STATE OF NEW JERSEY v. JOSEPH ARUANNO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5509-06T45509-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH ARUANNO,

Defendant-Appellant.

_________________________________________

 

Submitted March 18, 2009 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 97-01-0016.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, 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

In this appeal, defendant argues that his post-conviction relief petition, which asserted a denial of his Sixth Amendment right to the effective assistance of counsel, was erroneously denied. We agree defendant was entitled to an evidentiary hearing regarding his attorney's failure to seek a Wade hearing concerning the minor victim's identification of him at a showup, and we remand for that and other purposes.

I

Defendant was charged with second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

The jury heard testimony during a three-day trial in 1998 from G.B., who was then ten-years old. G.B. described how she and her younger sister were playing on a porch near her apartment in Wildwood, on December 10, 1996, when an unknown man walked up, "put his hand down [her] pants," and said something she could not remember. G.B. yelled "stop," and ran inside to her mother. G.B.'s mother testified that when G.B. came running to her after yelling "stop" it was approximately 5:30 to 6:00 p.m. G.B.'s mother testified that outside, at that time, it was "pretty dark."

The police were called within minutes. Before their arrival, G.B. gave her mother a description of the man who touched her. According to the mother's testimony, G.B. said "he had dark hair with like a wave in the back. He had a mustache. He was not fat but she said he looked like her uncle [because] his face was a little chunky." G.B. described to her mother that the man "was a little bit shorter than her dad," who is six feet tall, and that the man was wearing jeans and a "black" or "dark" jacket with "the zipper" up, and with "fur around the collar."

Before the police arrived, G.B.'s mother, uncle and grandfather drove around the neighborhood but were unable to locate the man described by G.B. Officer McShaffry was the first to arrive at G.B.'s home; according to his testimony, he arrived approximately "a minute" after he received the 5:39 p.m. call. G.B.'s mother gave the officer a "maybe 30 seconds, a minute" description of what occurred; he then spoke with G.B. Over the next "minute, a minute and a half at the most," G.B. described for him what occurred and gave a description of the man who accosted her. According to Officer McShaffry, G.B. said he "was a white male who had black hair, medium build, about my height, somewhere close to my height[, who] was wearing a pair of blue jeans, a blue jacket and she went on to say that the blue jacket had a fuzzy collar that surrounded the jacket"; the jacket "was zipped up like further [than] normal like up to the neckline." G.B. also told Officer McShaffry that the man departed in a westward direction "towards the bay." Officer McShaffry then left the scene, knowing that another officer was on the way to G.B.'s home.

Officer James Nanos arrived as Officer McShaffry was leaving. At that point, Officer McShaffry received a radio transmission from Officer Nanos, who indicated he saw an individual, fitting the description given by the child, walking toward the bay from the area of G.B.'s home. Officer McShaffry described what happened next:

I observed a white male. He was walking away from my position. He was approximately five foot ten. He had blue jeans on. He had a dark blue jacket and a black fuzzy collar.

I noticed right away that the subject walking away from [me] looked back and observed me in the marked police car and he began to walk a little faster. And then he was like into a slow jo[g]. He wasn't running. He was walking faster th[a]n when he first saw me.

I made the right, turning onto New Jersey Avenue. I knew the next, next property over was a Wawa with a parking lot. I pulled into the Wawa parking lot and went past the suspect, the subject at first and I exited my car. As I got out of my car, I approached the subject and began to speak to him.

G.B. and her mother were still at home when Officer Nanos, who was still with them, was advised by radio that a suspect had been apprehended. As G.B. testified, "they said . . . they caught him -- they think they have him."

G.B. and her mother were brought to the Wawa where defendant was in police custody. G.B. testified on direct that she identified the man under arrest at the Wawa as the man who touched her. On cross-examination, G.B. testified that when she first saw defendant at the Wawa she told the police she was "not too sure" whether he was the man who touched her. However, she testified that he was not then facing forward. The police asked her if she wanted to hear him speak and with her consent they had defendant say something over the radio. G.B. testified that "when I heard [his voice], I was thinking about what it sounded like and then I was sure it was him." She also testified that defendant turned around so she could "see his whole face," and then she was "sure" that was the man who touched her.

