July 17, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LATEEF JONES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2012
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-11-1353.
Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah R. Terry, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Kennedy.
Defendant appeals from the trial court's order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from his 2006 convictions by a jury of third-degree aggravated assault (significant bodily injury), N.J.S.A. 2C:12-1b(7); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-2a; third degree aggravated assault, N.J.S.A. 2C:12-1b(2); and second-degree and fourth-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7a and -7b. The certain persons offenses were charged in a separate indictment and tried immediately after the trial of the other charges. After merger, defendant was sentenced to an aggregate seven-year term with a three-year parole disqualifier on the convictions in the first indictment, consecutive to an eight-year term, with a five-year parole disqualifier, on the certain persons indictment. We affirm.
Defendant's convictions arose out of a shooting in Elizabeth. We reviewed the trial evidence in our opinion affirming defendant's convictions and sentence on direct appeal. State v. Jones, No. A-5090-05 (App. Div. Dec. 31, 2007), certif. denied, 194 N.J. 445 (2008).
On April 9, 2004, at around 10:20 p.m., Danielle Albano, was walking to her sister's house near Fifth Avenue and Broadway in Elizabeth. She heard a noise behind her, turned around and saw defendant running towards her with a gun. Albano turned and fled. While running, she heard the screeching sound of a car and five or six shots. Albano did not feel the first two shots. When she realized that she had been shot, she discovered wounds in her hip and both thighs. She also saw Jones enter a green Intrepid which had rounded the corner.
Albano called her brother on her cell phone to inform him that she had been shot. She stumbled to her sister's house and collapsed on the stairs. The police arrived and questioned Albano about the incident. She did not identify defendant as the shooter that evening because she was medicated, in pain and scared.
Albano had seen defendant on numerous occasions in the neighborhood and had three or four verbal encounters with him but knew him only as "Beefy." In March 2004, defendant told Albano that a "girl was looking for [her]" and he inquired about her sexual orientation. A week and half later, defendant stated to Albano, "get out of here before I smack the shit out of you." Defendant made the same comment to Albano a week later. Both incidents occurred when defendant was approximately five feet away from Albano.
A few months after the shooting, Albano informed the police that defendant had shot her. She testified that she was afraid of possible repercussions if she identified defendant as the person who shot her. Before visiting the police station, Albano testified that she learned defendant's real identity as a result of the police report obtained by her mother. After encouragement from her partner, Albano contacted the authorities to identify her assailant. At the police station, Albano gave a statement and identified Jones from an array of six photographs as the person who shot her. At trial, she testified that she saw defendant's face clearly on the night of the shooting and he wore the same clothing as he had on previous occasions.
During her testimony, Albano revealed that on March 28, 2005, she pled guilty to third degree possession with intent to distribute and received a three-year sentence in State prison. She insisted that she did not receive special consideration or leniency in her plea agreement in exchange for her trial testimony.
Rausheta Davis, defendant's girlfriend, testified on his behalf. Davis stated that on the night of the shooting, she, defendant and another woman were watching television and listening to music at home. Davis testified defendant was home all evening. Davis admitted that she failed to provide this information to the authorities when Jones was arrested in 2004, and only provided this information in March 2005 after she was contacted by Jones' defense attorney.
[Id. at 2-4.]
In addition to recognizing defendant from face-to-face verbal encounters, Albano also testified at a preliminary hearing under N.J.R.E. 104 that she had often seen defendant in her neighborhood engaging in drug sales. Albano also testified at the 104 hearing that before the shooting she sold drugs in the same area. However, the court barred the State from eliciting evidence to establish that defendant was motivated to shoot Albano because she was encroaching on his "turf."
On direct appeal, we rejected defendant's challenge to his consecutive sentence. Although the judge and both counsel believed, incorrectly, that a consecutive sentence was required, we found the error harmless as the judge stated he would have imposed a consecutive term independent of any statutory direction. Id. at 7.
We also rejected defendant's argument that the verdict was against the weight of the evidence. Although we noted that we were not required to address the issue, since defense counsel did not file the requisite motion, Rule 2:10-1, we reached the merits and concluded that Albano's identification was substantial evidence in support of the verdict.
