STATE OF NEW JERSEY VS. KHALIF PADEN (11-02-0279, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4049-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v
KHALIF PADEN, a/k/a
PADEN RAFEI,
Defendant-Appellant.
__________________________
Submitted September 16, 2019 – Decided March 26, 2020
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 11-02-0279.
Joseph Krakora, Public Defender, attorney for
appellant (Andrew P. Slowinski, Designated Counsel,
on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Barbara A.
Rosenkrans, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Khalif Paden appeals from an order denying his post-
conviction relief (PCR) petition without an evidentiary hearing. Defendant
challenges his convictions, which we affirmed on direct appeal, State v. Paden,
No. A-4278-13 (App. Div. Apr. 14, 2016), on seven charges including first-
degree carjacking and second-degree robbery. We find no merit to his claim the
PCR court erred by denying his petition, and we affirm.
I.
Defendant was charged in an indictment with second-degree conspiracy
to commit carjacking and robbery, N.J.S.A. 2C:5-2, 2C:15-2, 2C:15-1 (count
one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); first-degree
robbery, N.J.S.A. 2C:15-1 (count three); third-degree aggravated assault with a
deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four); second-degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b) (count five); second-degree
possession of a handgun with the purpose to use it unlawfully against another,
N.J.S.A. 2C:39-4(a) (count six); third-degree receiving stolen property, N.J.S.A.
2C:20-7 (count seven); fourth-degree credit card theft, N.J.S.A. 2C:21-6(c)(1)
(count eight); and third-degree hindering prosecution, N.J.S.A. 2C:29-3(b)(4)
(count nine).
A-4049-17T2
2
In our decision on defendant's direct appeal, we provided a complete and
detailed summary of the facts established by the evidence at trial. See Paden,
slip. op. at 2-6. Therefore, it is necessary only to briefly recount the pertinent
facts here.
On October 17, 2010, Sawadogo Boukary was robbed at gunpoint by four
men. During the robbery, Boukary saw the face of only one of the assailants;
the man holding the gun. The next day, four men entered a gas station
convenience store to buy cigarettes. The cashier, Roukiatou Ba, was familiar
with Boukary and knew he had been robbed the previous night. When one of
the men attempted to pay with Boukary's bank card, she refused to accept it.
The men left the gas station, but Ba followed them outside and alerted a
nearby police officer, Officer Jose A. Dannoys, Jr., that a man attempted to use
a bank card that did not belong to him. Dannoys saw four men walking away
from the gas station, called for back-up, and followed the four men in his patrol
car. While following the men, Officer Dannoys saw defendant toss something
as he passed a local firehouse. When back-up officers arrived, Officer Dannoys
detained the four men, including defendant. Afterwards, a firefighter sitting in
front of the firehouse picked up the item defendant had discarded and gave it to
Officer Dannoys, who determined it was Boukary's bank card.
A-4049-17T2
3
Defendant was arrested, and the officers took the four men back to the gas
station. Defendant was in one patrol car, while the other men were in a second
patrol car. The officers asked Ba to exit the convenience store and identify
which man attempted to use the card. Ba refused to go outside, but she looked
through the window and identified defendant as the person who attempted to use
Boukary's card.
The following day, Boukary went to the police station with his cousin,
Ouedroago Issa. Boukary spoke French and needed Issa to translate English to
French for him. Boukary and Issa met with Detective Tyrone Crawley to review
a photo array. Crawley did not have any prior involvement with the
investigation and did not know any details about the incident, the invest igation,
or the suspects. With Issa serving as a translator, Crawley read Boukary detailed
instructions about the photo array procedure from a form, which Boukary
signed.
Crawley separately showed Boukary six photos, numbered one through
six. When he saw photo number four, Boukary said "that's it, that's it," but
Crawley also showed him the remaining two photos. Following his review of
all the photos, Boukary again stated photo number four was "the person" whose
face he saw during the robbery. Photo number four depicted defendant.
A-4049-17T2
4
In a voluntary statement given to police on that same day, Boukary
described his assailant as "black and short." At trial, Boukary elaborated that
his assailant was wearing "a t-shirt with a kind of hat," and that both articles of
clothing were black.
The jury convicted defendant of second-degree conspiracy to commit
carjacking and robbery; first-degree carjacking; second-degree robbery as a
lesser-included offense of the first-degree robbery charged in the indictment;
third-degree aggravated assault with a deadly weapon; third-degree receiving
stolen property; fourth-degree credit card theft; and third-degree hindering
prosecution. The court imposed an aggregate twenty-three-year sentence
subject to the requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2,
consecutive to sentences imposed on charges in two other indictments.
