Defendant Victor Vasquez was found guilty by a jury of first-degree robbery, N.J.S.A. 2C:15-1a (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count five); and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(4) (count six). Count two, conspiracy to commit robbery, was dismissed by the State prior to trial. Following appropriate mergers, defendant was sentenced on December 14, 2007, to fifteen years in New Jersey state prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one, first-degree robbery. All other sentences were run concurrently to count one, namely four years imprisonment on count three and four years imprisonment on count six.
The facts developed at trial were as follows. At approximately 2:00 a.m. on July 2, 2005, Jaciel Cruz, Miguel Moran and Luis Lopez-Sosa returned to Cruz's apartment in Bound Brook after attending a movie and purchasing some food at a nearby convenience store. As they returned, they saw a group of men*fn1 standing outside of a building next to a bar across the street from them. The group approached; two were concealing something behind their backs. The group asked Moran, Lopez-Sosa and Cruz if they were in a gang, which they denied. A man later identified as defendant then produced a kitchen knife from behind his back and demanded money from the victims. A second member of the group, who was wearing a dark baseball jersey, produced a baseball bat from behind his back. When Cruz refused to turn over his money, defendant tried to stab him and cut Cruz's finger as Cruz attempted to deflect the weapon. Defendant then pointed the knife at Cruz's chest and instructed a member of his group to go through Cruz's pockets. Cruz's wallet and his money were taken, approximately $25 or $30. Defendant searched through Moran and Lopez-Sosa's pockets, taking about $20 or $30 from the latter. Lopez-Sosa, who was punched in the face during the encounter, asked for his wallet back and it was returned to him.
All three victims wore baseball caps: Moran's cap was green and white; Cruz's was black; and Lopez-Sosa's was white. Defendant took the baseball caps from Moran and Cruz, while the man with the baseball bat took Lopez-Sosa's hat. As the assailants began to leave, Moran asked for the hats back. Defendant turned around and slashed at him, but Moran jumped away and the group proceeded up the street.
Cruz dialed 911 from a nearby pay phone. The police arrived, together with an ambulance to treat Cruz for his stab wound. As Cruz was standing on the sidewalk speaking to the officers, he pointed down the street eastward and said, "there's one of them now." Bound Brook Police Officer Peter Romanyszyn looked up and saw a man in a white t-shirt entering the front of an apartment building about a block away. He radioed other officers who were searching the area looking for the suspects and they immediately returned. The victims were directed to remain in Cruz's apartment while the suspects were apprehended.
Patrolmen Vito Bet and Jason Gianotto, Sergeant Richard Colombaroni, and Romanyszyn entered the three-story building where the suspect had been seen. Bet and Gianotto discovered a knife hidden underneath a mat in the foyer. Gianotto and Romanyszyn had reached the second floor when Gianotto heard the sound of a latch unlocking from a nearby apartment and saw a man emerge who matched the description of one of the robbers. After Gianotto detained him, Colombaroni, Bet and Romanyszyn went in and patted down the occupants for weapons. Three other men were arrested, and when additional officers arrived, the apartment was thoroughly searched. Gianotto and Colombaroni entered a back bedroom where two men, fully clothed and lying on a bed over the covers, were pretending to be asleep. Gianotto saw the handle of a bat protruding from underneath, and he testified that the heart of one of the suspects was beating with such force that "you could actually observe [it] beating right through his shirt." These two men were detained as well. The officers subsequently found two baseball caps out on a roof accessible through a window.
At that point, Cruz, Moran and Lopez-Sosa were seated in separate police cars located approximately fifty feet from the building entrance. An officer sat inside with each victim; there was no communication between patrol cars. The officers trained vehicle spotlights on the entrance, and the suspects were brought out individually. As they walked through the door, the victims were asked if they could make an identification. Defendant, the third person escorted from the building, was identified by all three victims as the person who wielded the knife.
