May 21, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ERNEST HOUSEY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-06-0850.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Alvarez and Leone.
Defendant Ernest Housey appeals from the denial of his petition for post-conviction relief (PCR). He claims trial counsel was ineffective for not requesting a Wade hearing regarding McArthur Pough, an eyewitness to the crime. Defendant also claims the PCR court erred in denying an evidentiary hearing. We affirm.
Our opinion on direct appeal outlined the facts:
On December 23, 2004, defendant, known as "Chocolate, " played cards for several hours with a group which included [McArthur] Pough, Lonnie Lee, and Louis Gilchrist. The location of the game was a neighborhood garage that operated as a clubhouse.
The following afternoon, December 24, Gilchrist and Lee were at the garage in the company of a fourth man, named Joseph Nichols, when defendant entered, displayed a gun, and said, "this is a stick-up." Everyone assumed it was a prank and told defendant to "stop playing around." Defendant laughed and said, "I was just joking." He pocketed the gun, sat down with the others, and left shortly thereafter.
At around 7:00 p.m. that same day, December 24, approximately twenty people were playing cards in the garage, including Pough, Lee, Gilchrist, and Nichols. While Pough was outside talking to, among others, a person known only as "Brenton, " he looked up and saw two men approaching, whose faces were covered by ski masks. One pointed a gun at Brenton, and instructed him to say his name at the door so that the robbers could gain entry into the garage.
At that moment, Gilchrist walked out of the garage and saw the two masked men. The gun was turned to him, and he was told to back up. When he failed to respond quickly, he was hit in the face with the butt of the gun. The robbers went inside.
Pough immediately called 9-1-1 on his cell phone. As he waited for police across the street, he saw the men exit the garage, remove their masks and walk away. He followed, recognizing defendant as the person with whom he had played cards the night before for several hours. When police drove down the street, Pough saw defendant throw the gun into a field where it was later recovered. Pough gave a statement on December 28 and selected defendant's picture from a photo array on December 30. At trial, he identified defendant as the man holding the gun during the robbery.
Lee testified that when the masked men entered the garage, one said "this is a robbery. For real." Later in the trial, he testified that one of the men said "I'm for real this time." The robbers collected cash, valuables, and everyone's wallets, placed them in a bag and left. Lee recognized the person who wielded the gun during the robbery by his build and his clothing as defendant, whom he remembered from his visit to the garage earlier that day and whom he identified during the trial as the perpetrator.
Nichols also testified that the individual holding the gun had the same build and wore the same clothes as defendant had earlier in the day, and that the gun appeared to be the same one wielded during the seeming practical joke. Nichols reported that the men said that "it's a stick-up." He acknowledged that people in the garage had talked about the robbery the day after it happened. Nichols identified defendant in court as the individual who carried the gun.
[State v. Housey, No. A-6535-06 (App. Div. Mar. 31, 2010) (Housey) (slip op. at 3-5).]
At his April 2007 trial, the jury convicted defendant of the first-degree robberies of both Nichols and Lee, N.J.S.A. 2C:15-1; fourth-degree aggravated assault by pointing of a firearm, N.J.S.A. 2C:12-1b(4); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a firearm, N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5b; and second-degree unlawful possession of a weapon by certain persons, N.J.S.A. 2C:39-7b. Charges of first-degree robbery of Robert Watson and Keymon McMillan were dismissed because they failed to appear at trial. Judge Ralph L. DeLuccia sentenced defendant to forty years in prison.
Defendant appealed, asserting several claims, including challenging the identification charge, the admission of the identifications by Nichols and Lee, and alleged "co-witness contamination." We affirmed. Housey, supra. The Supreme Court denied certification. State v. Housey, 202 N.J. 348 (2010).
Defendant's PCR petition followed. After hearing argument, Judge DeLuccia entered an order denying the petition. Defendant appeals, raising the following claims:
THE PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED HIM BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS BY DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING. . . .
THE COURT ERRED IN NOT GRANTING PETITIONER AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.
Defendant must establish ineffective assistance of counsel under the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "First, the defendant must show that counsel's performance was deficient." State v. Taccetta, 200 N.J. 183, 193 (2009). "Second, the defendant must show that the deficient performance prejudiced the defense." Ibid. Defendant must prove both prongs by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___U.S. ___, 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013). "Additionally, when counsel fails to file a suppression motion, the defendant not only must satisfy both parts of the Strickland test but also must prove that his [suppression] claim is meritorious." State v. Goodwin, 173 N.J. 583, 597 (2002).
Defendant argues that the PCR judge erred in finding his claim of ineffectiveness insufficient to justify an evidentiary hearing. A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (citation omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her [ineffectiveness] claim will ultimately succeed on the merits." Ibid. The court must view the facts "'in the light most favorable to defendant.'" Ibid. (citation omitted).
To determine whether trial counsel was ineffective for failing to request a Wade hearing, "we are required to examine the law as it stood at the time of counsel's actions, not as it subsequently developed." See State v. Fisher, 156 N.J. 494, 501 (1998). At the time of trial, the "standards for determining the admissibility of eyewitness identification evidence derive[d] from the principles the United States Supreme Court set forth in" Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), which our Supreme Court adopted in State v. Madison, 109 N.J. 223 (1988). State v. Henderson, 208 N.J. 208, 237 (2011); see State v. Chen, 208 N.J. 307, 323 n.2 (2011).
