STATE OF NEW JERSEY v. VAUGHN TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VAUGHN TAYLOR,

Defendant-Appellant,

_______________________________________________

October 21, 2013

Submitted July 16, 2013 Decided

Before Judges Ostrer and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-1451.

Joseph E. Krakora, Public Defender, attorney for appellant (Celeste Dudley-Smith, Designated Counsel, on the brief).

GraceH. Park,Acting UnionCounty Prosecutor,attorney forrespondent (EstrellaLopez, SpecialDeputy Attorney/ActingAssistant Prosecutor,of counsel and on the brief).

PER CURIAM

Defendant appeals from the April 19, 2011 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. After reviewing defendant's arguments in light of the record and applicable law, we affirm.

We discern the following facts from the record. On August 25, 2004, a man described as an African-American with a shaved head or short hair, wearing dark clothing, exited a dark green Lexus, approached a woman from behind, hit her over the head with a tire iron, stole her purse, and returned to the vehicle. Shortly thereafter, a police officer attempted to stop a Lexus that matched the description of a recently-stolen car. The car sped away. A chase ensued, which ended in the Lexus crashing into a residence. The police apprehended defendant, who was a passenger in the car.

The police brought two witnesses to the robbery to the crash scene. They both identified defendant as the assailant of the robbery that occurred about two hours earlier. They also later identified photos of defendant and the stolen Lexus at police headquarters a few hours after their initial identification of defendant.

On December 9, 2004, a Union County Grand Jury returned an indictment, charging defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five); and third-degree alteration of a motor vehicle identification number, N.J.S.A. 2C:17-6(b) (count six).1

On June 15, 2005, a jury found defendant guilty of counts one through three and found defendant guilty of the lesser included charge of fourth-degree unlawful taking, N.J.S.A. 2C:20-10, on count five. The trial judge, after merging counts two and three with count one, sentenced defendant on count one as a persistent offender to twenty-three years with an eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge gave defendant a one-year concurrent sentence on count five.2

Defendant appealed his convictions and asserted the following:

POINT I: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 
A. Trial Counsel's Failure to Request a Wade[3] Hearing Constituted Ineffectiveness of Counsel.
 
B. Trial Counsel's Failure to Clarify the Nature and Chronology of the Identification Procedures Confused the Jury and Rendered Trial Counsel's Strategy Impotent.
 

POINT II: THE TRIAL JUDGE ERRED IN SENTENCING DEFENDANT BY CITING AGGRAVATING FACTORS NOT PRESCRIBED BY THE SENTENCING GUIDELINES AND BY CITING AGGRAVATING FACTORS THAT WERE NOT BASED UPON COMPETENT CREDIBLE EVIDENCE.

Defendant also submitted a pro se supplemental brief whereby he argued:

POINT ONE: THE ONE-PERSON SHOW-UP OF DEFENDANT WAS IMPERMISSIBLY SUGGESTIVE AND RESULTED IN A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION, AND AS SUCH, THE PRE-TRIAL AND IN COURT IDENTIFICATION OF DEFENDANT BY SAWICKIANDCAIVANOSHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
 
POINT TWO: TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO PARTICIPATE IN AN ADEQUATE JURY CHARGE MAINLY TO MOLD THE IDENTIFICATION CHARGE TO INCLUDE AN ADEQUATE INSTRUCTION ON CROSS RACIAL IDENTIFICATION AND TO RELATE THE CHARGE TO THE FACTS OF THE CASE DEPRIVED THE JURY OF ADEQUATE GUIDANCE FOR ITS DELIBERATIONS VIOLATING DEFENDANT TAYLOR'S RIGHT TO DUE PROCESS UNDER THE STATE AND FEDERAL CONSTITUTION.

We affirmed defendant's conviction and sentence on July 28, 2008. State v. Taylor, No. A-2960-06 (App. Div. July 28, 2008). In our opinion, we found that the record was insufficient to address defendant's ineffective assistance of counsel claim and noted that "defendant may make the appropriate application for post-conviction relief." Id.(slip op. at 6-7). Our Supreme Court denied defendant's petition for certification. State v. Taylor, 201 N.J.155 (2010).

