STATE OF NEW JERSEY v. MICHAEL J. FERGUSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4203-03T44203-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. FERGUSON,

Defendant-Appellant.

 

Submitted October 6, 2005 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, 96-05-0261-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sharon Bittner Kean, Designated Counsel, of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Ferguson appeals from the Law Division's denial of his application for post-conviction relief (PCR). We affirm.

Following a jury trial from July 27, 1998 to July 29, 1998, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), (count one); second-degree burglary, N.J.S.A. 2C:18-2, (count two); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), (count three); first-degree robbery, N.J.S.A. 2C:15-1, (count four); and one count each of terroristic threats, N.J.S.A. 2C:12-3(a) and N.J.S.A. 2C:12-3(b), (counts five and six). The trial judge granted the State's motion for an extended term based on defendant's status as a persistent offender, N.J.S.A. 2C:44-3a, and imposed a forty-year term of imprisonment with a twenty-year parole disqualifier on the first-degree robbery conviction; a consecutive five-year term on the third-degree possession of controlled dangerous substance conviction; and concurrent lesser terms on the remaining convictions. The court also imposed appropriate fines and penalties.

After the court denied defendant's motion for reconsideration of his sentence on April 6, 2000, defendant filed an appeal with this court. He raised the following issues:

POINT I THE TRIAL COURT ERRONEOUSLY TRIED THE DEFENDANT IN ABSENTIA AND ERRONEOUSLY INSTRUCTED THE JURY REGARDING THE ALLEGED FLIGHT OF THE DEFENDANT DURING THE TRIAL.

POINT II THE TRIAL COURT FAILED TO CONDUCT A VOIR DIRE OR REMOVE A JUROR AFTER THE JUROR APPROACHED THE PROSECUTOR DURING THE TRIAL.

POINT III THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION FOR SENTENCING TO AN EXTENDED TERM OF IMPRISONMENT BECAUSE THE STATE FAILED TO MEET ITS BURDEN OF PROOF REGARDING THE DEFENDANT'S PRIOR CONVICTIONS.

POINT IV THE COURT SHOULD REVERSE THE DEFENDANT'S CONVICTION BECAUSE HE HAD INEFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

We affirmed. State v. Ferguson, No. A-3689-99 (App. Div. Nov. 14, 2001).

On July 9, 2002, defendant moved for post-conviction relief. On December 9, 2003, the Law Division denied defendant's application and memorialized that decision in a February 13, 2004 order.

In this appeal, defendant raises the following arguments:

POINT ONE

DEFENDANT'S CONVICTION MUST BE REVERSED SINCE HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL AND ON HIS APPEAL TO THIS COURT. AT MINIMUM, DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON THE CLAIMS RAISED IN HIS PETITION FOR POST CONVICTION RELIEF.

A. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM, ORDERING AN EVIDENTIARY HEARING WHERE, AS HERE, DEFENSE COUNSEL'S STRATEGY WAS SO DEFICIENT THAT DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

B. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM, ORDER AN EVIDENTIARY HEARING WHERE, AS HERE, DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY'S FAILURE TO REQUEST A PRE-TRIAL HEARING PURSUANT TO UNITED STATES V. WADE.

C. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM, ORDER AN EVIDENTIARY HEARING WHERE, AS HERE, DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS COUNSEL'S FAILURE TO RETAIN THE APPROPRIATE EXPERTS.

D. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM ORDER AN EVIDENTIARY HEARING WHERE, AS HERE, DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

E. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUES RAISED IN HIS PETITION FOR POST CONVICTION RELIEF.

We have considered defendant's contentions and conclude that none warrant reversal of his conviction. With the exception of defendant's arguments concerning the "flight charge" given to the jury, and the failure of counsel to request a Wade hearing, defendant's remaining arguments are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

The facts underlying defendant's conviction were recited in our November 14, 2001 opinion. We will not repeat them at length here. Suffice it to say that defendant was convicted of robbing and assaulting eighty-one-year-old Margaret Lester on September 4, 1995 at her home in Wildwood. He beat her and took $106 from her pocketbook; before leaving, he threatened to rape her.

Defendant was later identified by Lester, as well as her daughter, Willa Mae Holloway, who was visiting her mother on the day of the attack. Several weeks after the incident, Lester was unable to identify defendant from a series of photographs of possible suspects. She did, however, identify him in court as her assailant. While Holloway did not observe defendant at the time the crime was committed, she saw him earlier that day when he was at Lester's home to sell her meat. When, in the early morning hours of the day following the attack Holloway went to the police station, she saw defendant sitting in a room with his two children on his lap; she immediately identified him as the man who was at her mother's house on the day of the attack.

We first turn to defendant's argument that counsel was ineffective for failing to request a Wade hearing. The central issue at trial was whether defendant was the assailant; in other words, the identification of Lester's assailant. Defendant submits that because the victim was unable to identify his photograph in the series of photographs shown to her several weeks after the incident, his attorney was ineffective by not requesting a Wade hearing, and that failure entitles him to a new trial.

The standard for evaluating a defendant's claim of ineffective assistance of counsel is well-settled. Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, 10.

To establish a prima facie case of ineffective assistance of counsel, a defendant must first show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Next, a defendant must demonstrate that there exists "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. The precepts of Strickland have been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). A strong presumption exists that counsel rendered adequate assistance. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695-96. Acts or omissions of counsel must amount to more than mere tactical strategy. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

It is against this standard that we measure defendant's arguments. A Wade hearing, used to determine the admissibility of an identification, should be permitted when a defendant presents some evidence of impermissible suggestiveness in the identification process. State v. Cherry, 289 N.J. Super. 503, 517 (App. Div. 1995). First, the court must decide whether the procedure in question was in fact impermissibly suggestive. State v. Madison, 109 N.J. 223, 232 (1988). This inquiry must take account of the totality of the circumstances of the identification. Id. at 234. The identification will be excluded only when "'all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist.'" Ibid. (quoting State v. Farrow, 61 N.J. 434, 451 (1972)).

