STATE OF NEW JERSEY v. DOMINICK COLEMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOMINICK COLEMAN, a/k/a KARIM

JOHNSON, DUPREE KEMP,

Defendant-Appellant.

_______________________________

November 28, 2016

Submitted November 7, 2016 Decided

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 13-04-0210.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).

Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (Lauren Martinez, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief).

PER CURIAM

Tried before a jury on a four-count indictment, defendant Dominick Coleman was convicted of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); third-degree eluding, N.J.S.A. 2C:29-2(b) (count two); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count three); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4) (count four). The trial judge sentenced defendant to ten years in prison on count one, with a three-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6; a concurrent five-year term on count two; a concurrent eighteen-month term on count three; and a concurrent five-year term on count four. The judge also imposed appropriate fines and penalties.

On appeal, defendant has raised the following contentions

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT "SHOW-UP" IDENTIFICATION OF DEFENDANT WITHOUT FIRST DETERMINING THE RELIABILITY OF THAT IDENTIFICATION. (NOT RAISED BELOW).

POINT II

THE FAILURE OF POLICE TO RECORD THE DETAILS OF THE SHOW-UP IDENTIFICATION WAS A VIOLATION OF OUR SUPREME COURT'S REQUIREMENT, ANNOUNCED IN STATE V. DELGADO, THAT THE DETAILS OF AN IDENTIFICATION PROCEDURE BE RECORDED AND PRESERVED. THIS VIOLATION RENDERS THE OUT-OF-COURT IDENTIFICATION OF DEFENDANT PER SE INADMISSIBLE REQUIRING A NEW TRIAL. (NOT RAISED BELOW).

POINT III

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO CONDUCT A WADE MOTION PRIOR TO TRIAL. (NOT RAISED BELOW).

After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

We derive the following facts from the record. On March 25, 2013, at approximately 1:00 a.m., Officer Frank Waller was on patrol in Bound Brook. The officer observed a car in front of him make a left turn without signaling. Officer Waller followed the car and then activated his emergency lights to effectuate a motor vehicle stop. Instead of stopping, however, the driver accelerated "rapidly" down "a dead-end road," where the car struck a metal barrier and stopped.

Officer Waller testified the driver got out of the car and ran away. As he did so, the driver looked back at Officer Waller, who got "a good look" at the driver's face because the patrol car's lights were focused on the suspect. The officer stated the driver was wearing a dark jacket, a white shirt, blue jeans, and sneakers "with a bright yellow trim and reflection." Officer Waller explained that his patrol car was equipped with an "MDVR" recording system that was activated when he turned on his emergency lights, and a video was made of the driver as he looked at the officer. The State presented the video to the jury, together with two photographs of the driver taken from the recording.

Officer Waller radioed for backup and reported that the driver had run away. Officer Waller also gave the dispatch operator a description of the driver. The officer then went to the car, looked through the window, and "observed a handgun on the driver's side seat." The officer secured the weapon, which he found was loaded with a magazine, and waited for back-up to arrive.

Sergeant Vito Bet came to the scene with other officers. Sergeant Bet "ran the plates" of the car in order to identify its owner. The officers identified the owner, who lived nearby, and she promptly came to the scene. The owner told the officers that her boyfriend, who she stated was named Karim Johnson, "was driving her vehicle and was supposed to come home." Sergeant Bet asked the owner if he could go to her home to see if the boyfriend was there. The owner agreed.

Sergeant Bet and another officer went to the owner's home. Officer Waller remained with the car. At the owner's home, Sergeant Bet found defendant on a bed in the bedroom with a blanket pulled over him. The officers placed defendant in handcuffs and read him his Miranda1 rights.

Sergeant Bet then contacted Officer Waller, who came to the home and identified defendant as the man who had eluded him before crashing the car into the barrier and running away. Defendant initially told the officers his name was Karim Johnson, but they were able to determine his true identity through an examination of Division of Motor Vehicles records. The police seized defendant's clothing, including his jacket, shirt, pants, and distinctive sneakers and presented them to the jury at trial.

Defendant did not testify or call any other witnesses at trial.

II.

In Points I and III of his brief, defendant asserts the trial judge erred in failing to order a Wade2 hearing on his own motion, and that his trial counsel was ineffective for failing to request such a hearing because defendant's show-up identification was impermissibly suggestive and irreparably tainted its reliability. We disagree.

