January 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LOUIS LUIBIL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-04-0383.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2011
Before Judges Grall and Alvarez.
Defendant Luis Luibil appeals from the September 10, 2009 denial of his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant was convicted after a trial by jury of carjacking, N.J.S.A. 2C:15-2(a)(1). On December 5, 2003, he was sentenced on that offense as a persistent offender, N.J.S.A. 2C:44-3(a), to an extended term of thirty-four years subject to eighty-five percent parole disqualification pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's direct appeal was denied in an unpublished decision on November 14, 2005. State v. Luibil, No. A-6762-03 (App. Div. Nov. 14, 2005). His petition for certification was thereafter denied on January 31, 2006. State v. Luibil, 186 N.J. 245 (2006).
Some limited discussion of the facts developed during the trial is necessary to understand the issues raised by this appeal. On November 26, 2002, as John Juby and his mother were leaving a shopping center in Totowa, Juby drove his Taurus to where his mother was waiting, exited the vehicle, and walked around to assist her because she was on a walker. As Juby's mother negotiated her way in to the passenger seat, defendant jumped into the driver's seat and jerked the car back and forth in an apparent effort to eject her from the Taurus. When he could not do so, he drove away. The passenger door was open, and Juby's mother was eventually thrown from the car. Neither she nor her son were able to give a detailed description of the assailant.
The day after the carjacking, police informed defendant's sister that her car was found abandoned in that shopping center parking lot, and that the gas tank was empty. The day before the carjacking, defendant had borrowed the vehicle.
Two days after the carjacking, defendant approached Irma Nieves and attempted to snatch her purse, witnessed by several bystanders. As she and defendant struggled, she began to scream. Eventually, defendant fled, driving away in the Jubys' Taurus. He was apprehended some minutes later. Defendant admitted driving the Taurus on the day of his arrest, but denied knowing anything about the Jubys.
During a pretrial hearing, Nieves testified that she was driven to two show-ups shortly after the incident in an effort to identify her assailant. When she saw the first individual, who presumably was stopped in a car similar to the one eyewitnesses described, she said that she thought it was the person but was not very sure. When Nieves saw the second individual, defendant, almost five or ten minutes later, she identified him as the would-be purse snatcher because she recognized the clothes he was wearing. She identified defendant in court during the course of that pretrial hearing and in trial. The car in which defendant was stopped was the Juby's Taurus.
Immediately before she testified at the trial, outside the presence of the jury, the judge instructed Nieves not to mention the attempted theft of her pocketbook, nor that defendant "threatened" her, or that they were "involved in a confrontation." Despite the instruction, Nieves said in front of the jury that she screamed when she saw defendant. Defense counsel moved for a mistrial, which application was denied. The court immediately gave a corrective instruction, however, reminding the jury that there were a host of possible reasons a person might scream when encountering another in a shopping center parking lot, including an argument over a parking space. He reiterated the instruction in his closing charge.
On defendant's PCR application, the judge concluded that his trial counsel's failure to request a Wade*fn1 hearing did not constitute ineffective assistance of counsel. The court reasoned that even if a Wade hearing had been conducted, Nieves's identification would ultimately have been found to be free of any undue suggestiveness. The judge also found there was no basis for precluding Nieves's testimony and that as a result, counsel was not ineffective because she did not attempt to prevent admission of the testimony.
Defendant raises the following issues for our consideration on appeal:
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A WADE HEARING TO CHALLENGE THE ADMISSIBILITY OF A SHOW-UP IDENTIFICATION
DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE FOR A MISTRIAL AFTER ONE OF THE STATE'S WITNESSES CONNECTED DEFENDANT TO OTHER BAD ACTS
IN THE ALTERNATIVE, DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS
In order for defendant to prevail on his claim of ineffective assistance of counsel, he must not only identify the aspect of representation that was allegedly deficient, he must also demonstrate that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here fail to meet either the performance or prejudice prongs of the Strickland test.
On appeal, defendant reiterates that it was ineffective assistance of counsel for his attorney not to have requested a Wade hearing, so that a pre-trial determination could have been made about the suggestiveness of the out-of-court identification. See State v. Adams, 194 N.J. 186, 203-04 (2008). Such a hearing is only required, however, where a defendant proffers evidence of impermissible suggestiveness. See State v. Basit, 378 N.J. Super. 125, 129 (App. Div. 2005).
In this case, even now, defendant makes no such proffer. At the pretrial hearing, Nieves testified that she was taken by officers mere minutes after the attempted mugging to be shown two different persons in an effort to identify her assailant. As she explained it, she expressed uncertainty as to the first individual she was shown, but not the second. Even if, for the sake of argument, we accepted defendant's premise that the very use of a show-up requires competent counsel to demand a Wade hearing, defendant does not allege any further circumstance which makes the show-up in this case impermissibly suggestive. No taint is alleged, and clearly there must be more than the use of the identification procedure itself. See State v. Romero, 191 N.J. 59, 76-77 (2007). Nieves did not specify anything about this show-up that made the procedure improper. Accordingly, we agree with the PCR judge that the failure to make an application under Wade did not establish ineffective assistance of counsel.
Defendant also maintains that counsel was ineffective by neglecting to argue against the admissibility of Nieves's testimony at all. Since the encounter led authorities to discover defendant driving the Juby car, the admission of the testimony is unobjectionable, was sanitized to prevent any mention of a Rule 404(b) prior bad act, and defendant suggests no ground upon which it could have been precluded. Therefore, this claim also lacks merit.
Insofar as any failure on defense counsel's part to address Nieves's actual testimony, counsel in fact immediately moved for a mistrial after Nieves testified about screaming. Clearly, the record confirms that defense counsel attempted to rectify any effect from the witness's improper statement, and that the judge gave a curative instruction as a result. Hence we agree with the PCR court's ultimate conclusion that counsel's representation was not ineffective on that score either.
Lastly, defendant contends that he was entitled to an evidentiary hearing in light of the claims which he raised. But an evidentiary hearing is required only where a prima facie case has been established. State v. Preciose, 129 N.J. 451, 462-63 (1992). No such prima facie case was established here.