January 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAURICE GREEN A/K/A QUAZEE E. JOHNSON A/K/A MAURICE M. GREEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-05-1364, 06-05-1365 and 07-03-0792.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 5, 2011
Before Judges Axelrad and R. B. Coleman.
Defendant Maurice Green, who was convicted of armed robbery of a convenience store and weapons offenses, raises as his sole issue on appeal ineffective assistance of trial counsel in failing to request a Wade*fn1 hearing. According to defendant, since his entire defense was premised on a challenge to the reliability of the State's eyewitness identification evidence, such failure materially affected the outcome of the case. We disagree and affirm.
The Essex County Grand Jury returned a May 2006 indictment charging defendant with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4(a) (count three). In a separate indictment, defendant was charged with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b), arising out of the same incident.
On March 29, 2007, defendant was found guilty by a jury on all three counts. Defendant waived his right to a jury trial for the certain persons not to have weapons charge and was found guilty by Judge McCormack on April 4, 2007.
About six months later, the court merged count three with count one and sentenced defendant to a sixteen-year custodial term with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on count one, and to a concurrent five-year custodial term on count two. Defendant also received a concurrent eight-year custodial term with five years of parole ineligibility for the certain persons not to have weapons conviction.*fn2
Defendant's conviction arose out of an October 28, 2005 armed robbery of Flor Mini Mart, a small convenience store in Newark. The State presented the eyewitness testimony of the store employees Oscuary Masquea and Jose Garcia and responding police officer Darnell Brown Graham and firearms expert Detective Pablo Maldonado of the Newark Police Department. Defendant presented the testimony of David Barmore, an intake employee at the Essex County Department of Corrections, and Derrick Moultrie, an alibi witness who was found with defendant near the store following the robbery.
Masquea, who was working the register on that day, testified that two men in ski masks entered the store around noon. One stood near the back of the store while the other approached Masquea with a handgun. The man who approached him was wearing an army jacket and a black ski mask that covered everything except the wearer's eyes and nose. Pointing the gun at Masquea's chest, the man demanded "the money from the register, the bag you have down there, and the money that you have in your pockets." The bag the gunman referred to was a black bag with a FedEx logo containing cell phones, batteries and chargers, which was Masquea's personal property and not on display, that Masquea bought and traded with people in the neighborhood. Masquea immediately turned over all the requested items to defendant. Garcia was stocking a refrigerator in the back of the store and did not see the robbery take place.
Masquea testified that although the gunman was wearing a black ski mask, it was "a little bit clear" and "very tight on the face," and he immediately recognized him as defendant because he knew defendant from the neighborhood. According to Masquea, he saw defendant several times a week hanging out in front of a building about two blocks from the store, presumably his residence, as Masquea walked to work. Occasionally they would exchange greetings. Defendant also came to the store at least twice a week. As the final indicator, Masquea knew defendant was aware of the contents of the FedEx bag because once prior to the robbery defendant had asked him if he was selling phones.
Defendant and his accomplice then fled the store. Masquea told Garcia they had just been robbed and asked for assistance because he could "imagine where [defendant] was going to go," presumably to defendant's residence. Masquea saw the gunman crossing Springfield Avenue and heading towards Nineteenth Street. Masquea phoned the police while Garcia pursued the gunman in his car. The police returned to the store with Garcia, Masquea explained about the robbery, gave a clothing description of the gunman, and pointed the officers in the direction the gunman ran.
The police returned to the store with two suspects in two different patrol cars and asked Masquea whether he could make a positive identification of either one. While Masquea only identified the man in the first car as another customer, he identified the suspect in the second car, defendant, as the gunman. At trial, Masquea was shown a handgun found on defendant and testified that he recognized it as the silver revolver used in the robbery.
Garcia corroborated that due to his location in the store, he did not see either suspect. He testified that as he exited the store, he observed a man wearing a green army jacket and a ski mask running down South Nineteenth Street, carrying the black FedEx bag. Garcia followed the man in his car and saw him run across an empty lot leading to a building off Nineteenth Street. He flagged down an approaching patrol car, which had just received a radio dispatch about the robbery. Due to a language barrier -- Garcia spoke Spanish and the officers did not -- he returned to the store with the police.
Officer Graham, one of the responding officers, testified that Masquea told him he had been robbed at gunpoint by a man in a green army jacket. Garcia directed the officers to the building where he observed the gunman fleeing. Officer Graham observed defendant in the backyard bent over with one arm inside a green army jacket and the other hand going through the pockets of the army jacket with a revolver inside the same pocket as his hand. Defendant was placed under arrest for possession of an illegal handgun. The officer also discovered "a small bag which contained cell phone parts" in the immediate area. Defendant and Moultrie, who was with him, were placed in separate patrol cars and brought back to the Mini Mart.