Because defendant did not bring those issues to the attention of the trial court, we review them under a plain error standard. R. 2:10-2. When we review an issue for plain error, we will not reverse a conviction unless the error was "clearly capable of producing an unjust result[.]" Ibid. The error must have been "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. McGuire, 419 N.J. Super. 88, 106-07 (App. Div.) (quoting State v. Taffaro, 195 N.J. 442, 454 (2008)), certif. denied, 208 N.J. 335 (2011). Here, the record discloses no error, let alone plain error.

A Wade hearing is conducted for the purpose of determining whether an out-of-court identification was made in unduly suggestive circumstances and, if so, whether or not any ensuing in-court identification procedure would be fatally tainted thereby. State v. Henderson, 208 N.J. 208, 238 (2011). Contrary to defendant's contention in Point I, however, a Wade hearing is only required if there is a proffer of some evidence of impermissible suggestiveness. Henderson, supra, 208 N.J. 288-89, 292. Thus, "there is no automatic entitlement to an evidentiary hearing on an out-of-court identification." State v. Ruffin, 371 N.J. Super. 391 (App. Div. 2004). As defendant concedes, he did not request a Wade hearing and, therefore, he never established that the identification procedure in this case was impermissibly suggestive.

Moreover, trial judges generally will not initiate a hearing on their own motion without a challenge to the proposed evidence by a party, at they recognize, as do we, that in many instances such challenges are deferred for tactical or strategic reasons. Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 104(a) (2017) (stating that "[a] trial court is not obligated to conduct a N.J.R.E. 104(a) hearing on its own motion if there is no challenge by any of the parties to the proffered evidence") (citing State v. Harvey, 151 N.J. 195 (1997)). Therefore, we reject defendant's contention that the trial judge was required to conduct a sua sponte Wade hearing.

Turning to the contentions raised by defendant in Point III, we also conclude that defendant's trial counsel was not ineffective because she did not request a Wade hearing or file a motion to suppress Officer Waller's identification of defendant. We generally decline to consider claims of ineffective assistance of counsel on direct appeal because they often involve matters for which there is not a complete record. State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.), certif. denied, 197 N.J. 258 (2008) (citing State v. Preciose, 129 N.J. 451, 460 (1992)). Had defendant's trial attorney filed such a motion, however, we presume the evidence adduced at the motion hearing would have mirrored that presented at trial. Under those circumstances, we will proceed to consider defendant's claim of ineffective assistance of trial counsel.

We apply the well-settled two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (stating that a defendant must establish (1) his or her counsel's performance was deficient and he or she made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he or she was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

A defendant is obliged to establish the right to relief by a preponderance of the credible evidence. Preciose, supra, 129 N.J. at 459 (1992). The court must consider the defendant's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Where, as here, a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It 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). For example, where a defendant complains his or her counsel should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his [or her] Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998).

Thus, we must determine whether a motion to suppress Officer Waller's identification would have been successful under the circumstances presented in this case. In Henderson, the Supreme Court considered a wide array of scientific evidence collected and evaluated by a Special Master regarding eyewitness identifications, and concluded that while there is a "troubling lack of reliability" in such evidence, a court may admit it after considering a set of factors. Henderson, supra, 208 N.J. at 217-18. The Court divided the factors into "system variables[,]" which are within the State's control, and "estimator variables[,]" which are not. Id. at 248-72.

System variables concern the manner in which the police conduct an identification procedure and include considerations such as the type of procedure used, what pre-identification instructions were given to a witness, and whether suggestive feedback was given to a witness post-identification. Id. at 248-61. Estimator variables are factors related to the criminal incident, the witness, or the perpetrator. Id. at 261. They include stress; weapon focus; duration of the witness' observation of the perpetrator; distance and lighting; the witness' characteristics that could impact an identification's accuracy; the perpetrator's appearance, including whether a mask or disguise was employed; racial bias; and the speed of an identification. Id. at 261-272.

As previously noted, to obtain a pretrial hearing on the admissibility of eyewitness identification evidence under Henderson, "a defendant has the initial burden of showing some evidence of suggestiveness" in the identification proceeding "that could lead to a mistaken identification." Id. at 288. That evidence must generally be tied to a system, rather than an estimator, variable. Id. at 288-89.

