September 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HECTOR C. MORALES, A/K/A HECTOR L. DAVILA*FN1, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-08-1545.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Wefing and Koblitz.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Tried to a jury, defendant was convicted of three counts of third-degree burglary, N.J.S.A. 2C:18-2, and three counts of third-degree theft, N.J.S.A. 2C:20-3. The trial court sentenced defendant to an aggregate sentence of fifteen years in prison, with a seven-and-one-half-year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed. State v. Morales, No. A-5921-00 (App. Div. Oct. 24, 2002), certif. denied, 178 N.J. 375 (2003). Defendant filed a timely petition seeking post-conviction relief, in which he alleged that he had not received effective assistance from his counsel. The trial court denied defendant's petition after hearing oral argument but without conducting a plenary hearing. This appeal followed.
Defendant raises the following contentions on this appeal:
POINT I - THE DEFENDANT'S CLAIMS CONCERNING THE FAILURE TO INSTRUCT THE JURY ON THE ISSUE OF IDENTIFICATION WERE NOT PROCEDURALLY BARRED UNDER R. 3:22-5 BECAUSE THEY WERE RAISED IN THE CONTEXT OF AN INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENT AND THEREFORE WERE NOT "IDENTICAL" TO OR "SUBSTANTIALLY  EQUIVALENT" TO THE IDENTIFICATION ISSUES RAISED ON DIRECT APPEAL.
POINT II - THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL'S DEFICIENT PERFORMANCE SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST.
(A) TRIAL COUNSEL'S FAILURE TO MOVE FOR A MISTRIAL AFTER THE DEFENDANT WAS SEEN BY THE JURY IN HANDCUFFS, AND TRIAL COUNSEL'S FAILURE TO SECURE AN APPROPRIATE JURY INSTRUCTION ON THE ISSUE OF IDENTIFICATION RESULTED IN A TRIAL THAT DID NOT PRODUCE A JUST RESULT.
(B) TRIAL COUNSEL'S DEFICIENT PERFORMANCE PREJUDICED THE DEFENDANT.
(C) UNDER R. 3:22-2 CRITERIA, THE DEFENDANT WAS ENTITLED TO A FULL EVIDENTIARY HEARING IN POST-CONVICTION RELIEF.
POINT III - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV - DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
Before analyzing defendant's contentions, we note certain basic principles. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both that "counsel's performance was deficient" and that this deficiency was so severe that the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. A defendant need not, however, show that the deficient representation "more likely than not altered the outcome of the case." Id., 466 U.S. at 693, 104 S.Ct. at 2068, 80 L.Ed. 2d at 697. New Jersey has adopted Strickland's two-prong measure. State v. Fritz, 105 N.J. 42, 52 (1987).
At the time of defendant's original trial, the jury was not given a specific charge on identification. See Model Criminal Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2009). In his direct appeal to this court, defendant argued that this omission constituted plain error, warranting a reversal of his convictions. We rejected that contention. We noted that the record contained "other sufficient evidence to corroborate" the witness's identification of defendant and that the trial court was "not required to provide a specific identification charge sua sponte when the State's evidence corroborates the identification." Morales, supra (slip op. at 9-10).
In such a context, we agree with the trial court that defendant may not again raise the failure to provide an identification charge by cloaking it in the mantle of a petition for post-conviction relief. Rule 3:22-5 provides in pertinent part that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding. . . ." To accept defendant's argument would, in effect, render Rule 3:22-5 a nullity. Further, our earlier conclusion on defendant's direct appeal that the omission of a specific jury charge on identification did not raise "a possibility of injustice," Morales (slip op. at 10) (quoting State v. Copling, 326 N.J. Super. 417 at 431 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000)), means that defendant is unable to satisfy the second prong of the Strickland/Fritz test.
As to defendant's second claim with respect to the performance of his trial attorney, we agree with defendant that the trial court acted too swiftly in concluding that defendant was not entitled to post-conviction relief. Defendant asserted that at one point during the trial, the jury, which was in the hallway, saw him being transported in handcuffs. He contended in his petition that he told his attorney of this incident, and his attorney failed to pursue it before the trial court. The transcript of defendant's trial contains no reference to such an incident.
The trial court, without conducting a hearing, rejected defendant's claim that this event had ever occurred. The trial court based this rejection upon its familiarity with the procedures used in the courthouse to prevent such an incident from ever occurring. The best of procedures, however, are not absolutely immune to error; procedures must be implemented by humans and are thus subject to the potential for lapse.
In our judgment, defendant was entitled to a hearing at which the credibility of his allegation could be measured by testimony offered under oath and tested through cross-examination. The trial court recognized that if the jury considering the question of defendant's guilt or innocence of the crimes charged did, in fact, see him being escorted in handcuffs, the likelihood of irremediable prejudice was great. The trial court simply determined the incident never happened but did so without having heard one word of sworn testimony.
We thus are compelled to remand this matter to the trial court for further proceedings at which defendant will be permitted to offer proofs to substantiate his contention. The trial court will then have an opportunity to assess the credibility and weight of those proofs.
Here, during the course of the hearing on defendant's petition, the trial court expressed its view at several junctures that it did not believe defendant's assertion. To prevent the possibility of any taint flowing from those statements, we direct that this hearing be conducted by a trial judge other than the judge who initially heard defendant's petition for post-conviction relief.
We have reviewed the remainder of defendant's contentions on appeal and are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The order under review is reversed, and the matter is remanded to the trial court for further proceedings in accordance with this opinion.