Defendant was tried jointly with Juan Merino Rafael and Jose Merino Ruiz. Merino Raphael was found guilty of second-degree robbery and third-degree hindering apprehension. Merino Ruiz was acquitted of all charges, however, he was apprehended by United States Immigration and Customs Enforcement while in jail on unrelated offenses. Three other men were also charged as a result of the incident; Rafael Garcia, Javier Romero and Sergio Lopez. All entered guilty pleas prior to defendant's trial. Garcia received a five-year sentence on August 17, 2007. An I.N.S. detainer issued against Romero while he was in custody awaiting sentencing on an unrelated indictment. Lopez failed to appear for sentencing on June 22, 2007, and as of November 2007, remained a fugitive.
Prior to trial, Merino Rafael's attorney indicated to the court that in his view there was a "gang component" to the defense; he subsequently requested that the court exclude any references to gang involvement. When the case was reported in a local newspaper, gang involvement had been mentioned in the story. Not having the transcript of jury selection, we do not know if the jury was asked whether the possibility of gang involvement would influence their ability to try the matter fairly. In his preliminary opening instruction, the judge made no mention of the potential of gang involvement. During the trial, defendant's attorney cross-examined Moran in the following fashion:
Q: Okay. What happened next? And by next I mean after Jaciel Cruz got up?
A: That's when they arrived, they spoke to us and asked us if we were part of a gang.
Q: Okay, Mr. Moran, did you get a chance to count the number of people that were there in front of you?
A: Yes, there was one in front of me, the other one stood next to my brother, and the other three were on the side watching us.
Q: Okay, so there were five people in total?
Q: Now, which one of the five people actually asked you whether you were a member of a gang?
A: The one with the knife.
Q: Okay. Did he ask anyone else whether they were members of a gang?
A: No, the question was not directly to me, it was a question addressed to the three of us.
Q: Okay, do you remember the exact question that he asked?
A: No, not exactly.
Q: But you know that it was something about a gang?
Q: Prior to asking you about a gang, did the person with the knife make any comments?
A: I believe so. He told me that they were part of the 18th Street Gang.
Q: Did anyone else make any comments?
Q: Okay, at that point in time, when you were asked about a gang, did you notice a knife?
A: No, they didn't show it yet.
Q: Okay. When this person was asking you whether you were a member of a gang, can you describe to the Court and the members of the jury where were this person's arms and hands?
A: Yes, he had them behind. He had a hand behind him.
Sometime thereafter, counsel for Merino Ruiz moved for a mistrial on the grounds that defendant's attorney's "irresponsible statements" and "gratuitous questions" were prejudicing his client. He subsequently made an application for severance because of defendant's attorney's questions regarding gang affiliation. When the court asked defendant's attorney to explain his line of questioning, he responded:
[Defense counsel]: If any of my questions solicit the truth, if the witnesses can take the stand, and if my questions somehow cause the witnesses to say something that is prejudicial to my clients, but it is the truth, then so be it. This is a court of law. We are here to find out what the truth is and we are not afraid of the truth, we are not here to be afraid of the truth, but that's not the substance of my opposition . . . .
[Defense counsel]: I don't know exactly what question is he referring to about the gangs, Judge, but certainly there was the indication again that this was not just a simple armed robbery, that these individuals perhaps were out there at 3 o'clock in the morning, between two and 3 o'clock in the morning. And perhaps, Judge, they were not as innocent as they make themselves out to be. And I allude to the fat that there's a movie which is missing, a two-hour movie, or a one-and-a-half hour movie which is missing.
THE COURT: No. Gang question, gang question.
[Defense counsel]: Judge, the absence of the movie, of the recollection of the movie leads me to believe that someone perhaps is attempting to sugar coat the facts, making themselves out to be the nice guys on the block.
[Defense counsel]: I'm going to put on the record there's no one particular reason why I ask my questions, absolutely not. There are multiple reasons, a host of reasons. And that might have been part of my rationale. However, one of the facts that I tend to utilize, unfortunately not everyone agrees with my tactics, some people do, a number of people do, is to ask my questions which would lead to further questions and would lead to admissions which are favorable, Judge. So, I tend to try to, when I cross examine a witness, to involve them in a colloquy. I try to follow, as best as I can, under pressure, obviously, a pattern of thought, a two-way discussion leading to the discovery of further information, leading to statements made. And I believe I have been successful on a number of points here in this court, Judge, by doing so.