If a hearing is granted, "the State must then offer proof to show that the proffered eyewitness identification is reliable[,]" accounting for both types of variables. Id. at 289. In this second analytical step, the State has the burden of producing evidence consistent with N.J.R.E. 101(b)(2). State v. Henderson, 433 N.J. Super. 94, 107 (App. Div. 2013), certif. denied, 217 N.J. 590 (2014). If the State submits "evidence on the issue that is germane to the inquiry with sufficient clarity so that the [defendant] has a full and fair opportunity to respond[,]" the burden shifts back to the defendant to show "a very substantial likelihood of irreparable misidentification." Ibid. (quoting Henderson, supra, 208 N.J. at 289).

"[I]f after weighing the evidence presented a court finds from the totality of the circumstances that [the] defendant has" carried his or her burden, the eyewitness identification evidence should be suppressed. Henderson, supra, 208 N.J. at 289. If that burden is not met, however, the evidence should be admitted, and "the court should provide appropriate, tailored jury instructions" explaining how the evidence is to be considered. Ibid.

Applying these principles, we conclude defense counsel was not ineffective by failing to file a motion to suppress Officer Waller's identification of defendant because we are unconvinced the motion would have been successful. Assuming for the sake of argument that the show-up in this case was, as most are, suggestive, see State v. Herrera, 187 N.J. 493, 504 (2006), it is clear that Officer Waller's identification was nevertheless reliable. The officer was able to see defendant's face clearly because the lights on the patrol car were focused on him. Defendant also turned around and faced the officer before fleeing the scene. The officer was not under any significant stress at the time he observed defendant, who was not approaching him or brandishing a weapon. Officer Waller described defendant's distinctive clothing, which matched the clothing defendant was found with when the police arrived at car owner's home. Officer Waller also identified defendant at the home less than an hour after the incident. See Henderson, supra, 208 N.J. at 259 (stating that if a show-up is conducted within two hours of the witnessed event, there is less risk of misidentification because the witness' memory is less likely to have faded).

Based on the totality of these circumstances, we conclude that if defense counsel had filed a motion to suppress Officer Waller's identification, it would not have been successful. Accordingly, defense counsel was not ineffective due to her failure to file such a motion. O'Neal, supra, 190 N.J. at 619.3 We therefore reject defendant's contentions under Point III.

Finally, in Point II, defendant argues for the first time on appeal that the police failed to comply "with the condition to the admissibility of out-of-court identifications, that the police record, to the extent feasible, the dialogue between witnesses and police during an identification procedure." State v. Delgado, 188 N.J. 48, 51 (2006). Although under the plain error rule we will consider allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result, see Rule 2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971), we generally decline to consider issues that were not presented at trial. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). As the Supreme Court has cogently explained

Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves. Although "[o]ur rules do not perpetuate mere ritual[,]" we have insisted that in opposing the admission of evidence, a litigant "must make known his position to the end that the trial court may consciously rule upon it." State v. Abbott, 36 N.J. 63, 76 (1961). This is so because "[t]he important fact is that the trial court was alerted to the basic problem[.]" Id. at 68. In short, the points of divergence developed in the proceedings before a trial court define the metes and bounds of appellate review.

[State v. Robinson, 200 N.J. 1, 19 (2009).]

As noted, defendant's present contention that the State failed to produce a written or electronic record of the identification procedure was not raised before the trial court. Therefore, we need not review it under the circumstances of this case.

The application of the Robinson rule is particularly apt in the present case. Defendant baldly asserts that "[t]he trial record discloses that a written record of the show-up procedure, detailing the dialogue between Officer Waller and other officers, was never made." However, defendant has not provided us with copies of the materials he received during the pre-trial discovery period, including the written police reports, which the State asserts in its brief included a "detailed summary" of Officer Waller's identification of defendant.

Moreover, defendant had the opportunity, during the pre-trial hearing on his motion to suppress the handgun and the other seized items as evidence,4 to question both Officer Waller and Sergeant Bet about the details of the identification process. We therefore conclude that defendant has not shown that the admission of Officer Waller's out-of-court identification was erroneous under Delgado, let alone an error "clearly capable of producing an unjust result[.]" R. 2:10-2.

Affirmed.

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

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

3 We need not reach the second prong of Strickland and the State's argument that Officer Waller's identification was unlikely to cause defendant any actual prejudice because the jury could have readily made its own comparison of defendant's appearance with the person shown on the video.

4 Following the hearing, the trial court denied defendant's motion to suppress.