The Manson/Madison standards were designed to address the "due process concerns raised by suggestive police [identification] procedures." Chen, supra, 208 N.J. at 317-18; see Perry v. New Hampshire, ___U.S.___, ___, 132 S.Ct. 716, 721, 181 L.Ed.2d 694, 703 (2012); State v. Long, 119 N.J. 439, 493 (1990). To be entitled to a Wade hearing, "[t]he defendant must make a showing of 'some evidence' that the victim's statements were the product of suggestive or coercive interview techniques." State v. Michaels, 136 N.J. 299, 320 (1994) (citation omitted); see Henderson, supra, 208 N.J. at 238.
"At the hearing, if the court decides the [police identification] procedure 'was in fact impermissibly suggestive, ' it then considers the reliability factors" to "'decide whether the objectionable procedure resulted in a very substantial likelihood of irreparable misidentification.'" Henderson, supra, 208 N.J. at 238 (quoting Madison, supra, 109 N.J. at 232) (other citations and quotations omitted). Those factors are:
"(1) the "opportunity of the witness to view the criminal at the time of the crime"; (2) "the witness's degree of attention"; (3) "the accuracy of his prior description of the criminal"; (4) "the level of certainty demonstrated at the time of the confrontation"; and (5) "the time between the crime and the confrontation."
[Ibid. (quoting Madison, supra, 109 N.J. at 239-40 (citations omitted)).]
"The State then 'has the burden of proving by clear and convincing evidence that the identifications . . . had a source independent of the police-conducted identification procedures.'" Id . at 238-39 (quoting Madison, supra, 109 N.J. at 245 (citations omitted)).
In arguing that trial counsel should have requested a Wade hearing, defendant asserts that (1) identification was the sole issue in the case; (2) Pough did not identify defendant from a photo array until almost seven days after the robbery; (3) there was substantial prior discussion about the robbery among the victims; (4) Pough saw a book of photographs before seeing the photo array; and (5) the police violated the Attorney General Guidelines by allegedly allowing an investigating officer to conduct the photo array. None of these arguments would justify a Wade hearing, let alone be sufficient to suppress Pough's identification.
First, whether identification was the sole issue in the case is neither a basis to obtain a Wade hearing, nor a factor considered at a Wade hearing.
Second, the six days between the December 24 crime and the December 30 array is not suggestive, and thus is no basis for obtaining a Wade hearing. Although "the time between the crime and the confrontation" is a factor once a Wade hearing is granted, six days hardly casts doubt on Pough's identification. See State v. Clausell, 121 N.J. 298, 327 (1990) ("The time lapse between the identification and the crime -- six weeks -- was not extensive . . ."); Madison, supra, 109 N.J. at 240, 242 ("A two month time lapse without more, however, does not cause us to conclude that the evidence of identification is inadmissible."). Furthermore, Pough had identified defendant two days earlier. In his December 28 statement, Pough told Detective Juan Garcia that the male with the gun was the same man who had played poker with him the night before the robbery, namely defendant whom he knew as "Chocolate".
Third, any discussions at the garage between the victims is not "government conduct, " "does not implicate due process concerns raised by suggestive police procedures, " and is thus not a basis for obtaining a Wade hearing. See Chen, supra, 208 N.J. at 317-18. Furthermore, in defendant's direct appeal we found that there was no proof that these discussions involved "highly suggestive words or conduct." Housey, supra (slip op. at 10). "Other than the acknowledgment by one witness that the card players at the garage talked about the robbery after it occurred, not surprising given the nature of the event, there is no hint of any improper 'co-witness contamination.'" Ibid."Even if discussions took place among the men, in the absence of any specific additional facts, their conversations were not sufficient to create a 'substantial likelihood of misidentification.'" Id . (slip op. at 11).
Fourth, examining a book with a large number of photographs is "neither unfair nor impermissibly suggestive." State v. Royster, 57 N.J. 472, 480, cert. denied, 404 U.S. 910, 72 S.Ct. 235, 30 L.Ed.2d 182 (1971). "It is typical for eyewitnesses to look through mugshot books in search of a suspect." Henderson, supra, 208 N.J. at 255. "Mug shot books: (1) contain large numbers of randomly selected photographs; (2) are kept for the purpose of investigation, not confirmation; and (3) are a resource 'shown to witnesses as a matter of course to see if a suspect [can] be found, '" and thus are not subject to all requirements for photo arrays even if the witness identifies the defendant from the mug shot book. State v. Janowski, 375 N.J.Super. 1, 6 (App. Div. 2005) (quoting State v. Ruffin, 371 N.J.Super. 371, 395 (App. Div. 2004)). Here, moreover, there is no indication that any identification was made from the book, or even that the book contained defendant's photograph. "There is no impact on the reliability of the second identification procedure 'when a picture of the suspect was not present in photographs examined earlier'" in the mugshot book. See Henderson, supra, 208 N.J. at 255.