[Defense counsel]: And Judge, I've said everything that I possibly can. I apologize if I cannot add anything further to the record.
The State opposed the applications on the basis that defendant's counsel had early in the trial stated that he intended to argue to the jury that this was an afterthought robbery, and that the gang references were admitted pursuant to this express trial strategy.
The judge denied the motions for a mistrial and for severance, but instructed the jury as follows:
During the course of the trial, there has been some evidence introduced that the Defendants were a member of a gang. The 18th Street Gang that I heard described. Normally this type of evidence is not permitted under our rules. Our rules particularly exclude this type of material, when it's merely offered to show that a Defendant had a disposition or the tendency to do wrong and therefore must be guilty of the crime charged in the indictment.
Before you can give any weight to this type of evidence, you must be satisfied first that the Defendant is a member of a gang. If you're not so satisfied, then don't consider it for any purpose. However, our rules do permit evidence when the evidence is used for a certain, specific, narrow purpose. In this case the evidence was introduced to explain motive or intention. Whether the evidence does, in fact, demonstrate motive, intention, that's for you to decide. You may decide the evidence does not demonstrate motive and intent, and therefore doesn't help you at all. In that case, disregard it.
On the other hand, you may decide that the evidence does demonstrate motive or intent. If so, then use it for that specific purpose. However, you may not use the evidence to decide that the Defendant has a tendency to commit crimes, or that he's a bad person merely because he's a member of the 18th Street Gang.
That is, you may not decide that just because he is a member of a gang, he therefore must be guilty of the present crime. I admitted the evidence to help you decide the specific questions of motive and intent. You may not consider it for any other purpose, and may not find the Defendant guilty now simply because of the evidence shown that he was a member of a gang.
On appeal, defendant raises the following contentions:
THE SHOW-UP IDENTIFICATION PROCEDURE CONDUCTED BY POLICE WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.
IN ADDITION TO NUMEROUS OTHER ACTS DEMONSTRATING HIS INEFFECTIVENESS, COUNSEL FOR NO STRATEGIC REASON ELICITED THE DEVASTATING TESTIMONY THAT THE DEFENDANTS WERE MEMBERS OF A CRIMINAL GANG. REVERSAL IS REQUIRED.
Defendant contends in his first point that the show-up identification procedure used by police was impermissibly suggestive and created a substantial likelihood of misidentification. This issue was not raised before the trial judge, and accordingly, the plain error standard will be applied. In other words, the purported error will be considered a basis for reversal only if "it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
Evidentiary rulings are discretionary and generally subject to reversal only where the admission was an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). In this case, where no objection was made at trial, the record will be examined in order to determine if the evidentiary ruling resulted in a manifest error or injustice which prejudiced defendant. State v. Kuchera, 198 N.J. 482, 498 (2009) (citation omitted). Defendant argues that the procedure in this instance was inherently suggestive and unnecessary as no time constraint prevented a less suggestive identification technique such as a line-up or a photo array. In defendant's brief, counsel points out that although eyewitness identification is "the most powerful evidence presented at trial, . . . it can be the most dangerous too." State v. Delgado, 188 N.J. 48, 60 (2006). It is profoundly persuasive to jurors, yet because of situational factors, the possibility of misidentification is extremely high. Defendant urges us to consider that there are a number of jurisdictions that now prohibit one-person show-ups except in exigent or compelling circumstances, and that New Jersey should adopt such a rule.
It is clear that the show-up procedure employed here, although obviously suggestive, was not impermissibly so. The event occurred so close in time to the victims' identification of the perpetrators as to make the out-of-court identification quite reliable. Cruz called 911 from a pay phone immediately after the incident occurred; he testified that two officers responded to the scene "right away." Moran testified that the police responded within three minutes of Cruz placing the emergency call. According to Cruz, the officers who interviewed the three victims told them to wait in his apartment until the suspects were apprehended. Approximately "15 minutes later," the officers asked the victims to identify the persons who were detained. The show-up identification was conducted perhaps as little as than thirty minutes after the incident took place.
