STATE OF NEW JERSEY v. RICKY LEE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5134-03T45134-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICKY LEE,

Defendant-Appellant.

__________________________________________________________

 

Submitted November 1, 2005 - Decided

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 95-09-0945-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (J. Stewart Borrow, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Petitioner Ricky Lee appeals from the denial of his petition for post conviction relief in a matter that arose out of a traffic stop on Route 80 in the West Paterson area in the early morning hours of May 22, 1995. We affirm the denial.

In 1997, petitioner, Ricky Lee, was charged with the following offenses: third degree possession of a controlled dangerous substance (cocaine), contrary to N.J.S.A. 2C:35-10a(1) (count one); first degree possession of a controlled dangerous substance (cocaine) with intent to distribute, in violation of N.J.S.A. 2C:35-5b(1) (count two); fourth degree possession of a controlled dangerous substance (marijuana) of more than fifty grams, contrary to N.J.S.A. 2C:35-10a(3) (count three); and third degree possession of a controlled dangerous substance (marijuana) with intent to distribute, in violation of N.J.S.A. 2C:35-5b(11) (count four). Following a trial, the jury found defendant guilty of all charges.

On count two, petitioner was sentenced to a term of fifty years imprisonment with parole ineligibility for sixteen years, eight months. On count four, he was sentenced to a term of five years imprisonment with two years parole ineligibility, to be served concurrently with the sentence on count two. Count one was merged into count two and count three was merged into count four.

On direct appeal, this court issued an unpublished opinion under Docket No. A-3389-97T4 (App. Div. November 4, 1999), affirming both the conviction and sentence. On March 22, 2000, the New Jersey Supreme Court denied defendant's petition for certification. State v. Lee, 163 N.J. 396 (2000).

In this appeal from the trial court's denial of post conviction relief (PCR), defendant makes the following arguments in furtherance of his contention that he was denied effective assistance of trial counsel:

A. COUNSEL'S FAILURE TO REQUEST A CROSS-RACIAL IDENTIFICATION JURY CHARGE CONSTITUTED THE INEFFECTIVE ASSISTANCE OF COUNSEL.

B. COUNSEL'S FAILURE TO OBJECT TO ADMISSION OF IRRELEVANT TESTIMONY PERTAINING TO WHO ACCOMPANIED MS. HARROD WHEN SHE PURCHASED HER MOTOR VEHICLE CONSTITUTED THE INEFFECTIVE ASSISTANCE OF COUNSEL.

We find those arguments are without merit.

In the early morning hours of May 22, 1995, a silver pickup truck occupied by a driver and a passenger, later determined to be defendant's brother, Calvin Lee, was traveling at a very slow rate of speed in the far left lane of Route 80 in the West Paterson area, a four lane highway. The vehicle occasionally would drift out of the lane and then dart back. Two New Jersey State Troopers stopped the vehicle. The occupants were unable or refused to produce credentials for themselves or the vehicle. Eventually, both occupants fled, escaping into nearby woods. A search of the abandoned vehicle disclosed substantial quantities of cocaine and marijuana.

Calvin Lee was found and arrested that same day, however, defendant was not arrested until July 1995 when one of the troopers identified him from a photo lineup as the driver of the vehicle.

The investigation of the incident revealed that the truck was registered to Diana Harrod, defendant's aunt. It was purchased at Wasson Brothers Auto Sales in Lycoming County. The sales person recalled that Harrod bought the truck, but the funds used for the purchase were provided by an African-American male accompanying her. The unidentified male paid $4,859, in cash. On direct examination at trial, Harrod denied that Ricky Lee was the person who accompanied her to the car dealership. She insisted she was accompanied by her fiancé. On cross-examination, the State confronted her with a police report to refresh her recollection that she had told the police on May 22, 1995 that Ricky Lee had accompanied her. Harrod again denied that and reaffirmed her testimony that it was her fiancé.

