STATE OF NEW JERSEY v. MICHAEL DERRY

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL DERRY,

Defendant-Appellant.

______________________________________________

January 7, 2014

 

Submitted October 1, 2013 Decided

 

Before Judges Sabatino and Hayden.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-07-1275.

 

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

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Defendant Michael Derry appeals from the April 18, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

We discern the following facts from the record. On May 11, 2003, Ruben Marrero visited his girlfriend, who was having a small gathering. When Marrero knocked on her door, defendant answered. Marrero did not know defendant by name, but recognized him from seeing him approximately fifteen to twenty times "around the city." At the gathering, Marrero spoke with Ivan Hall, an old friend. Marrero also recognized Kamal Sears from school, and knew that defendant was related to Sears.

As Marrero left the party, Hall and defendant approached and asked for a ride. Marrero agreed and both men got into the back seat of Marrero's car.

When Marrero stopped at a red light at the first intersection, an unknown man jumped into the front passenger seat and threatened Marrero with a gun. Marrero struggled with the man and gained possession of the gun. Defendant and Hall yelled at the man for losing possession of the weapon, and both began beating Marrero in an attempt to obtain the gun.

During the skirmish, defendant reached his arms around Marrero's neck, choking him, and Marrero let go of the gun. Taking money and jewelry from Marrero, defendant and the unknown man exited the automobile. After Marrero yelled at Hall about setting him up, the gun went off, shooting Marrero in the back and causing permanent paralysis from the waist down.

During the ensuing investigation, the police showed Marrero four photographic arrays while he was in the hospital. The investigating officer was in the room for the arrays, but the arrays were actually administered by a second officer not involved in the investigation. Marrero did not identify anyone in the first or last arrays. In the second array, Marrero identified defendant, and in the third, he identified Sears.

On July 15, 2003, an Atlantic County grand jury indicted defendant on ten counts including second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count four); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count six); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); fourth-degree possession of a controlled-dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count nine); and second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7 (count ten). Count nine was dismissed prior to trial.

Before the trial, defendant moved for a Wade1 hearing, which the trial judge denied. He found that the police's procedures were not impermissibly suggestive, and there was no substantial likelihood of misidentification. After a trial on counts one through eight, the jury found defendant guilty on all counts. Immediately thereafter, the jury found defendant guilty of count ten as well. Subsequently, the trial judge sentenced defendant on August 30, 2007, to an aggregate term of thirty-six years, with twenty-seven years of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and an additional five-year parole disqualifier.

Defendant appealed. We affirmed defendant's convictions and sentence, but remanded for a hearing on defendant's claim that a juror was sleeping during the trial and to amend the judgment of conviction with the appropriate mergers. State v. Derry, No. A-2229-07 (App. Div. Sept. 3, 2009) (slip op. at 5). The Supreme Court granted certification as to four issues. State v. Derry, 201 N.J. 155 (2010). On March 2, 2010, the Court granted the State's motion for a limited remand.

The trial judge held remand hearings and concluded that the juror in question had not been sleeping. The Supreme Court subsequently dismissed defendant's certification as having been improvidently granted. State v. Derry, 204 N.J. 33 (2010).

Defendant filed a timely pro se PCR petition on August 4, 2011, arguing the following:

POINT I: PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT OF THE UNITES STATES CONSTITUTION TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO COUNSEL'S FAILURE TO CONDUCT ANY PRE TRIAL INVESTIGATION, SUBPOENA WITNESSES IN HIS DEFENSE AND FOR INFORMING PETITIONER AND HIS ONLY WITNESS THAT HE WOULD IMPEACH WITNESSES CREDIBILITY IF HE TESTIFIED IN PETITIONER'S FAVOR.

 

POINT II: PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT OF THE UNITED STATES CONSTITUTION TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO COUNSEL'S FAILURE TO RAISE ON DIRECT APPEAL THE TRIAL COURT'S ABUSE OF DISCRETION FOR ALLOWING OTHER CRIMES EVIDENCE AND THE COURT'S ABUSE OF DISCRETION FOR ALLOWING A PREJUDICIAL AND SUGGESTIVE OUT OF COURT IDENTIFICATION THAT WAS CONDUCTED BY THE INVESTIGATING POLICE DEPARTMENT.