Officer Graham asked Masquea if he could positively identify either as the one who robbed him. Masquea could not identify Moultrie but identified defendant as the gunman. According to the officer, defendant's personal property was taken; however, because the weather was chilly, the officer gave defendant back his army jacket. The officer further explained that defendant was placed in a holding cell with Moultrie and several dozen other individuals who were waiting to be processed, none of whom were handcuffed or restrained. When defendant was processed at the county jail he was wearing a black and red coat, which fact was corroborated by Barmore. The army jacket was never located.
Moultrie, a close friend of defendant's, claimed defendant was with him at noon that day and the pair did not go to the market. He testified that around that time he and defendant walked to the building where they were arrested to visit a friend who lived there and because the doorbell was broken, they walked around back to shout at their friend through the window to let them inside. According to Moultrie, defendant was wearing a red and black jacket, and right before they were arrested, they discovered a small blue bag and a green army jacket lying on the ground. As aforestated, defendant was convicted of armed robbery and weapons offenses.
On appeal, defendant asserts an ineffective assistance of trial counsel claim for not seeking to suppress Masquea's outof-court identification by requesting a Wade hearing.
We preliminarily note that a claim of ineffective assistance of counsel generally cannot be raised on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Normally, a hearing is necessary to develop a record and give counsel an opportunity to provide an explanation of his or her conduct. Sparano, supra, 249 N.J. Super. at 419. We are satisfied the trial record is sufficient for us to address and dispose of this argument on direct appeal rather than having it abide a post-conviction relief application.
To succeed on a claim of ineffective assistance of counsel, a defendant must satisfy the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), which New Jersey adopted in State v. Fritz, 105 N.J. 42, 58 (1987). See also Preciose, supra, 129 N.J. at 463. Pursuant to this test, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and his or her errors were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the deficient performance prejudiced the defendant's right to a fair trial such that there exists "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 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698; Fritz, supra, 105 N.J. at 52, 60-61.
Courts grant a high degree of deference in evaluating the performance of counsel and employ a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, l05 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). As to the second prong, a reasonable probability is defined as a "probability sufficient to undermine confidence in the outcome." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Defendant's claim of ineffective assistance of counsel is premised upon the out-of-court show-up identification of defendant. Our Court has adopted the United States Supreme Court's two-step analysis to determine the admissibility of such an identification. State v. Romero, 191 N.J. 59, 76 (2007) (citing Manson v. Brathwaite, 432 U.S. 98, 110, 97 S. Ct. 2243, 2251, 53 L. Ed. 2d 140, 151 (1977)). The reviewing court must first "ascertain whether the identification procedure was impermissibly suggestive" and, if so, it must then determine "whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification." Ibid. (quoting State v. Herrera, 187 N.J. 493, 503-04 (2006)).
Because these decisions are based on the totality of the circumstances, "[e]ach showup setting must necessarily stand or fall on its own unique facts." Id. at 77. Ultimately, "'[r]eliability is the linchpin in determining the admissibility of identification testimony.'" State v. Madison, 109 N.J. 223, 232 (l988) (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).
The only out-of-court identification testified to was that made by Masquea, the victim. The State concedes the show-up here was impermissibly suggestive as defendant was arrested, placed in handcuffs, and was in the patrol car when he was returned to the convenience store for identification by Masquea. See, e.g., State v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003) (holding witness identification of a defendant seated and handcuffed in back of police car was impermissibly suggestive).
We must still determine whether the impermissibly suggestive procedure was nonetheless reliable. Herrera, supra, 187 N.J. at 504. We evaluate the following factors to make that determination:
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. [Herrera, supra, 187 N.J. at 503 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).]
In weighing these factors, "it must be remembered that the purpose of the inquiry is to determine whether the identification of the defendant was made by the witness because of the suggestiveness of the [identification procedure], or as a result of [his or] her own independent recollection." State v. Cherry, 289 N.J. Super. 503, 520 (App. Div. 1995).
Although defendant's trial counsel did not request a Wade hearing, he did explore on cross-examination of Masquea the circumstances of the out-of-court identification and Masquea's ability to perceive the gunman at the time of the robbery. Masquea estimated he was face-to-face with defendant for three to four minutes at the time of the robbery and recognized him immediately. Although he did not expressly testify about his degree of attention, considering there was a revolver pointed at him, Masquea was most likely paying close attention.