Contrary to defendant's contention, substantial evidence in the record supports this verdict. Before the shooting, the victim encountered defendant numerous times in the neighborhood. She testified that on the day of the shooting defendant wore the same clothing as he had worn during her previous encounters with him. Although it was dark, Albano was not more than twenty-feet from Jones and she saw his face before she turned and ran. The victim also expressed a credible reason for declining to identify defendant earlier. Quite simply, she was afraid.
[Id. at 6.]
Defendant filed his pro se PCR petition in August 2009. Appointed counsel primarily argued that trial counsel was ineffective because she failed to move for a judgment notwithstanding the verdict, and did not argue for a concurrent sentence. Judge Joseph P. Perfilio rejected both arguments, reasoning, in part based on our opinion on direct appeal, that defendant suffered no prejudice from counsel's actions. Judge Perfilio also rejected defendant's argument, expressed in his pro se petition, that he was denied effective assistance of counsel because his trial counsel did not move to exclude the victim's in-court identification of defendant.
On appeal, defendant renews his argument regarding trial counsel's failure to file a Wade motion and her failure to seek a concurrent sentence; and he raises a new issue that trial counsel was ineffective by failing to investigate a second alibi witness. He presents the following points for our consideration:
THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial And Appellate Counsels' Failure To Challenge Ms. Albano's Out-Of-Court and In-Court Identifications Of Mr. Jones Amounted To Ineffective Assistance Of Counsel.
B. Trial And Appellate Counsels' Failure To Investigate Ms. Burton As An Independent Alibi Witness Amounted To Ineffective Assistance (Not Raise [sic] Below).
C. Sentencing Counsel Rendered Ineffective Assistance Of Counsel When He Failed To Advocate For A Concurrent Sentence For The Second-Degree Certain Persons Not To Have Weapons Charge, N.J.S.A. § 2C:39-7(b) (Count One); Under Indictment Number 04-11-1354-I.
D. The Complained-of Errors, Cumulative Deprived Defendant Of His Right Of Effective Assistance (Not Raise [sic] Below).
THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT'S [sic] ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed.2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421.
We apply the well-settled two-prong test for establishing ineffective assistance 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) (stating that a petitioner must establish (1) his or her counsel's performance was deficient and he or she made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he or she was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
However, "a petitioner must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." Ibid.; see also R. 3:22-10(e)(2) (stating court shall not hold evidentiary hearing if "defendant's allegations are too vague, conclusory or speculative"). A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J.Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). A court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997).
Where a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). For example, where a petitioner complains his or her counsel should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his [or her] Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998). The same rule applies to a petition grounded on an alleged failure to file a Wade motion.
We consequently must review the legal principles governing a Wade motion. Although the Supreme Court revised the applicable standard in State v. Henderson, 208 N.J. 208, 288-94, 300-02 (2011), that revision was made prospective. The standard in effect at the time of defendant's trial was restated in State v. Herrera, 187 N.J. 493, 503-04 (2006). To determine whether an identification should be excluded, a court was required "first . . . [to] ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Ibid. (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977), and State v. Madison, 109 N.J. 223, 233 (1988)). In considering the second step, the court must consider whether the procedure created a "very substantial likelihood of irreparable misidentification." Madison, supra, 109 N.J. at 232.
The test also requires a court to consider the "totality of the circumstances" and to weigh against the suggestive procedure five factors: "'the opportunity of the witness to view the criminal at the time of the crime, the witness's 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.'" Herrera, supra, 187 N.J. at 506-07 (quoting Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154).