In addition, during her testimony, G.B. identified a photograph of defendant as depicting the man who touched her. However, when asked to make an in-court identification, G.B. said she was "not sure."

The jury was shown a videotaped interview of G.B. that was conducted by Investigator William Kirkbride of the prosecutor's office on December 11, 1996. In addition, the State presented the testimony of Detective Kenneth Gallagher, who interrogated defendant after his arrest. Detective Gallagher testified that he advised defendant of his Miranda rights, which defendant voluntarily waived. The interview started at 7:25 p.m. According to Detective Gallagher, defendant told him that he arrived in Wildwood by bus at approximately 5:30 p.m. and spent approximately twenty minutes in a nearby McDonald's fast food restaurant. Defendant, who stated he went to Wildwood to meet a female friend, then described the route he walked before being apprehended. He denied being on the street on which G.B. lived and would not identify the female friend to whom he referred.

After approximately two hours of similar questioning and similar responses, Detective Gallagher then described what happened next:

A. The interview continued. He remained with the story. I tried to get the information about the person that he was trying to visit or the location where that person lived but he refused to give it to me.

Q. So then what happens?

A. As the interview[] continued with him, he began to slump over in the seat, slide down a little bit, his head faced towards the floor, his eyes were closed and he began to cry.

. . . .

Slumps down, head down, eyes closed, he begins to cry. He started to express remorse for the victim. He told [me] he was sorry for what the victim had [sic] and what had occurred to her.

Q. So at this point now, he's crying and saying he's sorry for the victim?

A. Yes.

Q. Does he then at that point, change his [description of his] direction of travel?

A. What he says to me is that I asked him if he had been on the porch of the victim or had any contact with the victim? He started to nod his head in an affirmative matter, up and down. He continued to cry as he did so.

Q. What happened next?

A. He basically says, just give me the confession, I'll sign it. I don't want --

Q. What was your -- I'm sorry.

A. I don't want to put this little girl through that is exactly what he says.

Q. What was your response to that phrase or that statement give me the confession and I'll sign it?

A. I was caught off guard really. I wasn't expecting him to say that in that manner, that fast. I told him that he hadn't give[n] me a confession yet. He abruptly spurts it out again and says, just give me the confession, I'll sign it.

I tried to get some details what, what he was talking about. Tell me what happened? And he says, I'm sorry. I can't. My life is over. I've ruined my life. Began to cry and told me that he wanted to terminate the interview.

According to Detective Gallagher, defendant did not provide any further details of that to which he wanted to confess and never signed any "confession."

II

At the conclusion of the three-day trial, the jury convicted defendant of the sexual assault charge but acquitted him on the endangering charge. A subsequent motion for a new trial or for judgment of acquittal was denied, and defendant was sentenced to a ten-year prison term with a five-year period of parole ineligibility, as well as community supervision for life.

Defendant appealed, arguing that:

I. THE IDENTIFICATION OF THE DEFENDANT WAS SUSPECT REQUIRING THE VACATION OF THE DEFENDANT'S CONVICTION AND THE AWARD OF A NEW TRIAL.

II. THE DEFENDANT WAS ENTITLED TO A HEARING PURSUANT TO [N.J.R.E. 104(c)] TO DETERMINE THE VOLUNTARINESS OF CERTAIN INCULPATORY STATEMENTS GIVEN TO THE POLICE BEFORE THE SAME WERE INTRODUCED AT TRIAL (Not Raised Below).

III. PRIOR TO TRIAL THE DEFENDANT WAS ENTITLED TO A HEARING PURSUANT TO [N.J.R.E. 803(a)(3)] (Not Raised Below).

IV. THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

In a pro se brief, defendant also argued that the verdict was against the weight of the evidence and that he was denied the effective assistance of counsel.

On October 9, 2001, by way of an unpublished opinion, we rejected defendant's arguments and, except for a minor amendment of the judgment not presently relevant, we affirmed. On February 11, 2002, the Supreme Court denied defendant's petition for certification. 171 N.J. 338 (2002).