On May 20, 2010, defendant filed a pro see PCR petition asserting the following:

POINT I: THE IDENTIFICATION PROCEDURES USED BY THE POLICE WERE IMPERMISSIBLY SUGGESTIVE LEADING TO A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION AND DEFENSE COUNSEL'S FAILURE TO REQUEST A WADEHEARING, AND TO TAKE OTHER NECESSARY ACTIONS, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II: TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE PROSECUTOR'S INTRODUCTION OF AN ALLEGED TIRE IRON THAT WAS USED IN THE CRIME (A TIRE IRON)[.] THE TIRE IRON WAS USED AS DEMONSTRATIVE EVIDENCE, TRIAL COUNSEL DID NOT HAVE A 104 HEARING UNDER THE RULES OF EVIDENCE TO ALLOW SUCH EVIDENCE IN AND THE EVIDENCE WAS HIGHLY PREJUDICIAL WITH NO PROBATIVE VALUE AT ALL TO PETITIONER'S TRIAL. THE VICTIM WAS ALLEGDLY BASHED IN THE HEAD WITH A TIRE IRON BUT THERE [WERE] NO INJURIES TO VICTIM FROM THIS ACTION OR INJURY[.] THE PROSECUTOR'S WAVING TIRE IRON IN FRONT OF JURY WAS PREJUDICIAL[.] TRIAL COUNSEL SHOULD [HAVE] OBJECTED AND MOVED FOR A 104 HEARING UNDER THE RULES OF EVIDENCE FOR DEMONSTRATIVE EVIDENCE.

Thereafter, counsel filed a brief alleging the following:

POINT I: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

POINT II: PETITIONER HAS ESTABLISHED A PRIMA FACIE CASE SUFFICIENT TO REQUIRE THE ORDERING OF AN EVIDENTIARY HEARING.

POINT III: PETITIONER'S CLAIMS ARE NOT BARRED PROCEDURALLY FROM BEING RAISED IN THIS PETITION FOR POST CONVICTION RELIEF.

POINT IV: DEFENDANT INCORPORATES BY REFERENCE THE ARGUMENTS CONTAINED IN HIS INITIAL VERIFIED PETITION AND IN ANY PRO SE SUPPLEMENTAL BRIEF.

At the PCR hearing, defendant argued that he had established a prima facie case of ineffective assistance of counsel based on trial counsel's failure to request a Wadehearing. Defendant pointed out that the two witnesses identified defendant via a show-up, when defendant was already in custody. Then, contrary to mandated identification procedures, the police showed them just one picture at the station, instead of an array. Defendant contended that these procedures were clearly impermissively suggestive and warranted a Wadehearing.

The State argued that defendant failed to show a deficiency in his counsel's representation because there was no basis for the judge to hold a Wadehearing. The State maintained that neither the identifications at the crash site nor the single-photo identifications were impermissibly suggestive procedures. Rather, any suggestiveness went to the weight the jury might give to the identification. Additionally, the State contended, both witnesses gave accurate physical descriptions of the defendant prior to their crash-site identifications.

The PCR judge found that trial counsel's failure to request a Wadehearing was not "outside the range of professionally competent assistance." The judge stated that defendant failed to show any likelihood of success at the hearing based on the opportunity each witness had to view defendant and the consistency of the witnesses' descriptions and identifications throughout the investigation. The judge denied defendant's PCR without an evidentiary hearing. This appeal followed.

On appeal, defendant raises the following contentions for our consideration:

POINT I: DEFENDANT HAS ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL REQUIRING AN EVIDENTIARY HEARING.

A. THE SHOWUP IDENTIFICATION WAS IMPERMISSIBLY SUGGESTIVE.

B. IT IS INHERENTLY SUGGESTIVE FOR THE DEFENDANT TO BE IN CUSTODY DURING A SHOWUP IDENTIFICATION.

C. THE STATEMENT BY THE POLICE TO THE WITNESS RENDERED THE IDENTIFICATION IMPERMISSIBLY SUGGESTIVE.

D. THE WITNESSES' IDENTIFICATIONS OF THE DEFENDANT WERE UNRELAIBLE UNDER THE TOTALITY OF THE CIRCUMSTANCES.

E. THE PHOTO IDENTIFICATION PROCEDURE WAS CONDUCTED IMPROPERLY.

We review a 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). When the court does not hold an evidentiary hearing, we "may exercise de novo review over the factual inferences" the judge has drawn from the documentary record. Id. at 421.