It is not fatal to the reliability of Masquea's identification that he did not provide a physical description of the gunman, mention his bloodshot eyes, or explain his familiarity with him before the show-up. Potentially, the omissions were due to the swiftness of the officers' initial inquiry and their pursuit of defendant. Additionally, the bloodshot eyes did not appear to play a significant role in the identification; as Masquea explained at trial, "the base I used was the fact that I recognized him from before and I recognized him even through the mask."
Masquea did, however, provide an unwavering description of defendant from the robbery to trial. According to Officer Graham, when the police first arrived at the store, Masquea promptly explained about the robbery and described defendant as wearing a green army jacket. He also pointed the officers in the direction the robbers ran, explaining they were "down the street behind the white house." Significant to the accuracy of Masquea's initial description, defendant was found at the place he described, in the possession of a green army jacket and silver revolver.
The record clearly reflects Masquea's level of certainty of identification demonstrated at the time of the confrontation. Masquea's familiarity with defendant played a significant part in his identification. As Masquea testified at trial, the gunman's mask was "a little bit clear" and he immediately recognized him as defendant. Masquea also explained in detail the basis of his swift recognition of defendant. He saw defendant around the neighborhood several times a week and the two would occasionally exchange greetings. Defendant also came into the store at least twice a week and was aware Masquea carried a small bag of cell phones, batteries and chargers. The fact the gunman specifically demanded this bag as part of the loot confirmed Masquea's belief that defendant was the gunman. For these reasons, Masquea was clearly certain defendant was the one who had just robbed him at gunpoint when he "looked in the window [of the patrol car], and said that's the individual that had the gun."
Although there was no specific testimony regarding the time span between the crime and the show-up, it appeared to be a very short window. Masquea testified the robbery lasted three to four minutes. Garcia immediately pursued the fleeing men and flagged down the patrol car. He estimated that about fifteen to twenty minutes passed from the time he returned to the store with the officers and led them to the location where they arrested defendant. Defendant and Moultrie were promptly driven back to the store for the confrontation with Masquea. The interim between the offense and the show-up time was clearly not sufficient for there to be "considerable memory loss" on the identifier's part. See Madison, supra, 109 N.J. at 242 (holding that a two-month lapse, without more, did not render the identification evidence inadmissible).
Against these factors, all of which indicate reliability, "is to be weighed the corrupting effect of the suggestive identification itself." Herrera, supra, 187 N.J. at 503. Based on the record, we cannot imagine the suggestive nature of the show-up procedure having any "corrupting effect" on Masquea's out-of-court identification.
Masquea's identification "represent[ed] his own independent recollection" and did not result "from the suggestive words or conduct of a law enforcement officer." State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). When the police returned to the store with defendant and Moultrie, they made no comments to Masquea that "may have influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit." Herrera, supra, 187 N.J. at 506. The officers merely asked the store employee whether he could make a positive identification of either of the men. There is no evidence Masquea knew defendant had been found with the gun and the robbery proceeds when he made the out-of-court identification; in fact, he expressly denied the officers said anything about finding his black FedEx bag.
Furthermore, given Masquea's familiarity with defendant and his certainty defendant was the gunman from the moment he entered the store, Masquea most likely would have picked defendant out of a properly conducted identification procedure involving more than one suspect or photo. That Masquea could not identify Moultrie as the accomplice, even though he also knew him as a customer of the store, is also a strong indication Masquea did not blindly affirm that the individual in police custody must be the robber.
Accordingly, we are convinced defendant failed to establish either of the Strickland prongs required for a determination of ineffective assistance of counsel. Most likely trial counsel analyzed the totality of the above-discussed circumstances of the case and made the tactical decision to forego a Wade hearing and rely on cross-examination of the State's witnesses at trial.
Defendant also has not demonstrated prejudice to his defense as a result of the strategy pursued by trial counsel. The identification procedure challenged by defendant did not "give rise to a very substantial likelihood of irreparable misidentification[,]" Madison, supra, 109 N.J. at 239 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)), and thus it is doubtful a Wade hearing would have resulted in the inadmissibility of Masquea's out-of-court identification of defendant. Moreover, even without this evidence, there was an overwhelming basis for conviction. Almost immediately after the incident, defendant was found by police less than two blocks from the store, with the gun used in the robbery in his possession and the proceeds from the robbery in his pocket and on the ground nearby. There was ample basis for the jury to discredit defendant's alibi witness and his defense of being "in the wrong place at the wrong time."