The Manson/Madison test is addressed to impermissibly suggestive police identification procedures. See Perry v. New Hampshire, __U.S. __, 132 S.Ct. 716, 720-21, 181 L.Ed.2d 694, 703 (2012) (noting that pre-trial screening for reliability under United State Supreme Court decisions "turn on the presence of state action" in the form of "improper law enforcement activity"); State v. Chen, 208 N.J. 307, 317-18 (2011) (noting that private activity suggesting an identification does not implicate due process concerns). Our Court, contrary to the United States Supreme Court in Perry, held in Chen that a trial court, in the exercise of its evidentiary gatekeeping function, shall require a preliminary hearing in certain cases involving private conduct affecting an identification. Id. at 327. A defendant must surmount a higher threshold when challenging an identification allegedly tainted by private activity. Ibid. The challenger must present evidence of "highly suggestive circumstances as opposed to simply suggestive conduct." Ibid. But, Chen, like Henderson, has only prospective effect. Id.
Applying these principles, we conclude defense counsel was not ineffective by failing to file a Wade motion, because we are unconvinced the motion would have been successful.
First, defendant argues that Albano's identification was impermissibly suggested by her review of a police report that allegedly identified "Beefy" by his formal name, Lateef Jones. However, the police did not supply the report to Albano. Albano's mother obtained the police report of the shooting and showed it to her daughter. Inasmuch as defendant has presented no evidence that the police directed the mother's action, any suggestiveness does not implicate due process concerns, nor trigger the Manson/Madison test.
Second, there is no cognizable evidence identifying the police report that the victim actually viewed. Neither attorney at trial asked the victim to identify the report from which she first learned in April 2005 that the person she knew as Beefy was Lateef A. Jones. Defendant asserts in his brief, without evidential support, that Albano viewed an April 9, 2004, report in April 2005. That report described a "person involved" as "Lateef A Jones (AKA Beef), a black male." The report also stated, "At approximately 2330 hrs, Sgt. Marcus received an anonymous phone call stating that the shooting of Danielle Albano happened on S. Park St and the shooter was Lateef A Jones AKA Beef."
Third, even if the victim read the cited report, it was not so highly suggestive as to render Albano's identification unreliable. The police report did not include a photograph of defendant. Although Albano did not initially name her attacker, when she did so on May 12, 2004, she described him as "'Beef' or 'Beefy.'" She said that he was a drug dealer on South Park Street; he had dreadlocks; and weighed close to 300 pounds and was about six-feet-one-inch tall. Roughly a month later, Albano identified defendant from a photo array that defendant does not challenge.
Under the totality of the circumstances, there was not a "substantial likelihood of irreparable misidentification." Albano testified that she knew defendant as a drug dealer who objected to her intrusions into his turf. Her statement was corroborated by her arrest and plea to drug offenses, and defendant's arrest for similar offenses, as described in the police reports. Albano saw defendant on numerous occasions, plying his illegal trade, and had repeated face-to-face confrontations. He had threatened to hurt her. She plausibly explained that her failure to identify defendant sooner than she did was not due to an inability to identify her attacker, but a fear to do so. Albano testified with great certainty that defendant was her attacker, once she overcame her reluctance to cooperate with the investigation and ultimately, prosecution. Under the totality of circumstances, we do not view Albano's identification to be unreliable. Therefore, trial counsel was not ineffective by failing to file a motion to exclude it.
Defendant's remaining points lack sufficient merit to warrant extended discussion. R. 2:3-11(e)(2). Although both counsel and the trial judge erred in concluding that the certain persons sentence had to be consecutive, we previously held that the error was harmless. The trial judge was persuaded that a consecutive sentence was warranted apart from any perceived statutory mandate.
Defendant's argument that trial counsel was ineffective by failing to investigate a second alibi witness, Virginia Burton, fails on two grounds. First, defendant did not raise this argument before the trial court, and "[a]n appellate court ordinarily will not consider issues that were not presented to the trial court." State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Second, although Davis, defendant's girlfriend, testified that Burton joined her and defendant in watching television and listening to music at home the night when Albano was shot, defendant presents no prima facie proof that Burton would corroborate Davis's testimony. See Fritz, supra, 105 N.J. at 64-65 (rejecting claim of ineffectiveness based on absent witnesses where defendant does not identify the witnesses nor describe their testimony). Defendant presents no certification from Burton. Consequently, his claim of ineffectiveness rests on a bald assertion.
In sum, defendant has failed to present a prima facie case of ineffective assistance.