Defendant contends that his attorney's failure to request a Wade hearing constituted ineffective assistance of counsel. We disagree.

To prove ineffective assistance of counsel, a defendant must demonstrate both that his counsel's performance was deficient and that counsel's error so prejudiced defendant that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 690-92, 104 S. Ct. 2052, 2066-67, 80 L. Ed. 2d 674, 695-96 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). However, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

A person is generally entitled to an evidentiary hearing only if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits[.]" State v. Marshall, 148 N.J. 89, 158 (citing State v. Preciose, 129 N.J. 451, 463 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Moreover, "[i]t 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).

A pretrial identification is admissible at trial unless it is the product of suggestive procedures creating a "'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988)4 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). To obtain a Wade hearing to contest an out-of-court identification, the defendant must make a threshold showing of "impermissive suggestiveness." State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004).

Even if the identification was impermissively suggestive, it may be admitted into evidence if it was nevertheless reliable. See State v. Herrera, 187 N.J. 493, 503-04 (2006) ("The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification."). "The essential question is whether there was sufficient reliability in the identification[] to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification." State v. Adams, 194 N.J. 186, 204 (2008).

We recognize that one-on-one show-up identifications at or near the crime scene are "inherently suggestive" since "the victim can only choose from one person, and, generally, that person is in police custody." Herrera, supra, 187 N.J. at 504. Moreover, identifications made at a crime scene or soon thereafter "'are likely to be accurate, taking place . . . before memory has faded'" and "'[t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent.'" Ibid. (quoting State v. Wilkerson, 60 N.J. 452, 461 (1972)). Additionally, single-photo identification procedures are likely to be suggestive and possibly result in misidentification, but generally, such a defect goes to weight, not substance. Mason v. Brathwaite, 432 U.S. 98, 117, 97 S. Ct. 2243, 2254, 53 L. Ed. 2d 140, 155 (1976).

The pertinent inquiry here must be "whether the impermissively suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. In determining the reliability of identifications, we consider certain factors, including "'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [the witness'] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Adams, supra, 194 N.J. at 204 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).

Application of those factors to a totality of the circumstances here points to two reliable identifications. One witness, Marion Sawicki, was about twelve feet from the assailant when she witnessed the assault. She testified that she watched the assailant the entire time, had gotten a good look at his face immediately following the assault, and felt that she would never forget his face. When she identified the defendant at the show-up, she testified that she was ninety-nine percent positive he was the assailant. At trial, she explained that at the crash scene the police did not say defendant was the assailant but merely brought out defendant and asked if she could identify him.

The other witness, Christopher Caivano, who attempted to apprehend the assailant, came within three to four feet of him. Caivano stated that he had gotten a good look at the assailant and he identified the weapon used to be a tire iron. When brought to the crash scene, Caivano recognized the defendant "immediately" as the assailant in the earlier attack.

Further, prior to the show-up, both witnesses provided consistent and accurate descriptions of the assailant and the vehicle. The crash site identification took place within two to three hours of the initial crime and the subsequent photo identification merely confirmed the original identifications.

Consequently, we are satisfied that the identifications were reliable despite the suggestiveness of the procedure used. Adams, supra, 194 N.J. at 204. Counsel's failure to request a Wade hearing was not deficient because even with a hearing the identifications would not have been deemed inadmissible. Trial counsel's strategic decision not to pursue such a hearing demands our deference. State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002).

As counsel's failure to request a Wade hearing did not constitute deficient performance, we find this claim to be without merit. See State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div. 2008) ("[A]s there is no basis for reversing the conviction on the grounds asserted, there is no basis for finding that defendant was denied the effective assistance of counsel.").

We have considered defendant's remaining arguments and find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We conclude from our examination of the record that the PCR judge correctly applied the controlling legal principles.

Affirmed.

1 Defendant was not charged in count four, which only applied to the driver of the crashed Lexus.

2 On the same day, defendant was sentenced on two other indictments, which are not a subject of this appeal.

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

4 Our Supreme Court revised the rules governing out-of-court identification procedures in State v. Henderson, 208 N.J. 208, 288 (2011). However, those provisions do not apply here because defendant was tried before Henderson and the decision is not retroactive. Id. at 302.