 

POINT III: PETITIONER WAS DENIED HIS FIFTH AMENDMENT AND FOURTEENTH AMENDMENT SECTION ONE OF THE UNITED STATES CONSTITUTION [RIGHTS] TO DUE PROCESS OF LAW DUE TO THE TRIAL COURT'S FAILURE TO CONDUCT A SCHEDULED PROBABLE CAUSE HEARING.

 

POINT IV: PETITIONER'S SENTENCE IS EXCESSIVE; THUS IT IS IN VIOLATION OF THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION PROHIBITING CRUEL AND UNUSUAL PUNISHMENT.

 

Defendant also submitted a pro se memorandum of arguments that detailed the following additional PCR issues:

POINT I: CUMULATIVE ERROR IGNORED BY TRIAL AND APPELLATE COUNSEL.

A. Prejudicial Comments Made by the Prosecutor.

1. Impassioning the Jury.

 

2. Bolstering the Credibility of a State Witness.

 

3. Improper References to Defendant Being Up to No Good.

 

4. Prejudice from Prosecutor Creating Racial Tension.

 

5. Other-Crimes and Other-Bad-Acts Prejudice.

a. 404(b) Prejudice.

6. Inappropriate Comments About Defense Counsel and Defendant.

B. Ineffective Cross-Examination.

 

C. Objections and Rulings in Front of Jury Impacted Defense.

 

D. References to Warrants.

 

E. Prejudicial Instruction on Circumstantial Evidence.

Defendant's counsel filed a supplemental brief on March 17, 2012, arguing the following:

POINT I: INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT II: PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO THE FAILURE OF COUNSEL TO APPEAL THE DENIAL OF A WADE HEARING.

 

POINT III: PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO THE FAILURE OF APPELLATE COUNSEL TO SEEK A NEW SENTENCING HEARING WHEN THE COURT DENIED THE TRIAL COUNSEL'S REQUEST TO WITHDRAW AS COUNSEL.

 

POINT IV: PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF REMAND COUNSEL DUE TO THE FAILURE OF COUNSEL TO CALL THE ASSISTANT PROSECUTOR AS A WITNESS AT THE HEARING.

 

POINT V: PRO-SE FILINGS AND ADDITIONAL ARGUMENTS.

 

A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL KAMAL SEARS TO TESTIFY.

 

POINT VI: PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE CUMULATIVE ERRORS OF COUNSEL.

 

POINT VII: PETITIONER'S JAIL CREDITS SHOULD BE RECALCULATED.

 

Defendant's PCR counsel specifically incorporated defendant's pro se PCR petition and his memorandum of arguments.

Judge Kyran Connor,2 after hearing arguments on April 18, 2012, denied defendant's petition. Judge Connor noted that the identification evidence was "extremely strong," citing our unreported decision on defendant's direct appeal. Derry, supra, No. A-2229-07 (slip op. at 13). In evaluating the denial of the Wade hearing, Judge Connor noted that the identification procedures were reliable, particularly emphasizing that Marrero was familiar with defendant. The judge determined that appellate counsel's decision not to raise the denial of the Wade hearing did not reflect deficient legal representation, but rather a competent professional judgment "as to what were the important, the meritorious issues."

In addition, Judge Connor discussed at length the other arguments raised by defendant, both in his pro se papers and his counsel's submissions. He found that defendant made bare unsupported allegations of counsel's deficiencies, and provided no certifications or evidence about the missing witnesses' testimony, what any investigation would have uncovered, or how new testimony or evidence would have changed the outcome of the trial. The judge concluded that defendant "present[ed] a conglomeration of bald assertions along with some mischaracterizations of fact and he roll[ed] them up into a larger ball that also include[d] a number of issues which [were] already . . . conclusively resolved by the Appellate Division."

Defendant filed a pro se motion for reconsideration on April 20, 2012. Defendant alleged that he had not received his PCR attorney's brief or the State's responding documents and was not prepared for oral argument. Defendant further stated that his PCR counsel failed to raise additional issues defendant presented to him. Defendant also contended that his attorney had failed to hire an investigator to explore the issues defendant had raised.

Judge Connor denied defendant's motion for reconsideration on May 7, 2012. After considering defendant's arguments, the judge determined that he did not err in denying defendant's PCR petition and did not overlook any controlling law. This appeal followed.

Defendant raises the following on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HE DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM APPELLATE COUNSEL AS A RESULT OF APPELLATE COUNSEL'S FAILURE TO RAISE AS AN ISSUE THE TRIAL COURT'S RULING DENYING TRIAL COUNSEL'S REQUEST FOR A WADE HEARING.