In determining whether the show-up identification created plain error we examine first whether the identification was "impermissibly suggestive." State v. Romero, 191 N.J. 59, 76 (2007) (citing State v. Herrera, 187 N.J. 493, 503 (2006)). Impermissibly suggestive means that the method of identification is so flawed as to give rise to a "'very substantial likelihood of irreparable misidentification.'" State v. Chen, 402 N.J. Super. 62, 83 (App. Div. 2008) (quoting Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed. 2d 401, 410 (1972)). Although show-ups are acknowledged to be inherently suggestive, a defendant cannot satisfy the "impermissibly suggestive" standard without identifying more than the mere use of that specific process. State v. Romero, supra, 191 N.J. at 76-77.
Only if we find that the procedure was impermissibly suggestive do we then proceed to determine whether it was nonetheless reliable given the totality of the circumstances. State v. Herrera, supra, 187 N.J. at 503-04. This step involves "weighing the suggestive nature of the identification against" its reliability. Ibid. We examine factors such as: (1) the opportunity of the witness to view the suspect when the crime occurred; (2) "'the witness's degree of attention'"; (3) the accuracy of the prior description; (4) "'the level of certainty demonstrated at the confrontation'"; and (5) the time lapse between crime and confrontation. Id. at 503 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977)). The analysis results in a fact-sensitive assessment of the identification; the "linchpin" is reliability. State v. Adams, 194 N.J. 186, 203-04 (2008). If we are convinced that the witness's identification is reliable despite the suggestive nature of a show-up, its admission is not error.
In this case, three witnesses in separate police cars each identified defendant as one of the perpetrators. Each victim, free from the influence of the others, separately identified defendant as the knife wielder. Each testified that they first noticed defendant as the group approached because he was hiding something behind his back, even before they became aware that he posed a threat to them. Defendant spoke to the victims before he showed them the knife. Defendant was the individual who cut Cruz's finger and held a knife to his chest as a co-defendant stole his wallet. Defendant searched through Lopez-Sosa's pockets. Defendant also searched Moran's pockets and swung a knife at him. Defendant was the individual who demanded the victims turn over their baseball caps, and who removed Cruz and Lopez's hats while a co-defendant took Moran's cap.
The opportunity to observe defendant as he approached prior to the robbery, as the robbery progressed, and then as the perpetrators fled the scene, gave the victims a sufficient opportunity to see defendant. Moran testified that the police responded within approximately three minutes of Cruz's call to 911; Cruz testified that the victims were called to identify the suspects approximately fifteen minutes after that. The robbery and the identification therefore occurred within minutes, a reasonable span of time for the use of the procedure. The procedure was suggestive, not impermissibly so, and in any event reliable. The admission of testimony about the show-up identification was not an abuse of discretion, nor was it plain error.
Defendant's second point is that his counsel's ineffectiveness with respect to, among other things, the manner in which he "elicited the devastating testimony that the defendants were members of a criminal gang," is so well-established in the trial record that we should decide the question of ineffective assistance of counsel on this direct appeal from the conviction. In support of this contention, defendant also raises counsel's failure to request a Wade*fn2
hearing regarding the show-up. Counsel asserts that this omission is of particular importance and consequence because the victims were unable to identify any of the defendants during the trial, and therefore the jury made its decision solely based on the out-of-court identifications.
"Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Although no doubt defendant will rely on material found in the record when making his ineffective assistance of counsel claim, there may be other proofs outside the record. Thus, defendant's ineffective assistance claim is better suited for a post-conviction relief (PCR) hearing than a direct appeal. Ibid. See also State v. Morton, 155 N.J. 383, 432-33 (1998); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We defer these claims to defendant's PCR application, and will not comment upon them further.