On June 25, 2002, defendant filed a petition in the United States District Court for the District of New Jersey. That application was denied by way of an unpublished opinion. Aruanno v. Sherrer, No. 02-2446 (D.N.J. December 27, 2005). On May 12, 2008, the United States Court of Appeals affirmed. Aruanno v. Sherrer, 277 Fed. Appx. 155 (3d Cir. 2008).

On September 5, 2003, during the pendency of his federal habeas application, defendant filed a petition for post-conviction relief, arguing, among other things, that trial counsel was ineffective because he did not seek a Wade hearing regarding the identification made by G.B. at the showup, and did not seek a hearing, pursuant to State v. Michaels, 136 N.J. 299 (1994), concerning the suggestiveness of police questioning of G.B. The State argued that post-conviction relief was not available because these issues were urged on direct appeal and denied on their merits.

The judge, by way of a written decision, did not determine whether these issues were barred by our decision on the direct appeal, but instead, after denying the request for an evidentiary hearing, rejected the petition on its merits. Although the judge recognized that showups are "inherently suggestive," he viewed defendant's likelihood of success at a Wade hearing as "speculative." The judge also concluded that the argument based upon State v. Michaels was without merit because defendant had failed to provide anything more than "bald assertion[s] without substance." An order denying post-conviction relief was entered on May 3, 2007.

Defendant appealed that order, raising the following arguments for our consideration:

I. THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel's Failure to Request a Voir Dire of the Jury Following the Demonstration of Expressed Bias by a Juror Constituted Ineffectiveness of Counsel.

B. Trial Counsel's Failure to Request a Wade Hearing Constituted Ineffec-tiveness of Counsel.

C. Trial Counsel's Failure to Request a Hearing Regarding the Admissibility of the Video Tape Constituted Ineffec-tiveness of Counsel.

II. THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMON-STRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

III. THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF COUNSEL.

IV. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW).

We agree the judge should have conducted an evidentiary hearing regarding the Wade issue and remand for that purpose. And, because the Michaels argument has not been fully developed, we remand for further proceedings in that regard as well. We find insufficient merit in the balance of defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).

III

We initially consider the State's arguments that, in ruling on defendant's direct appeal, we disposed of defendant's Sixth Amendment claims. The State relies on Rule 3:22-5 in asserting that these arguments are procedurally barred. We reject this.

In disposing of defendant's direct appeal, we viewed defendant's Point I -- wherein defendant argued that the out-of-court identification was "suspect" -- as "essentially argu[ing] that the jury should not have believed [the victim's] identifications." State v. Aruanna, No. A-4188-98T4 (App. Div. October 9, 2001) (slip op. at 3). Although in dictum we indicated that an application to suppress the victim's out-of-court identification as unreliable would not have been successful, ibid., we concluded that defendant's ineffective-assistance-of-counsel claim was "better suited for post-conviction relief," id. at 2. Accordingly, we do not view defendant's Sixth Amendment arguments as having been previously adjudicated.

IV

Our holding on defendant's claim that he was deprived of the effective assistance of counsel because his trial counsel failed to seek a Wade hearing regarding the showup requires an examination into the principles that would have been applied at that unrequested Wade hearing.

A

The due process guarantees of our federal and state constitutions, at their very core, require a criminal justice system designed to generate reliable determinations. As a result, due process principles prohibit the use of identification evidence produced by events that are "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968), because, in the final analysis, a conviction that "rests on a mistaken identification" constitutes "a gross miscarriage of justice," Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199, 1204 (1967).

The "vagaries of eyewitness identification," as explained by Justice Brennan in his opinion for the Court in Wade, are "well-known," and "the annals of criminal law are rife with instances of mistaken identification." 388 U.S. at 228, 87 S. Ct. at 1933, 18 L. Ed. 2d at 1158. "A major factor" contributing to mistaken identification has been "the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification." Ibid.

