February 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER ROMERO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 02-02-0240.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2011
Before Judges Reisner and Sabatino.
Defendant Christopher Romero appeals the dismissal of his petition for post-conviction relief ("PCR"). The petition is based upon two arguments: (1) inappropriate legal principles were applied in the trial court proceedings and on direct appeal in allowing the victim's identification to be admitted against defendant at his trial; and (2) defendant's former counsel was constitutionally ineffective in failing to make adequate arguments to exclude the identification. We join the Law Division in rejecting those contentions and consequently affirm the denial of PCR relief.
We incorporate by reference the factual and procedural history recited by the Supreme Court in its opinion upholding defendant's convictions on direct appeal. See State v. Romero, 191 N.J. 59 (2007). By way of a brief summary, defendant's indictment arose out of the attack and stabbing of the victim on the streets of Trenton one evening in October 2001. About $1200 was taken from the victim by his attacker. The victim got a face-to-face view of the attacker as they struggled. About a week later, the victim saw someone on the street who resembled his attacker and he called the police. The victim gave the police a description, and about an hour later, they caught defendant. The police brought the victim over to the police car, in which defendant was seated. The victim took a long look at defendant and concluded he was looking at his attacker.
Defendant was charged with first-degree armed robbery with the use of a knife, N.J.S.A. 2C:15-1 and 2C:2-6; third-degree attempted theft by unlawful taking as a principal or accessory, N.J.S.A. 2C:20-3a, 2C:2-1 and 2C:2-6; third-degree aggravated assault as a principal or accessory, N.J.S.A. 2C:12-1(b)(7) and 2C:2-6; third-degree possession of a weapon for an unlawful purpose, N.J.S.A 2C:39-4(d) and 2C:2-6; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) and 2C:2-6. After a pretrial Wade*fn1 hearing, the trial judge found that, under existing law, the "show up" identification procedure used by the police was not unduly suggestive and that the victim's identification was reliable.
The victim's identification of defendant was admitted as part of the State's proofs at the ensuing four-day jury trial in December 2002. The jury found defendant guilty of all counts of the indictment. After appropriate mergers, the trial judge sentenced defendant to fifteen years imprisonment with an 85% parole ineligibility period for the robbery conviction, a concurrent five years imprisonment with a two-and-a-half-year parole disqualifier for the aggravated assault conviction, and another concurrent five years imprisonment with a two-and-a-half-year parole disqualifier on the conviction for possession of a weapon for an unlawful purpose.
We affirmed defendant's convictions and sentence on direct appeal in an unpublished opinion in February 2005. State v. Romero, No. A-0825-03 (App. Div. Feb. 1, 2005). Among other things, we sustained the admissibility of the victim's identification. After granting certification, the Supreme upheld defendant's convictions in a May 21, 2007 opinion, although it ordered a prospective change in the model jury charge on eyewitness identifications. State v. Romero, supra, 191 N.J. at 75-76.
Defendant then sought PCR relief from the trial court. Because the judge who had tried the case had by that point completed his term of office, the petition was referred to Judge Mitchel Ostrer. After hearing oral argument, Judge Ostrer filed an order and a written opinion denying the PCR application. This appeal ensued.
Defendant's points on appeal consist of the following:
THE FEDERAL "IMPERMISSIBLY SUGGESTIVE" STANDARD FOR ADMISSION OF ONE-ON-ONE IDENTIFICATION TESTIMONY DID NOT ADEQUATELY PROTECT DEFENDANT'S STATE CONSTITUTIONAL RIGHT TO DUE PROCESS AND FUNDAMENTAL FAIRNESS. OUR COURTS SHOULD ADOPT A PER SE, EXIGENCY STANDARD DELIMITING THE PERMISSIBLE USE OF A SHOW-UP PROCEDURE.
A. DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING TO DEMONSTRATE THAT
THE IDENTIFICATION IN THIS CASE WAS UNDULY SUGGESTIVE AND UNRELIABLE.
B. CRITICISM OF BIGGERS AND BRATHWAITE.
C. THE FLAWED FEDERAL STANDARD.
DEFENDANT'S COUNSEL WAS INEFFECTIVE IN FAILING TO PROPERLY CHALLENGE THE SHOW-UP IDENTIFICATION PROCEDURE UTILIZED BY POLICE IN THIS CASE.
Having fully considered these points and the State's opposition, we affirm the dismissal of defendant's PCR petition, substantially for the reasons detailed in Judge Ostrer's opinion dated December 8, 2009. Only a few additional comments are worth mentioning.
Point I of defendant's brief essentially consists of a doctrinal attack upon the present federal and state case law respecting the legal standards governing the admissibility of eyewitness identification proofs, including show-up identifications. We are mindful that a Special Master recently made numerous recommendations in a formal report to the Court suggesting various alterations in present case law and police practices concerning such identifications. See State v. Henderson, No. A-08 (June 18, 2010) (containing the report of Special Master Honorable Geoffrey Gaulkin regarding the validity of State law standards on the admissibility of eyewitness identification).*fn2 The Court has yet to act on that report, and we discern no reason in this case to weigh in on the important policy and jurisprudential issues commended to the Court by the Special Master. Instead, we apply the law of identification as it presently exists. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977) (reciting a two-part test of suggestiveness and reliability); see also State v. Madison, 109 N.J. 223, 232-33 (1988) (adopting the federal approach in Manson to guide the courts of this State). "As judges of the Appellate Division . . . our duty is encompassed by the obligation to decide what is the law to be applied to a given case on appeal and not what we feel the law should be." Nixon v. Lawhon, 32 N.J. Super. 351, 355 (App. Div. 1954); see also State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976).
The admissibility of the victim's identification of defendant in this case has already been sustained by the Supreme Court on direct appeal, see State v. Romero, supra, 191 N.J. at 76-79, and we will not reconsider that issue here. Although we appreciate that defendant, like the Special Master, has presented reasons for more stringent treatment of show-up identifications, we will not assume that the Court will endorse that advocated change in the law. Even if the Court does adopt such a change, we do not presume that a new rule will apply retroactively to persons such as defendant on a collateral attack in PCR proceedings. Moreover, we perceive no fundamental injustice so as to allow defendant to present such policy arguments for the first time on collateral review. See R. 3:22-4 (applying a procedural bar to PCR claims that could have been brought in prior proceedings).
In addition, this case has a distinctive aspect, in that it was the victim who contacted the police after making his own post-robbery identification of defendant upon seeing him on the street, rather than the police showing defendant to the victim for the first time after the offense. This unusual feature of the case was underscored in the Court's opinion. State v. Romero, supra, 191 N.J. at 77-79. This case is therefore unlike more conventional show-ups that may have greater elements of suggestiveness. Furthermore, all of the alleged weaknesses in the victim's identification that defendant discusses in his brief were before the jury that convicted him. We are unpersuaded that defendant's convictions should now be set aside because of those alleged weaknesses.
In Point II of his brief, defendant argues that his trial counsel and his attorneys on direct appeal were constitutionally ineffective because they failed to dislodge the identification proofs and failed to expose the alleged shortcomings of extant law. We detect no such ineffectiveness, under the well-established principles set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (requiring proof of counsel's deficient performance and actual prejudice to the defendant) and State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). Defendant's former counsel can hardly be faulted for not being prescient about the Special Master's recommendations in Henderson, or in forecasting what the Court will do with those recommendations. Former counsel advocated against the admission of the victim's identification multiple times--at the pretrial Wade hearing, on direct appeal before this court, and on certification to the Supreme Court. There was no deficient performance, nor any demonstrated actual prejudice.
The dismissal of defendant's PCR petition is affirmed.