Fifth, in the PCR proceedings, defendant noted that Detective Keith Rotsaert prepared and presented the photo array, and alleged that Rotsaert "had participated in other parts of the investigation" by taking Nichols' statement on December 28. Defendant contends that this violated the Attorney General Guidelines. Those guidelines advise that "the person conducting the photo or live lineup identification procedure should be someone other than the primary investigator assigned to the case." See State v. Herrera, 187 N.J. 493, 516 (2006).
However, there is no reason to believe that Rotsaert was "the primary investigator assigned to the case." Ibid. In fact, the trial evidence showed that Garcia was "the detective in charge of the case, " and that Garcia did not show Pough the photo array "because [he was] the detective involved in the investigation." There is thus no violation of the Guidelines as written. Further, Garcia testified that he used a detective to show the array who "wasn't involved with it so he could be neutral." Defendant has not shown that the detective who showed the array knew "the identity of the actual suspect, " and thus that he might give the "inadvertent verbal cues or body language" that the Guidelines sought to avoid. See Herrera, supra, 187 N.J. at 512, 516; see also State v. Lazo, 209 N.J. 9, 26 (2012).
Even if we assume that Detective Rotseart was involved in the investigation, and that by conducting the photo array he violated the spirit if not the letter of the Guidelines,  failure to follow the Guidelines does not itself require suppression. "[T]he Guidelines are a series of recommended best practices, " and "[t]he Attorney General expressly noted that identifications that do not follow the recommended Guidelines should not be deemed 'inadmissible or otherwise in error.'" Henderson, supra, 208 N.J. at 278; see Herrera, supra, 187 N.J. at 514-15. The Supreme Court in Henderson explicitly rejected the argument that "any violation of the Attorney General Guidelines should require per se exclusion of the resulting eyewitness identification." Henderson, supra, 208 N.J. at 292-93.
Furthermore, courts have not granted Wade hearings merely because an investigating officer was involved in an array, but instead have focused on the investigating officers' actual suggestive words or conduct. Thus, the Supreme Court in Henderson emphasized that "[t]he suggestive nature of the officers' comments entitled defendant to a pretrial hearing." Id . at 299; see id. at 291. The Court emphasized that, under its new framework as under the Manson/Madison standard, "[t]he court should conduct a Wade hearing only if defendant offers some evidence of suggestiveness." Id . at 290, 288.
Here, defendant has not offered any evidence of suggestiveness from the presentation of the photo array. There is no evidence in the trial testimony, or proffered by PCR counsel, that the detective who presented the photo array engaged in any suggestive words or conduct. Thus, defendant has failed to justify a Wade hearing.
Even if trial counsel had obtained a Wade hearing, defendant has failed to show that it would have resulted in the suppression of Pough's photo identification or trial identification of defendant. As the PCR judge stressed, Pough knew defendant before the robbery, because the evening before he had played poker with defendant for five or six hours. See Long, supra, 119 N.J. at 492 (no suppression where the witness had met the defendant the day before the crime); State v. Rodriquez, 264 N.J.Super. 261, 270 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994) (counsel was not ineffective for not requesting a Wade hearing where the witness spent several hours with the defendants). The PCR judge noted, moreover, that poker is a game that requires particular attention to the facial expressions of one's fellow player. See State v. Oates, 246 N.J.Super. 261, 269-70 (App. Div. 1991) (counsel was not ineffective for not requesting a Wade hearing where the detective witness spent forty-five minutes talking with defendant).
Furthermore, as the PCR judge pointed out, Pough had a good opportunity to observe defendant at the time of the robbery. When the robbers emerged from the garage and removed their masks under the street light, Pough was only twenty-five to thirty feet away, and had a clear full-face view of defendant for fifteen to twenty seconds. Pough without hesitation identified defendant as the man with whom Pough had played poker for hours the previous night. Knowing that defendant had just put a gun to two of his friends, Pough was extremely attentive, and indeed followed and observed defendant for several minutes.
Moreover, as we pointed out on direct appeal:
It is noteworthy that when Pough saw defendant outside the garage, he thought he could not be seen by the perpetrators. Hence, the element of fear that has been singled out as contributing to eyewitness misidentification was simply missing. Pough stated unequivocally that the person who held the gun during the robbery was the same person he had played cards with for several hours the day before.
[Housey, supra (slip op. at 10-11 (citations omitted)).]
Given Pough's opportunity to observe, his attention, his certainty, the consistency with his prior description of defendant on December 28, and the relatively few days between the December 24 crime and the December 30 array, defendant has failed to show the very substantial likelihood of irreparable misidentification needed to suppress Pough's identification.
Because a Wade hearing would not have resulted in suppression, trial counsel was not deficient in not requesting it, and there is no "'reasonable probability'" that "'the result of the [trial] would have been different.'" State v. Allegro, 193 N.J. 352, 367 (2008) (citations omitted); see State v. Little, 296 N.J.Super. 573, 580-81 (App. Div. 1997) (rejecting claim that counsel was ineffective for not requesting a Wade hearing). Defendant thus failed to present a prima facie case of ineffectiveness, so the PCR judge properly denied a hearing.