At the close of trial, the judge gave an identification charge to the jury. He did not give a cross-racial identification charge. No such charge was requested. The charge given by the court included the following:

The defendant Ricky Lee, as part of his general denial of guilt, contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person [who] committed the alleged offense.

Where the identity of the person who committed the crime is an issue, the burden of proving the identity is upon the State. The State must prove beyond a reasonable doubt that this defendant is the person who committed the crime. The defendant has, neither the burden, nor the duty to show that the crime, if committed, was committed by someone else or to prove the identity of that other person.

You must determine, therefore, not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that this defendant is the person who committed it.

In order to meet its burden with respect to the identification of the culprit, the State has presented the testimony of the witness Trooper Steven Parisi. You will recall that this witness identified the defendant in court as the person who committed the offense. According to the witness, his identification of the defendant in court is based upon the observations and perceptions which he made of the defendant on the scene at the time the offense was being committed.

It is your function as jurors to determine what weight, if any, to give to this testimony. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offense charged. In going about your task, you should consider the testimony of the witness in light of the customary criteria concerning credibility as I explained them to you earlier.

It is particularly appropriate that you consider the capacity or the ability of the witness to make observations or perceptions, as you gauge it to be, and that you consider the opportunity which the witness had at the time and under all of the attendant circumstances for seeing that which he says he saw or that which he says he perceived with regard to his identification of the person who committed the alleged offense . . . . Unless the in-court identification results from the observations or perceptions of the defendant by the witness during the commission of the time, rather than being the product of an impression gained at an out-of-court identification procedure, it should be afforded no weight. Thus, the ultimate issue of the trustworthiness of an in-court identification is for you to decide.

If, after a consideration of all the evidence, you have a reasonable doubt as to the identity of the defendant as the person present at the time and place of the crime, you must acquit him; if, however, after a consideration of all the evidence you are convinced beyond a reasonable doubt of the defendant's presence at the scene, you will then consider whether the State has proved each and every element of the offense charged beyond a reasonable doubt.

The defendant Ricky Lee, as part of his denial of guilt, contends that he was not present at the time and place that the crime was alleged to have been committed, but was somewhere else; and, therefore, could not possibly have committed or participated in the crime.

Where the presence of the defendant at the scene of the crime is essential to show its commission by him, the burden of proving that presence beyond a reasonable doubt is upon the State. The defendant has, neither the burden, nor the duty to show that he was elsewhere at the time, so that he could not have committed the offense. You must determine, therefore, whether the State has proved each and every essential element of the offense charged, including that of the defendant's presence at the scene of the crime and his participation in it.

If, after a consideration of all of the evidence, including the evidence of the defendant's whereabouts at the time of the offense, you have a reasonable doubt as to the presence of the defendant at the time and place of the crime or as to whether he committed or participated in it, you must acquit the defendant; if, however, after considering all of the evidence, you are convinced beyond a reasonable doubt of the defendant's presence at the scene of the crime and have concluded that the State has proved each and every element of the offense charged in the indictment beyond a reasonable doubt, you must return a verdict of guilty.

The jury returned a verdict finding defendant Ricky Lee guilty on all charges.

In order to show ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and the deficient performance prejudiced the defense. State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, 446 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). "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." Ibid. "[T]he essence of effective representation is not objectively competent attorney performance, but instead 'the fundamental fairness of the proceeding whose result is being challenged.'" Fritz, supra, 105 N.J. at 58. We must be extremely deferential to counsel's performance and observe "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

"The benchmark for judging ineffectiveness must be whether counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result." Ibid. (quoting Strickland, supra, 446 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93). In other words, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Applying these standards, we reject defendant's claim of ineffective assistance of counsel.

Not until almost two years after defendant's trial in 1999, did our Supreme Court mandate that a trial judge give a cross- racial identification charge in certain cases. State v. Cromedy, 158 N.J. 112 (1999). In Cromedy, the Court held that a cross-racial jury charge must be given in cases where the "identification is a critical issue in the case, and an eyewitness' cross-racial identification is not corroborated by other evidence giving it independent reliability." Id. at 132. Thus, the racial character of the eyewitness identification is a factor that the jury can use in determining the reliability of the identification.

