July 25, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
TROY SWINT, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3475.
Troy Swint, appellant pro se.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew Robert Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Alvarez.
Defendant Troy Swint appeals from the June 25, 2012 denial of his second petition for post-conviction relief (PCR). We affirm.
Defendant was convicted after trial of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). The victim of the kidnapping and aggravated assault was an acquaintance of defendant. Defendant was sentenced to concurrent terms resulting in a sentence to life imprisonment subject to a twenty-year parole disqualifier.
The convictions were affirmed on direct appeal, but remanded for resentencing. State v. Swint, 328 N.J.Super. 236, 264-65 (App. Div.), certif. denied, 165 N.J. 492 (2000). Thereafter, defendant unsuccessfully appealed the resentence. State v. Swint, No. A-5545-05 (App. Div. July 30, 2008), certif. denied, 197 N.J. 14 (2008).
Defendant's first PCR petition was denied. State v. Swint, No. A-2850-06 (App. Div. July 9, 2009) (slip op. at 3). The date defendant filed his second petition is in dispute. He claims he filed the petition on January 8, 2009, while the State contends it was filed in November, 2009.
Defendant mailed out his second PCR petition in January 2009 and again in May 2009. However, during that time, direct appeal of the denial of his first PCR petition was pending, and thus prevented any action on his second PCR petition. The court clerk found no record that defendant had resubmitted his second PCR petition after the July 2009 judgment on appeal of his first PCR petition. Rule 3:22-12(a)(3) requires the re-filing of a PCR petition within ninety days of the date of the judgment on direct appeal. It is unclear whether defendant resubmitted his second PCR petition within ninety days of July 9, 2009, as nothing in the appellate record allows us to verify the alleged November 2009 filing date.
In any event, Judge Vichness denied defendant's application on the grounds that it was time-barred pursuant to Rule 3:22-12, as well as on the merits. Defendant claims that trial counsel was ineffective because no Wade hearing was sought prior to trial and PCR counsel's failure to raise the issue was itself ineffective assistance of counsel.
We quote a relevant portion of the decision on defendant's direct appeal:
Newark Detective Calvin Parkman testified that he was dispatched to the hospital on June 19, 1996, at approximately 1:30 a.m. He met the victim who described to Parkman what had happened to him. Without objection, Parkman testified that the victim told him [co-defendant] . . . and a person named Troy committed the assault. The victim did not know Troy's last name. . . . Parkman also said that the victim told him that Troy pulled his mask off and he was able to look "right in his face."
[Swint, supra, 328 N.J.Super. at 247.]
Judge Vichness ruled that because the victim's identification of defendant was made of an acquaintance, not a stranger, the issue of failure to request a Wade hearing was simply irrelevant. As he put it, this was not a case of "a surprise by total strangers." Defendant and the victim "were acquaintances. They hung out in the same place. . . . He got a glimpse of Mr. Swint that night. . . ."
Furthermore, at trial, counsel vigorously attacked the victim's identification on cross-examination, and attacked the identification in his closing arguments. Trial counsel highlighted the inconsistency between the victim's description of "Troy" as being "light-skinned" while defendant was actually "dark-skinned." Although no Wade motion was filed, trial counsel launched a broad-based attack on identification as part of the general defense to the charges.
As Judge Vichness also noted, some proffer of impropriety has to be made before a Wade hearing would be warranted. To date, defendant has not identified any suggestive behavior on the part of the authorities resulting in the risk of misidentification by the victim. Rather, defendant continues to dispute the inconsistency between the victim's description of his assailant as being a light-skinned man while he has a darker skin color. Nothing about the identification suggested it was tainted, or the product of some improper procedure. No out-of-court identification was ever conducted by the authorities, and the only identification by the victim after the incident was made in court. On direct appeal, defendant attacked the judge's instruction to the jury on identification itself. Judge Vichness ultimately concluded that there was "absolutely no indication that the performance of [trial counsel] as his attorney fell below any standard."
On appeal, defendant contends:
THE PCR COURT ERRED IN APPLYING THE 2010 PCR COURT RULE AMENDMENTS TO THE DEFENDANT'S PCR PETITION WHICH WAS FILED AND PENDING YEARS BEFORE THE NEW RULE AMENDMENTS AND BY FAILING TO ADDRESS THE EXCUSABLE NEGLECT AND FUNDAMENTAL INJUSTICE EXCEPTIONS TO THE PROCEDURAL BARS WHICH THE DEFENDANT RAISED.
THE RULING OF THE PCR COURT THAT DEFENDANT WAS NOT DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY HIS FAILURE TO MOVE FOR A WADE HEARING TO SUPPRESS THE IN-COURT IDENTIFICATION, AND THE INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR FAILING TO RAISE THE CLAIM ON DIRECT APPEAL, IS NOT SUPPORTED BY SUFFICIENT AND CREDIBLE EVIDENCE IN THE RECORD, THEREFORE, THE DEFENDANT'S CONVICTION SHOULD BE REVERSED.
We agree with Judge Vichness's analysis, and add only the following comments.
A defendant must establish two elements to prove ineffective assistance of counsel: first, that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must demonstrate that counsel's deficiency so prejudiced the defense that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).
A Wade hearing is warranted where some possibly suggestive or questionable out-of-court identification is made by a witness at the behest of the authorities, or even some third party. These potentially suggestive out-of-court identifications then call the reliability of the in-court identification into question. See State v. Rodriquez, 264 N.J.Super. 261, 268-70 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994). No Wade hearing is required, however, where the witness, like the victim in this case, never made an out-of-court identification, or has an independent ground for his identification such as a prior acquaintance with the alleged perpetrator. See State v. Basit, 378 N.J.Super. 125, 129 (App. Div. 2005); State v. Ruffin, 371 N.J.Super. 371, 391, 394 (App. Div. 2004).
Hence it was not ineffective assistance for trial counsel to have failed to seek a Wade hearing. Such an application would have been without merit. Trial counsel's performance, and appellate counsel's performance, were therefore well within the range of the professionalism required by the Sixth Amendment. Even had such a hearing been conducted, the outcome would not have been any different as there was no earlier out-of-court identification, no police suggestiveness as the victim had independent knowledge of the defendant's identity as he was an acquaintance. Defendant does not meet either prong of the Strickland standard.