Suggestiveness alone is insufficient to require exclusion of an identification. Cherry, supra, 289 N.J. Super. at 517. If a court finds the identification procedure to be impermissibly suggestive, the court must then decide whether the objectionable procedure resulted in a "'very substantial likelihood of irreparable misidentification.'" Madison, supra, 109 N.J. at 232 (quoting Simmons v. United States, 390 U.S 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). This second part of the analysis focuses on the reliability of the identification, which is also to be determined from the totality of the circumstances. Id. at 232-33. Specifically, in assessing reliability, courts should consider the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated at the time of the confrontation, and the time between the crime and the confrontation. Id. at 239-40.

Here, defendant's claim is that Holloway's identification of defendant at the police station would have been suppressed at a Wade hearing; and, because Lester was unable to pick defendant's photograph from a photo array several weeks after the incident, she must have relied on her daughter's identification of defendant to support her own in-court identification of defendant that took place three years after the incident. Thus, defendant posits that had a Wade hearing been held, neither Holloway's out-of-court identification, nor Lester's in-court identification, would have been admitted in evidence. And, because the focus of the trial was on the identification of the assailant, a new trial is warranted. We are not persuaded.

First, Holloway did not observe defendant during the commission of the offense; rather, she saw him at the house earlier that day. She identified defendant, not as the offender, but as the person who sold meat to her and Lester.

More significantly, when Holloway arrived at the police station, the police did not direct her to a specific individual and ask if she could identify him. Rather, she coincidentally saw defendant sitting in a room with his two children on his lap. It was at that point that she immediately identified him as the man who was at the house on the day of the attack. She made that identification without any suggestion or prodding by any of the police officers. The identification was not impermissibly suggestive so as to taint the identification. The circumstances simply do not reveal a situation where the identification was imposed upon her by law enforcement officials. See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1206 (1967) (while practice of showing suspect singly to persons for purposes of identification and not as part of lineup has been widely condemned, whether due process violation occurs depends on totality of circumstances surrounding identification). Consequently, we agree with the PCR judge who concluded that Holloway's identification of defendant at the police station "almost sounded like happenstance rather than anything that the police had set up."

The factors also fail to establish a likelihood of irreparable misidentification. Holloway testified that she had an opportunity to observe defendant for fifteen to twenty minutes while he was at Lester's home on the day of the assault. Her identification was therefore reliable.

Finally, we address defendant's claim that trial counsel was ineffective for failing to vigorously oppose the "flight charge" given by the trial court to the jury. Defendant's arguments on this point are similarly without merit.

The facts underlying the flight charge are as follows. Defendant was in court on the first day of trial. After that, he failed to return, and his absence was unexplained. On direct appeal, we concluded that while the facts supported a conclusion that defendant knowingly waived his right to be present at trial, and the trial court was therefore correct in trying him in absentia, the facts did not support a conclusion that defendant fled to escape conviction so as to warrant a flight charge. See State v. Andrial, 203 N.J. Super. 1, 6-7 (App. Div. 1985). See also State v. Horne, 376 N.J. Super. 201, 210-11 (App. Div. 2005), where, in an opinion decided well after the trial in this case, we reaffirmed that mere absence from trial does not constitute flight as to require that the jury be given the flight charge.

Nevertheless, despite that giving the flight charge here was error, we concluded that error was harmless in the face of the overwhelming evidence of defendant's guilt. State v. Ferguson, supra, No. A-3689-99, (slip op. at 11). Defendant did not appeal that decision to the New Jersey Supreme Court.

That being said, even viewing defendant's arguments substantively, we find no basis to reverse his conviction. In his PCR application, defendant claims that trial counsel was ineffective by failing to "vigorously oppose" the flight charge. The record simply does not support that argument. Counsel did impose his objections to the charge being given. During the charge conference, he stated the following:

Your Honor, when we came in for the hearing on the motion that, . . . again, it was his requirement to be here, but if he chose not to appear for any lawful reason, or any reason whatsoever, that the trial would proceed without him and a verdict could be entered in his absence, Judge.

And I think under those circumstances, . . . his absence indicates his agreement of that scenario to be tried in absentia, and the fact that he hasn't appeared or not shouldn't . . . allow the standard flight instruction, which normally applies to . . . a gentleman who, upon the arrival of the police, basically takes off and . . . runs to avoid being caught and prosecuted in the first instance.

Here, we have an individual who was prosecuted. All the evidence is assembled in the case and the only . . . additional factor is the fact that after the jury has commenced -- at least listened to the State's testimony, has again at this point, for an unexplained reason, failed to show up in court.

And I really don't think that . . . it calls for . . . the standard flight instruction, Judge . . . I think at this time, it would do prejudice, and balancing the scales of justice, I don't -- you know, the defendant not appearing -- that in and of itself is enough injury to the defendant with or without any instruction or cautionary instruction by Your Honor.

Having reviewed counsel's argument, we do not find it to have been deficient as measured by an objective standard of reasonableness. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also Fritz, supra, 105 N.J. at 58 (adequate assistance of counsel must be measured by standard of reasonable competence).

 
Affirmed.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

(continued)

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A-4203-03T4

October 18, 2005