As pointed out in Cromedy, the majority of jurisdictions in the United States had already rejected the use of a cross-racial instruction. Id. at 131. Therefore, defense counsel cannot fairly be described as unprofessional for failing to anticipate that decision or for failing to request more than the standard identification charge to the jury. Defense counsel understandably followed the law that was in existence at the time.

Considering the entire trial proceedings, we conclude the proceedings were fair. Defense counsel challenged the reliability of the identification, albeit not on racial grounds. Defense counsel emphasized through cross-examination and in his summation that the State's case on identification was weak and not reliable. He pointed out that the witness had misidentified the driver as someone other than defendant at a preliminary hearing. Thus, counsel was able to argue to the jury that the trooper's identification of him was incorrect and not credible. The adversarial process was sufficiently engaged to promote fundamental fairness, and defense counsel's performance was not below the level of competence reasonably to be expected.

Defendant contends that Cromedy should be retroactively applied to his case. In determining whether retroactivity should be applied, a three-pronged analysis is utilized. State v. Purnell, 161 N.J. 44, 54 (1999) (citing State v. Knight, supra, 145 N.J. at 252-58). The factors to be considered are (1) the purpose to be served by the new rule; (2) the degree of reliance by those who administered it; and (3) the impact of retroactive application on the administration of justice. State v. Afanador, 151 N.J. 41, 57 (1997); State v. Knight, 145 N.J. 233, 249 (1996). A new rule of law for retroactivity purposes is one where the court's decision is a "sudden and generally unanticipated repudiation of a long-standing practice." Purnell, supra, 161 N.J. at 53 (citing State v. Afanador, 151 N.J. 41, 58 (1997) (quoting State v. Cupe, 289 N.J. Super. 1, 12, (App. Div. 1996)). "That is, there must be some 'appreciable past from which the [new] rule departs.'" Ibid. Cromedy clearly announced a new rule.

The court must first determine the purpose of the new rule that would be advanced through retroactive application. Purnell, supra, 161 N.J. at 54. As recognized in Cromedy, "the purpose of a cross-racial instruction is to alert the jury through a cautionary instruction that it should pay close attention to a possible influence of race." Id. at 133. New rules put in place to "'overcome an aspect of a criminal trial that substantially impairs its truth-finding function' and which [raise] 'serious questions about the accuracy of guilty verdicts in past trials,'" are usually applied retroactively in full. Ibid. (quoting State v. Burstein, 85 N.J. 394, 406-07 (1981). If the new rule "is designed to enhance the reliability of the factfinding process but the old rule did not 'substantially' impair the accuracy of that process," the rule will not be applied retroactively. Purnell, supra, 161 N.J. at 54 (quoting Burstein, supra, 85 N.J. at 408; Knight, supra, 145 N.J. at 258). In determining whether an old rule "substantially impairs" the truth-finding process, a court considers: "(1) the likelihood of untrustworthy evidence being admitted under the old rule; and (2) whether the defendant had alternate ways of contesting the integrity of the evidence being introduced against him." Purnell, supra, 161 N.J. at 54 n.1 (quoting Burstein, supra, 85 N.J. at 408). The charge, quoted at length above, informed the jury that it was the State's burden to prove the identity of the person who committed the crime and that defendant was specifically challenging the reliability of the State's witness. It was obvious that the accused and the witness were not of the same race and it is conceded the potential for mistake on that ground was not brought to the attention of the jury. We do not find that undermined the adversarial process.

The second prong is "the degree of reliance placed on the old rule by those who administered it." Ibid. (quoting Knight, supra, 145 N.J. at 251). The court must assess whether the old rule was administered in "good faith reliance [on] 'then-prevailing constitutional norms.'" Ibid. (citing State v. Howery, 80 N.J. 563, 570, cert. denied, 444 U.S 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979) (internal citations omitted). We have no doubt about the good faith reliance of all participants on the standard jury instruction on identification, which is still applied unless a cross-racial charge is requested or deemed by the court to be appropriate.