Since eyewitness testimony plays an influential role in many criminal prosecutions, implicit in the applicable legal principles is a heightened concern about the reliability of such evidence. This deepening concern is warranted particularly because, as our Supreme Court has recognized, empirical studies now suggest that juries "tend to place great weight on eyewitness identifications, often ignoring other exculpatory evidence," State v. Cromedy, 158 N.J. 112, 120-21 (1999), and because the degree to which a witness expresses confidence in an identification also tends to be unduly valued by juries, State v. Henderson, 397 N.J. Super. 398, 415 (App. Div. 2008), remanded, __ N.J. __ (2009); see also Jessica Lee, No Exigency, No Consent: Protecting Innocent Suspects From the Consequences of Non-Exigent Show-Ups, 36 Colum. Hum. Rts. L. Rev. 755, 772-74 (2005). As summarized by our Supreme Court, "[e]yewitness identification can be the most powerful evidence presented at trial, but it can be the most dangerous too." State v. Delgado, 188 N.J. 48, 60 (2006). This understanding has caused the Court to conclude that misidentification is now "the single greatest cause of wrongful convictions in this country." Ibid. See also Timothy P. O'Toole & Giovanna Shay, Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 Val. U. L. Rev. 109 (2006); Samuel R. Gross et al., Exonerations in the United States 1 989 Through 2003, 95 J. Crim. L. & Criminology 523 (2005); Daniel S. Medwed, Anatomy of a Wrongful Conviction: Theoretical Implications and Practical Solutions, 51 Vill. L. Rev. 337 (2006); Ruth Yacona, Comment, Manson v. Brathwaite: The Supreme Court's Misunderstanding of Eyewitness Identification, 39 J. Marshall L. Rev. 539 (2006). As a result, "our courts are obligated to utilize great care in the application of the governing principles in order to prevent an accused from being convicted on the basis of unreliable eyewitness evidence." State v. Henderson, supra, 397 N.J. Super. at 416.

The showup has proven to be one of the most troubling types of identification techniques used by police. In a series of cases, starting with the 1967 decisions in United States v. Wade and Stovall v. Denno, the Supreme Court developed what is known as the "totality of the circumstances" test as the means for guarding against this potentially misleading type of evidence.

In Stovall v. Denno, supra, 388 U.S. at 295, 87 S. Ct. at 1969, 18 L. Ed. 2d at 1202, decided the same day as Wade, the Court considered the suggestiveness of a handcuffed defendant being brought to a hospital room to be viewed by a gravely-injured victim. The Court held that this process was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny the defendant due process of law, but was necessary because the only person who could exonerate the defendant was in the hospital, the hospital was not far from the jail, and no one knew how long the victim would live. Id. at 302, 87 S. Ct. at 1972, 18 L. Ed. 2d at 1206.

In 1972, the Court considered whether a showup different from that considered in Stovall v. Denno was unnecessarily suggestive and whether that fact alone warranted exclusion of identification evidence. In Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), a station house showup occurred seven months after the crime and was thus quite distinguishable from the exigent circumstances presented in Stovall, where the showup immediately followed the crime and the victim was gravely injured. The Court held that this lapse of time "would be a seriously negative factor in most cases," id. at 201, 93 S. Ct. at 383, 34 L. Ed. 2d at 412, but that the test remained "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive," id. at 199, 93 S. Ct. at 382, 34 L. Ed. 2d at 411.

And, in seeking to resolve the nagging uncertainty in the lower federal courts about the application of the "totality of the circumstances" test in the five-year interval since Neil v. Biggers, the Court emphasized in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), that "reliability is the linchpin." The Court held that the factors to be considered in ascertaining the reliability of an identification -- "the opportunity of the witness to view the criminal at the time of the crime, the witness' 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" -- had to be weighed against "the corrupting effect of the suggestive identification itself." Ibid. This remains the test required by the federal constitution.

In State v. Herrera, 187 N.J. 493, 499-500 (2006), our Supreme Court was asked to depart from the thirty-year old Manson rule and invited to hold that the state constitution imposed more stringent limits on the use of identification evidence derived from showups. The defendant in Herrera urged the Court to "confine the use of showups to circumstances where they are absolutely necessary and are conducted in a fair manner." Id. at 500. There, the victim was seated in his car waiting for traffic to pass when approached by a man on a bicycle who asked for money and then assaulted him. When the victim regained consciousness, his car was gone. The defendant was apprehended, and the police brought the victim to a hospital emergency room where the defendant was present; he entered the emergency room, looked around and identified the defendant, who was seated on a hospital bed six feet away. Id. at 497. The only other persons in the room were police officers and nurses. Ibid.

