STATE OF NEW JERSEY v. QUENTIN WRIGHT

NOT FOR PUBLICATION WITHOUT THE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.

QUENTIN WRIGHT,

Defendant-Appellant.

_______________________________________________

December 10, 2014

Submitted November 12, 2014 Decided

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-02-0457.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Quentin Wright was convicted of second-degree conspiracy to commit robbery while armed, N.J.S.A. 2C:5-2 and 2C:15-1. The jury acquitted him of all other charges. On appeal, we affirmed defendant's conviction and the sentence imposed. State v. Wright, No. A-5880-07 (App. Div. Sept. 23, 2009). The Supreme Court denied defendant's petition for certification. 201 N.J. 153 (2010).

Defendant filed a pro se petition for post-conviction relief (PCR), and counsel was appointed to represent him. Oral argument on the petition was terse, but we are able to discern from the thorough written opinion of the PCR judge, who was also the trial judge, that defendant asserted various grounds for relief based upon trial counsel's allegedly ineffective assistance. One such claim rested upon trial counsel's failure to move to suppress out-of-court identifications made by two victims of the robbery.

The evidence at trial revealed that three individuals were robbed at gunpoint on a street in Atlantic City. Wright, supra, No. A-5880-07 (slip op. at 2). Police were called and the victims indicated their assailants had fled in a black SUV. Ibid. Within minutes, defendant and three others were apprehended in an SUV; a handgun and items taken from the victims during the robbery were found in the vehicle. Ibid. Two co-defendants, juveniles at the time of the robbery and ten years younger than defendant, testified that defendant forced them to commit the robbery and held a gun on the victims during the events. Id. (slip op. at 3).

The two female victims identified defendant at trial, and described how he had "inappropriately" touched one of them by "rub[ing]" up against her during the robbery.1 Both also identified defendant during an out-of-court identification procedure conducted at police headquarters. Atlantic City Detective Stacy Cocozza testified that each of the four suspects was brought into an interview room equipped with one-way glass. The victims were taken into a separate room and viewed each suspect. Both female victims identified defendant.

Defendant testified in his own behalf. Ibid. He claimed that the two testifying co-defendants committed the robbery without his knowledge or participation, and he became aware of the crime only after those two ran from the scene back to the car and threw certain objects into the back of the SUV. Id. (slip op. at 3-4).

In considering defendant's claim that trial counsel was ineffective in failing to move to suppress the out-of-court identifications, the judge concluded the out-of-court procedure was not "impermissibly suggestive," and "even if [it] was . . . , the identification [was] otherwise reliable because all of the reliability factors . . . have been satisfied." Addressing the other claims made by defendant and appointed PCR counsel, the judge concluded defendant failed to establish a prima facie case for relief. This appeal followed.

Defendant raises a single point for our consideration

POINT ONE

TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A WADE2 HEARING BECAUSE THE IDENTIFICATION PROCEDURE IN THIS CASE WAS IMPERMISSIBLY SUGGESTIVE AND RESULTED IN A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.

We have considered this argument in light of the record and applicable legal standards. We affirm.

We set some well-known guideposts for our review. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "In determining whether defense counsel's presentation was deficient, [j]udicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-319 (2005) (quoting State v. Norman, 151 N.J. 5, 37 (1997)) (internal quotation marks omitted).

Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 677, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. Thus, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990); see also State v. Echols, 199 N.J. 344, 361 (2009) (rejecting ineffective assistance claim, noting "there being no reversible error in the prosecutor's comments, the failure of trial counsel to object . . . could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different").

Defendant's trial occurred before the Court's decision in State v. Henderson, 208 N.J. 208, 220 (2011), which applies "purely prospectively." At the time of trial, the standards for assessing the admissibility of out-of-court identification testimony involving a "showup" were well-known and involved a two-step analysis. State v. Herrera, 187 N.J. 493, 504 (2006).

The first step is a determination whether the showup was "impermissibly suggestive." Ibid. The Court recognized that "one-on-one showups are inherently suggestive . . . because the victim can only choose from one person, and, generally that person is in police custody." Ibid. "[H]owever, . . . standing alone a showup is not so impermissibly suggestive to warrant proceeding to the second step." Ibid. But, "only a little more is required in a showup to tip the scale toward impermissibly suggestive." Ibid.

In this case, defendant argues the procedure was impermissibly suggestive because a police officer was in the room with him while the victims made their identifications. We fail to see how this makes the procedure any more suggestive that most showups, since many times they take place on the street while the alleged perpetrator is in custody with police officers standing nearby. Defendant also argues the procedure used here was impermissibly suggestive because it did not comply with Attorney General Guidelines that clearly favor a "live line-up." Office of the Att'y Gen., N.J. Dep't of Law and Pub. Safety, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (2001). We acknowledge that the Guidelines apply to live line-ups and do not address how to, or even whether, a showup should be conducted in a police station.

Assuming arguendo that the identification procedure used here was impermissibly suggestive, we "must then decide 'whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Romero, 191 N.J. 59, 76 (2007)). "'Reliability is the linchpin in determining the admissibility of identification testimony.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). Reliability is assessed by considering the following

[T]he 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.

[Herrera, supra, 187 N.J. at 503 (alteration in original) (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).]

The PCR judge considered each of these factors and concluded that even if the procedure used in this case was impermissibly suggestive, the identifications were reliable. We agree with his assessment.

Both victims had ample opportunity to view defendant during the robbery, since they were taken from the front of the store to behind the building, where defendant and his accomplices removed jewelry, some clothing and personal effects. It is true that both victims testified that their assailants wore bandanas, but we do not view that as outweighing the ample opportunity the victims had to view defendant's general appearance over a longer period of time than a street robbery might otherwise occupy. Moreover, the victims' description that the robbers wore bandanas was corroborated by the fact that those items were found in the SUV, along with the proceeds of the robbery. See, e.g., State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.) (noting that corroboration of vehicle's description by motel surveillance camera demonstrated reliability of victim's identification of defendant at a show up), certif. denied, 178 N.J. 250 (2003).

Both victims paid careful attention during the robbery, as evidenced by their recall of defendant's demeaning language, and the fact that defendant, who they described as older than the others, rubbed against one of the victims in a sexual manner. While the record does not set forth the precise descriptions provided to police, there was testimony that police were advised that several African-American males had committed the robbery and fled the scene in a black SUV.

On the record before us, there appears to be a high level of certainty to both victims' out-of-court identification, and the PCR judge so found. Lastly, the time between the actual robbery and the in-station identifications was relatively short.

In short, we are firmly convinced that testimony regarding the victims' out-of-court identification of defendant would have been admitted even if trial counsel had requested a Wade hearing, because under the totality of the circumstances, those identifications were reliable. Therefore, counsel's failure to request such a hearing does not present a prima facie case of ineffective assistance of counsel. Echols, supra, 199 N.J. at 361; Worlock, supra, 117 N.J. at 625.

Affirmed.

1 The third male victim did not testify at trial.

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