 

After the State filed its responsive brief regarding this appeal, defendant filed a pro se supplemental brief alleging the following:

POINT I: DEFENDANT WAS SUBJECTED TO THE CONSTRUCTIVE DENIAL OF PCR COUNSEL WHICH DEPRIVED HIM OF THE SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND PREVENTED A FAIR PRESENTATION OF VIABLE CONSTITUTIONAL CLAIMS THEREFORE THE ORDER DENYING THE PCR SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW PCR HEARING ON THOSE CLAIMS.

 

We begin with a review of the applicable legal principles that guide our analysis. 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). This standard applies equally to claims of ineffective assistance of appellate counsel. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987). More than "bald assertions" that counsel was ineffective are required for relief to be granted. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Porter, ___ N.J. ___, ___ (2013).

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).

Having considered defendant's arguments in light of the record and the applicable legal principles, we find them to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in Judge Connor's opinion of April 18, 2012. We add only the following brief discussion.

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)3 (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." State v. Herrera, 187 N.J. 493, 503-04 (2006). "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).

"The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Herrera, supra, 187 N.J. at 504. 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 v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).

Here, defendant fails to make the required preliminary showing of impermissive suggestiveness warranting a Wade hearing. See Ruffin, supra, 371 N.J. Super. at 391. The record reveals that Marrero was shown four photo arrays by an officer not involved in the investigation. No evidence was presented that Marrero was in any way influenced by police in his selection of defendant as his assailant. Indeed, in two of the arrays Marrero was shown, he failed to select any suspects, which demonstrates a lack of suggestiveness in the administration of the photo arrays. Additionally, when the suspect is known to the witness, strict adherence to identification procedures is less significant. See Wade, supra, 388 U.S. at 241 n.33, 87 S. Ct. at 1940 n.33, 18 L. Ed. 2d at 1165 n.33.

Moreover, even if the procedures were in some way defective, it is clear that the identification would be nonetheless reliable. Marrero's opportunity to view defendant at the time of the crime was substantial because Marrero knew defendant by face, knew he was related to Sears, saw him at the party that night, and agreed to give him a ride. Additionally, Marrero's description of defendant was accurate with the exception of eye color.

Hence, appellate counsel's failure to raise the issue of the trial court's denial of a Wade hearing was not deficient because the identification of defendant would not have been deemed inadmissible. "The 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. 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."), certif. denied, 197 N.J. 477 (2009).
Defendant argues in his pro se supplemental appellate brief that his PCR counsel was ineffective for not sufficiently consulting with him and not adequately raising all the issues that defendant wished to have raised. In particular, defendant claims that PCR counsel ignored his request to raise trial counsel's failure to call Sears as a witness, to seek to enter Sears' statement into evidence, or to raise a third party guilt defense implicating Sears.

Contrary to defendant's contention, the record reflects that PCR counsel raised the issue of trial counsel's failure to call Sears as a witness in his brief and that the judge specifically addressed this issue at the PCR hearing. The judge rejected defendant's argument since defendant had not demonstrated that Sears was available as a witness, or provided a statement from Sears. Moreover, defendant did not supply any certifications in his motion for reconsideration, or as part of this appeal, demonstrating that counsel's failure to pursue these three trial strategies related to Sears was deficient or led to an unjust result. See Cummings, supra, 321 N.J. Super. at 170.

Similarly, we also reject defendant's claim that his PCR counsel was deficient for not raising trial counsel's failure to request a "detailed and focused cross-racial identification instruction," citing State v. Cromedy, 158 N.J. 112, 132-33 (1999). The record reflects that the trial judge gave the jury a detailed instruction about cross-racial identification and his counsel did not object to the charge. Defendant has not explained what additional details and focus he contends were necessary to ensure a fair trial. Defendant has not demonstrated that his trial counsel's failure to request an undefined and vague additional cross-racial identification charge was "clearly capable of producing an unjust result." R. 2:10-2.

Thus, defendant has merely made "bald assertions" that trial counsel was deficient, which is not sufficient to demonstrate ineffective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170. Accordingly, we also find that defendant has not demonstrated that PCR counsel's performance was deficient for not articulating ineffective assistance of counsel claims that do not meet the Strickland standard. In addition, defendant has failed to present any evidence that PCR counsel's failure to raise these claims that entirely lack merit had any effect on the PCR result.

Affirmed.

 

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

2 Judge Connor did not preside at defendant's trial.

3 The 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.