The defendant argued in Herrera that "the fallibility of eyewitness identifications cannot be ignored and that current studies of post-conviction DNA exonerations show that a large majority of those wrongful convictions involved eyewitness error." Id. at 499. In considering whether to adopt a standard that would bar the use of evidence of identifications resulting from showups, the Court recognized that other states have deviated from the Supreme Court's federal jurisprudence regarding showups. Id. at 500. The Court, however, observed that the defendant failed to present this "scientific evidence" until the matter was on appeal, id. at 499, and concluded that "[u]ntil . . . convinced that a different approach is required after a proper record has been made in the trial court," it would continue to adhere to the Manson approach, id. at 504. In State v. Comer, 194 N.J. 186, 200-02 (2008), the Court again found it inappropriate to revisit the application of the Manson test for purposes of determining whether an out-of-court identification procedure passed state constitutional muster when the issue was not raised until the filing of supplemental briefs in the Supreme Court. Two members of the Court again urged, as they had in Herrera, supra, 187 N.J. at 528 (Albin, J., dissenting), that the time had arrived to adopt a rule that precludes "highly suggestive identification procedures . . . except when necessary due to an exigency." 194 N.J. at 211 (Albin, J., concurring).

Most recently, as questions continued to mount regarding the viability of the Manson standard, the Court remanded a matter to the trial court for the development of such a record; the Court's February 26, 2009 order directed the trial court to "consider and decide whether the assumptions and other factors reflected in the two-part Manson/Madison test, as well as the five factors outlined in those cases to determine reliability, remain valid and appropriate in light of recent scientific and other evidence." State v. Henderson, supra, __ N.J. at ___.

B

Notwithstanding the growing potential for this State's adoption of a different approach in ascertaining reliability in light of the Court's February 26, 2009 order in Henderson, we remain bound to the Manson/Madison "totality-of-the-circumstances" test. This test requires that a court first "ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. In determining reliability, a court must consider

the opportunity of the witness to view the criminal at the time of the crime, the witness' 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. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

[Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.]

The existing record demonstrates that defendant could have persuasively attacked the out-of-court identification. A showup, of course, is inherently suggestive. See State v. Herrera, supra, 187 N.J. at 504 (holding that showups are "by definition . . . suggestive because the victim can only choose from one person, and, generally, that person is in police custody"). In addition, the child herself testified that, prior to the showup, she heard the discussion between Officers Nanos and McShaffry which revealed they "caught him -- they think they have him." This, too, would have a substantial impact upon the reliability of the out-of-court identification, see Foster v. California, 394 U.S. 440, 443, 89 S. Ct. 1127, 1129, 22 L. Ed. 2d 402, 407 (finding suggestive the repeated statements of the police to the witness that "[t]his is the man"); State v. Delgado, supra, 188 N.J. at 60 (holding that "the dialogue between a law enforcement officer and a witness may be critical to understanding the level of confidence or uncertainty expressed in the making of an identification and whether any suggestiveness, even unconsciously, seeped into the identification process"), as did the fact that defendant was in police custody, see State v. Herrera, supra, 187 N.J. at 504 (holding that showups are "by definition . . . suggestive because the victim can only choose from one person, and, generally, that person is in police custody").

All these circumstances may have been particularly influential on this young victim, who ultimately failed to make an in-court identification. And all these questions could have influenced the trial judge to suppress the out-of-court identification since even current standards require consideration of the "corrupting effect of the suggestive identification itself" on the reliability of the identification. Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. See State v. Henderson, supra, 397 N.J. Super. at 415.

V

Since defense counsel never requested a Wade hearing to test the sufficiency of the out-of-court identification, we must consider whether this omission deprived defendant of the effective assistance of counsel guaranteed by the federal and state constitutions.

When a defendant claims a deprivation of the effective assistance of counsel, courts generally apply the following test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).]

This same two-prong test is applied when considering whether an accused has been deprived of the state constitutional promise of the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 58 (1987).

