May 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHIM NELSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No(s). 01-01-0034 and 01-01-0035.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010
Before Judges Parrillo and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
After two prior trials resulted in mistrials, defendant was convicted by a jury of first-degree robbery, N.J.S.A. 2C:15-1; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-4(a); two counts of third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and unlawful possession of a handgun by a previously convicted felon, N.J.S.A. 2C:39-7(b). The sentencing court ordered appropriate mergers of the convictions and imposed an aggregate sentence of seventeen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed and we affirmed his convictions and sentence in an unpublished opinion. State v. Nelson, No. A-1932-03 (App. Div. Dec. 9, 2004). The Supreme Court denied his petition for certification. State v. Nelson, 187 N.J. 492 (2006). The facts underlying defendant's convictions are set forth in our opinion on direct appeal and need not be repeated here.
Defendant filed a PCR petition on March 1, 2007, in which he argued he was denied the effective assistance of counsel because: (1) trial counsel failed to request a charge on attempted robbery; (2) trial counsel failed to conduct a meaningful pretrial investigation of the State's witnesses; (3) trial counsel failed to seek leave to file an interlocutory appeal from various trial court rulings; (4) trial counsel committed cumulative errors; (5) trial counsel failed to call a key witness, Ronald Jones; (6) trial counsel failed to request a charge on photo-array evidence; (7) trial counsel failed to make appropriate motions; (8) trial and appellate counsel failed to move for a new trial; (9) trial counsel was ineffective in the pre-trial stage, in opening and closing statements, and at sentencing; (10) trial counsel failed to object to a statement that photos used in the photo array were arrest photos; (11) trial counsel failed to convey to the court that the testimony of a police officer was in direct contradiction of his pre-trial testimony; and (12) trial counsel failed to convey to the court or jury that another person had pled guilty to the first-degree robbery charge. Defendant also argued that the trial court's failure to give a charge on the photo-array evidence sua sponte deprived him of constitutional rights.
A brief and amended petition were submitted on behalf of defendant in November 2007. In this brief, defendant raised additional claims of ineffective assistance of counsel based upon (1) the failure to request a Wade*fn1 hearing to challenge an out-of-court identification of defendant from a photo array and (2) the failure to seek dismissal of the charges on double jeopardy grounds based upon the trial court's declaration of a mistrial during deliberations in the second trial that, defendant argued, was erroneously precipitous.
The PCR court denied defendant's petition by order dated January 16, 2009. Defendant presents the following issues for our consideration in his appeal.
THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING AND A WADE HEARING BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO REQUEST A WADE HEARING
THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED AND DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO MOVE FOR A DISMISSAL OF THE INDICTMENTS ON DOUBLE JEOPARDY GROUNDS
We are not persuaded by these arguments and affirm.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights 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 694, l04 S. Ct. at 2068, 80 L. Ed. 2d at 698.
At trial, defendant was identified by both the victim of the robbery and a witness to the robbery, J.P. Defendant argues that his trial counsel was ineffective for failing to request a Wade hearing because J.P.'s identification of him was "basically . . . a show-up in the station house." Defendant was arrested within hours of the robbery and was brought to the station house. J.P. was at the station house when, apparently indavertently and unknown to the police, she observed defendant enter. She spontaneously identified defendant to an officer and then identified his photograph in a photo array. Even if these facts can be characterized as such, a "show-up" is not an impermissibly suggestive identification procedure per se. See State v. Romero, 191 N.J. 59, 78-79 (2007). The PCR court drew upon the evidence at trial to show that J.P.'s identification of defendant was reliable. The court noted that J.P. was in close proximity to the incident; she had eye contact with defendant; she was able to identify the vehicle used in the robbery; she identified defendant prior to seeing any photograph; and her identification occurred approximately three hours after the robbery. The court found the glimpse of defendant entering the police station was inadvertent and not the product of a police attempt to influence her, and that the fact that defendant and the other suspects were wearing the same clothing worn at the time of the robbery was not impermissibly suggestive. Finally, the court noted that J.P. had been cross-examined about the identification.
The evidence does not reflect any impermissibly suggestive action by the police. We agree with the PCR court that it was unlikely that a motion to suppress J.P.'s identification of defendant following a Wade hearing would have been successful. Further, it is unlikely that a request for a Wade hearing would have led to a different result at trial since, even if successful, defendant was identified by the robbery victim, an identification that was not challenged either on direct appeal or in this petition.
The argument that the declaration of a mistrial subjected defendant to double jeopardy was not raised before the trial court or on direct appeal. Observing that the argument raised a constitutional issue, the PCR court nevertheless addressed the merits of the argument. The court observed that after a trial lasting a day and a half, the jury deliberated for "the better part of two days." The court stated that the jury was given a modified Allen*fn2 charge twice, was brought back for a second day of deliberations and advised the court at least three times that they were deadlocked before the trial court declared a mistrial. While the appropriate course is to inquire of the jury whether further deliberation will likely result in a verdict when the jury advises that it is deadlocked, it is not always necessary for the trial court to do so. Figueroa, supra, 190 N.J. at 240. The PCR court concluded that, under the circumstances here, where the trial court brought back the jurors to give them a fresh start after the weekend and had an extensive readback of testimony that did not alter their positions, the trial court did not abuse its discretion in declaring a mistrial without further inquiry. We agree.
The argument pressed in this petition is that trial counsel was ineffective in failing to object to the mistrial. For defendant to prevail, he would have to show that an objection by defense counsel at the time would have made a difference. See Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L. Ed. 2d at 698. However, the PCR court noted that the absence of an objection here was consistent with a legitimate and customary strategic decision under the circumstances:
Usually, if the Judge is going to declare a mistrial you don't object because if they continue to deliberate they may very well result in conviction, so you get a second opportunity and a second new jury.
The PCR court concluded, "there's absolutely nothing on this record that if that issue had been raised by counsel . . . they would have likely prevailed." Again, we agree.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel under the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).