The third prong requires the court to "assess the impact that retroactive application of the new rule of law would have on the administration of justice." Id. at 56 (citing Knight, supra, 145 N.J. at 252). One of the factors a court should look to in making this evaluation is "the number of cases that would require dismissal or retrial in the event of retroactive application." Ibid. Retroactivity should not be administered if a large number of convictions would be overturned. Ibid. A reviewing court should refrain from overwhelming the trial courts with retrials and should acknowledge the difficulty of re-litigating cases that have occurred a long time ago. Ibid.

Six years ago, the Cromedy decision broke with the past by providing a new option with which to instruct juries regarding cross-racial identifications. Prior to that, most other jurisdictions had declined to require the use of a cross-racial identification charge. The parties have offered no estimate of the number of pre-Cromedy cases that may have involved cross-racial identification, but it can be assumed that number is considerable. The impact could be devastating to the administration of justice if every case containing a cross-racial identification had to be reviewed to determine the existence and reliability of any corroborative evidence.

We are satisfied that Cromedy should not be applied retroactively to this case.

The courts and the litigants had believed that the old jury charge was all that was necessary to provide a fair and just trial. The jury was alerted to defendant's contention that the trooper's identification of him was not reliable, though not necessarily due to any claimed racial insensitivity or unfamiliarity. The absence of fingerprints or any evidence to corroborate the trooper's identification was brought to the jury's attention. Defendant was found guilty in a trial that took place almost two years before the Cromedy standard was announced. Absent a showing that is more dramatic and more suggestive of bias than is shown in this case, we do not perceive any justification for applying Cromedy.

We also reject defendant's argument that testimony regarding his aunt's purchase of the truck and defense counsel's failure to object to evidence concerning that purchase, based on relevance grounds or its substantial prejudice, deprived defendant of the effective assistance of counsel. N.J.R.E. 401 states that "Relevant Evidence means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." "In determining relevance, the inquiry should focus upon whether the proffer 'renders the desired inference more probable than it would be without the evidence.'" State v. Davis, 96 N.J. 611, 619 (1984) (quoting State v. Deatore, 70 N.J. 100, 116 (1976)). Relevance is subject to N.J.R.E. 403 which provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."

The evidence concerning the purchase of the truck was relevant. The truck was purchased eleven days prior to the May 22 incident. Testimony that defendant accompanied Harrod and provided the funds for the purchase, tended to show that he was either the constructive owner of the truck or at least would have had access to it. Harrod refuted such evidence, testifying on behalf of the defense that it was her fiancé who was with her at the time of the purchase. On cross-examination, she again denied that it was defendant. This implies that defense counsel made a strategic decision to rely on Harrod's testimony and her denial. Such a decision was rational and certainly not below the standard expected of a reasonably competent attorney.

Moreover, had defendant objected to the truck purchase evidence, the objection would have been properly overruled. The prejudice of such evidence did not substantially outweigh the probative value. The thrust of the evidence was that defendant either provided the money to make the purchase or at least could have access to the truck if he desired. The fact that Harrod's companion gave her cash instead of a check for the purchase was tangential. Here, the facts, however found by the jury, could not have clouded the jury's judgment to such an extent that it is likely to have rendered a guilty verdict when it would not have otherwise done so.

 
Affirmed.

The current Model Jury Charge suggests that in appropriate cases the jurors may be told they may consider the fact that an identifying witness is not of the same race as the perpetrator and/or defendant and whether that fact might have had an impact on the accuracy of the witness' original perception, and/or the accuracy of the subsequent identification. They may be instructed that they should consider that in ordinary human experience, people may have greater difficulty in accurately identifying members of a different race.

(continued)

(continued)

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A-5134-03T4

November 21, 2005