A

In considering the first prong of the Strickland/Fritz test, we conclude that the record reveals substantial evidence of a deprivation of the effective assistance of counsel in this regard. Despite the inherent suggestiveness of the showup that occurred here, defense counsel simply failed to seek a Wade hearing and did not contest the admissibility of that out-of-court identification. This omission fell below "the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970). Just as one would expect a doctor, during a routine physical, to listen to the patient's heart with a stethoscope or take a reading of the patient's blood pressure, so too should the demands of our profession require that, in the circumstances presented here, an attorney seek the suppression of an identification that resulted from what is unquestionably an inherently suggestive showup.

The same day the Court decided Strickland it also decided United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L. Ed. 2d 657, 668 (1984), holding there is a presumption of unreliability in the results of a trial if counsel "fails to subject the prosecution's case to meaningful adversarial testing." In that circumstance, a defendant need make "[n]o specific showing of prejudice." Ibid. The language of Cronic strongly suggests that an attorney's failure to seek a Wade hearing when the police procedure was impermissibly suggestive is the type of attorney error that does not require proof of the second prong of the Strickland test.

Later decisions from lower courts in Cronic's wake, however, have adopted a rather limited view of what constitutes a per se deprivation. These courts have adopted an approach candidly described by one court in the following way: a "reluctan[ce] to extend a rule of per se prejudice in any new direction." Tippins v. Walker, 77 F.3d 682, 686 (2d Cir. 1996). In finding a new ground for application of Cronic -- when defense counsel is not even a member of the bar -- the Tippins court admittedly extended the per se rule "[w]ithout enthusiasm." Ibid.

Because there is no evidence that our Supreme Court would view Cronic more expansively than have the lower federal courts, see, e.g., State v. Allegro, 193 N.J. 352, 368-69 (2008); State v. Fisher, 156 N.J. 494, 500-01 (1998); State v. Savage, 120 N.J. 594, 616-17 (1990), we are bound to conclude that the second prong of the Strickland test must be considered here.

B

The second prong of the Strickland/Fritz test requires a showing by defendant of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The fact that the showup was impermissibly suggestive, which can hardly be disputed, would have left the trial judge with the opportunity to determine, by way of the Manson/Madison test, whether the procedure nevertheless resulted in a reliable identification. We cannot presume to know how the trial judge would have ruled on this question since no hearing was ever conducted.

But, Strickland/Fritz does not require a determination of whether the outcome would actually have been different but whether there was a reasonable probability that the outcome would have been different. Counsel's omission deprived defendant of the opportunity to obtain suppression of evidence relating to this inherently suggestive out-of-court identification. We conclude that the record establishes that defendant would have had a reasonable probability of success at the Wade hearing and that counsel's omission fell short of what the Sixth Amendment requires.

VI

Having concluded that trial counsel's failure to seek a Wade hearing deprived defendant of the effective assistance of counsel, we consider the future course of this case. In this regard, it is important to recognize that our conclusion that counsel's mistaken failure to seek a Wade hearing does not necessarily warrant a new trial. Indeed, to hold otherwise would require that we assume defendant would have succeeded at the Wade hearing in suppressing the out-of-court identification. We have held neither one thing nor the other; we have held only that there was a reasonable probability that the outcome would have been favorable had the hearing occurred.

To determine whether defendant is entitled to a new trial, the trial court should first ascertain whether, at the conclusion of a Wade hearing, the out-of-court identification would have been suppressed. See State v. Henderson, supra, 397 N.J. Super. at 417; State v. Johnson, 365 N.J. Super. 27, 37 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004). We recognize that a considerable amount of time has passed since the trial in this case and fading memories may present obstacles for the court's resolution of these questions. Notwithstanding the difficulties that may be encountered as the out-of-court identification is revisited, the inestimable constitutional guarantee of the effective assistance of counsel compels our holding. We have confidence that the trial judge can resolve the question posed by our remand in a principled fashion despite the difficulties presented by the passage of time.

Should the trial judge determine that the showup identification should have been suppressed, the trial judge should then determine how that identification may have tainted other identification evidence or whether any of the other identification evidence would have been admissible absent the evidence of the showup identification. Defendant's right to a new trial will turn on the judge's resolution of these issues.

VII

In asserting the overall suggestiveness of all the identifications made by G.B., defendant argues that trial counsel failed to seek a Michaels hearing, which would have explored the suggestiveness and reliability of the child's videotape statement that was played for the jury. Michaels outlines the factors to be considered in determining the admissibility of such a statement. 136 N.J. at 320-24.

