STATE OF NEW JERSEY v. ERIC MARCUS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3267-04T43267-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC MARCUS,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 21, 2006 - Decided April 18, 2006

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 96-10-3441.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from an order denying his post-conviction relief (PCR) petition. Tried to a jury, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and sentenced to ten years imprisonment. In an unreported decision, we affirmed his conviction (A-3833-98T4, May 4, 2000), and the Supreme Court denied defendant's petition for certification. State v. Marcus, 165 N.J. 491 (2000). Defendant's PCR petition was heard on December 21, 2004, by Judge Honigfeld, who also presided over defendant's trial. After oral argument by defendant's assigned counsel and the prosecutor, the judge denied the petition.

On appeal, defendant raises a single issue, that he "was denied effective assistance of counsel in that his attorney failed to point out critical inconsistencies in the victim's identification of the man who robbed her." We find this argument lacking in merit, R. 2:11-3(e)(2), and we reject it and affirm. We nevertheless set forth a brief recitation of the facts underlying the conviction and comment briefly on the appeal issue.

We repeat the facts of the robbery and the identification by the victim of defendant as set forth in our previous decision:

The State's evidence came primarily from the victim, Wendy Elizabeth Lewis. She said the robbery occurred around 6:15 p.m. on June 10, 1996, at her home on North Walnut Street, East Orange. She had just returned with her two and one-half year old daughter from shopping for groceries. As they started walking up the lighted hallway stairs someone came up behind her and grabbed her head. She turned and was able to see her assailant, who demanded that she give him the gold chain that was around her neck. Her daughter began to scream, and she told him to take the chain. He pulled the chain from her neck and ran. The next day, Lewis reported the incident to the police. An officer came to her apartment and received a description of her assailant, which he recalled as being: "Black male, approximately 27 years old, approximately five-eight in height, approximately 150 pounds, brown colored Afro, brown eyes, medium complexion, brown colored mustache, wearing a dark colored short-sleeved shirt, black denim jeans." In part because she indicated that she would be able to identify her assailant, the officer brought her to the police station where a detective showed her photographs using a computer monitor. The monitor displayed six to twelve photographs on the screen at one time. After viewing some 400 photographs, Lewis picked out a picture of the defendant and positively identified him as her assailant.

Lewis identified defendant in court during the trial and reaffirmed her out-of-court identification, as well. The only witnesses other than the victim were the officer who initially interviewed the victim and the detective who showed her the photographs.

There was no physical evidence connecting defendant to the crime, and defendant made no inculpatory statements. The critical issue in the trial was identification, and Lewis' testimony provided the sole basis for the identification of defendant as the assailant. Defendant argues on appeal that he was denied the effective assistance of counsel because his trial counsel failed to adequately cross-examine Lewis. In particular, he finds fault with the failure of his trial counsel to interrogate Lewis about inconsistencies in her description of the assailant as initially given to the responding investigating police officer and later at trial. These differences pertain primarily to the assailant's facial hair and hair on his head. We note, however, that these discrepancies were placed before the jury by virtue of Lewis' trial testimony and the testimony of the responding officer. And, in her summation, defendant's trial counsel did refer to the discrepancies.

In her cross-examination of Lewis, defense counsel focused on the various distractions affecting Lewis that might well have induced the jury to question the reliability of her identification of the assailant. Counsel elicited from Lewis that she was tired, having just worked all day at her full-time job and gone grocery shopping; that she had much on her mind of what activities were still required of her that night, including feeding and bathing her child and getting her to bed; that she was very concerned for the well-being of her daughter, who was very frightened by the traumatic episode, and that when her daughter began to cry and scream Lewis turned her attention to the child; that she was concerned that her assailant might possess a weapon and that she looked at his hands for that purpose; and that her primary concern was getting herself and her daughter to their apartment safely.

In making his findings at the conclusion of the PCR hearing, Judge Honigfeld gave this assessment of defendant's claim that his trial counsel's cross-examination of Lewis was ineffective:

I did preside over the trial. It was a very brief one. I think it took about a day, basically. It certainly was an identification case. But I cannot find anything untoward in the handling of the case by defense counsel.

She certainly did allude, in her summation, to some of the verbal descriptions and any possible inconsistencies in the defendant's description. And I think her not perhaps pursuing that verbal aspect more on cross-examination is basically a matter of trial tactic.

Because, very basically, it's a situation where differences were already testified to. And I think cross-examining the victim, Ms. [Lewis], any more might have, at least on a tactical basis, caused the victim to give some type of an explanation which might not have been as helpful to her case and position.

And while her questioning of the victim, on cross-examination, may have only taken four pages of transcript, it was what I would term a vigorous, very logical cross-examination on the victim's opportunity to make observations and any possible distractions which the victim may have had. She certainly brought out those possibilities and really created a factual question that was properly for the jury to resolve.

So I cannot see any ineffective assistance of counsel. And I think defense counsel at the trial did really a more than adequate job in cross-examining the victim.

For a defendant to be entitled to relief because of a claim of ineffective assistance of counsel, he must satisfy the Strickland/Fritz test by establishing that counsel's performance was deficient and that a reasonable probability exists that but for counsel's unprofessional errors the result of the proceeding would have been different. A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). The deficiency prong is not met where the challenge is of trial counsel's strategic choices made after a thorough investigation of the law and facts as they relate to plausible options. State v. Davis, 116 N.J. 341, 357 (1989). Such strategic choices are "virtually unchallengeable." Ibid.

Trial counsel obviously made a strategic choice here to cross-examine Lewis, a sympathetic victim who had her two-and-one-half year old child in tow, politely, pointing out all of the circumstances that might have interfered with her ability to make a reliable identification under the traumatic circumstances with which she was confronted. The cross-examination was probing and effective. As far as discrepancies in the description Lewis gave on different occasions, as Judge Honigfeld pointed out, this information was before the jury and counsel referred to it in her summation. Had counsel questioned Lewis about it, there was the risk that Lewis would explain away the discrepancies and take that issue away from the defense. These are the kind of strategic choices that trial counsel are routinely called upon to make. So long as they are reasonable and well-grounded in light of the overall context of the trial, they are not subject to being second-guessed in a PCR proceeding. See Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir.), cert. denied, 513 U.S. 1022, 115 S. Ct. 589, 130 L. Ed. 2d 502 (1994).

Neither prong of the Strickland/Fritz test was met, and defendant's PCR petition was properly denied.

Affirmed.

 

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-3267-04T4

April 18, 2006