The record on appeal does not provide us with sufficient information to determine whether defendant would have met the threshold requirement for a Michaels hearing or whether the failure to request the hearing constituted a deprivation of the effective assistance of counsel. Quite simply, we have not been provided with the videotaped examination of the child or even a transcript of the statements she made to the prosecutor's office. The trial transcript reveals only that during Investigator Kirkbride's testimony, the prosecutor requested and, without objection, was permitted to play the child's videotaped statement:

Q. And does the videotape accurately represent your interview with [G.B.]?

A. Yes, it does.

[THE PROSECUTOR]: Judge, at this time, I'd like to move the videotape into evidence and play it for the jury.

[DEFENSE COUNSEL]: No objection.

THE COURT: You may.

(Videotape played.)

Nothing in the trial transcript or the record on appeal reveals what is contained in the videotape. The record only reveals that the videotape was played for the jury.

Without knowing what the child was asked or what and how she responded, we cannot gauge the sufficiency of defendant's argument that his trial counsel should have requested a Michaels hearing. Because we are remanding for further proceedings regarding trial counsel's failure to request a Wade hearing, we will also require that the judge permit further development of the Michaels issue and, if necessary, conduct all appropriate additional proceedings thereby warranted.

Reversed and remanded for additional proceedings in conformity with this opinion. We do not retain jurisdiction.

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

According to Officer Steven McShaffry, who was the first officer to respond to G.B.'s home, he received a call regarding this incident at 5:39 p.m.

Officer McShaffry testified he is five-foot, ten-inches tall.

Officer Nanos also obtained a description from G.B. He testified that G.B. described the suspect as a white male who, according to the child, was "slightly taller" than Officer Nanos, who testified he is about five-foot, eight-inches tall. Officer Nanos also testified that G.B. told him the man "had a dark jacket on" with a zipper that "was all the way up." Officer Nanos recalled that G.B. said the zipper "was all the way up because I inquired if she could see what color shirt he had on and she said, she couldn't see it because the jacket was all the way up." He "believe[d] [G.B.] said he had dark hair."

Detective Gallagher testified that on December 10, 1996 defendant's hair was at "ear level" and that at the time of trial "his hair [was] extremely short . . . almost to the bald fashion." A photograph taken of defendant on December 10, 1996, which G.B. identified at trial as depicting the man who accosted her, was shown to the jury.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The Court cited People v. Adams, 423 N.E.2d 379, 382 (N.Y. 1981), Commonwealth v. Johnson, 650 N.E.2d 1257, 1261 (Mass. 1995), and State v. Dubose, 699 N.W.2d 582, 597 (Wis. 2005), as examples of state court decisions that have departed from Manson in considering the admissibility of showup evidence based upon their state constitutions. In State v. Ramirez, 817 P.2d 774 (Utah 1991), the court adopted different reliability factors in construing its state constitution in this setting. Utah's approach has been followed by one other state. State v. Hunt, 69 P.3d 571 (Kan. 2003).

We recognize that courts should not second-guess the tactical decisions of counsel. See Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694 (holding that judicial scrutiny of counsel's performance "must be highly deferential" and must avoid viewing the performance under the "distorting effects of hindsight"); see also State v. Norman, 151 N.J. 5, 37 (1997). The record, however, neither reveals nor suggests a sound tactical reason for counsel's failure to seek a Wade hearing; nor can we imagine a sound tactical reason for failing to seek such a hearing in any case. Of course, it could be argued that an attorney may not wish to give a critical witness an opportunity to experience cross-examination before testifying in front of the jury. But that rationale would, at best, suggest only a possibly sound tactic for not cross-examining the witness at the Wade hearing; it is not arguable that that would be a sound tactical reason for not seeking a Wade hearing. Even if defense counsel felt that the Wade application would likely prove unsuccessful, there remained an advantage in seeking the hearing if for no other reason than to observe the witness's testimony in advance of trial -- in other words, preview for the defense the witness's direct examination.

(continued)

(continued)

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A-5509-06T4

RECORD IMPOUNDED

April 21, 2009