On defendant's direct appeal, he argued in part that his trial counsel was
ineffective by failing to request a Wade1 hearing to determine the admissibility
of Boukary's and Ba's out-of-court identifications. See Paden, slip op. at 7-8.
We noted the admissibility of the out-of-court identifications was "governed by
the standards established by the United States Supreme Court in Manson v.
Brathwaite, 432 U.S. 98 (1977), as adopted by our Supreme Court in State v.
1
United States v. Wade, 388 U.S. 218 (1967).
A-4049-17T2
5
Madison, 109 N.J. 223 (1988)," Paden, slip op. at 11; generally explained the
standards, id. at 11-13; and found uncertainty as to whether the trial record alone
"permit[ted] a dispositive resolution of defendant's ineffective assistance of
counsel claim," id. at 13. We "conclude[d] that defendant's ineffective
assistance of counsel claim is best left for a post-conviction relief petition." Id.
at 14.
Defendant filed a timely pro se PCR petition, reprising his claim that his
trial counsel was ineffective by failing to request a Wade hearing on Boukary's
and Ba's out-of-court identifications, and by failing to file motions to suppress
the out-of-court identifications. The petition, as supplemented by defendant's
assigned PCR counsel, also alleged defendant's trial counsel was ineffective by
"hardly ever" meeting with defendant outside the courthouse, and by failing to:
provide defendant with full discovery; sufficiently cross-examine Boukary to
establish defendant did not commit a carjacking; and clearly explain
inconsistencies in Boukary's testimony to the jury. PCR counsel further asserted
trial counsel was ineffective by failing to challenge the admissibility of the out -
of-court identifications based on the police officers' alleged failure to document
the identifications as required under State v. Delgado, 188 N.J. 48 (2006).
A-4049-17T2
6
The PCR court heard argument on the petition, rendered an opinion from
the bench denying PCR without an evidentiary hearing, and supplemented its
decision with a detailed, written twenty-two-page opinion. The court provided
the standard for analyzing a claim of ineffective assistance of counsel
established in Strickland v. Washington, 466 U.S. 668 (1984), as adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), and explained the merits
of any putative motion for a Wade hearing or to suppress the out-of-court
identifications must be analyzed under the standard adopted in Manson and
Madison.
The court analyzed the separate evidence related to Boukary's and Ba's
out-of-court identifications and determined defendant failed to demonstrate he
would have been entitled to either a Wade hearing or suppression of the
identifications under the Madison and Manson standard. Thus, the court found
defendant failed to establish a prima facie ineffective assistance of counsel claim
based on trial counsel's decision not to request a Wade hearing and not to move
to suppress the out-of-court identifications.
The PCR court also considered defendant's claim his trial counsel was
ineffective by failing to move to suppress the out-of-court identifications based
on the police officers' alleged failure to record the dialogue between the officers
A-4049-17T2
7
and Boukary and Ba when the identifications were made, and it determined
defendant failed to establish a prima facie case of ineffective assistance of
counsel for failing to move to suppress Boukary's and Ba's identifications under
Delgado.
Finally, the court found defendant's claims his trial counsel inadequately
discussed his options and failed to provide all discovery materials were too
vague to constitute cognizable PCR claims. The court entered an order denying
defendant's PCR petition. This appeal followed.
On appeal, defendant presents the following arguments for our
consideration:
POINT I
THE PCR COURT SHOULD HAVE HELD THAT
DEFENDANT'S RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WAS VIOLATED BY
HIS ATTORNEY'S FAILURE TO FILE A MOTION
TO EXCLUDE THE SUGGESTIVE EYEWITNESS
IDENTIFICATIONS THAT WERE CENTRAL TO
THE PROSECUTION'S CASE AT TRIAL.
(a) Defendant Is Entitled to Relief Under Controlling
Legal Principles Governing Petitions for Post-
Conviction Relief Pursuant to R. 3:22-2 et seq.
(b) The PCR Court's Decision to Deny Defendant an
Evidentiary Hearing is Contrary to the Appellate
Division's Prior Ruling on Direct Appeal, Which Found
A-4049-17T2
8
that the Documentary Record Alone Was Insufficient to
Decide Defendant's IAC Claims.
(c) Trial Counsel Should Have Filed a Motion Pursuant
to United State[s] v. Wade, 388 U.S. 218 (1967), to
Exclude the Photo Array Identification Made By
Sawadogo Boukary.
(d) Trial Counsel Should Have Filed a Motion to
Exclude the Photo Array Identification Made By
Sawadogo Boukary for Failure to Comply with State v.
Delgado, 188 N.J. 48 (2006).
(e) Trial Counsel Should Have Filed a Wade Motion to
Exclude the Showup Identification Made By Roukiatou
Ba.
(f) Trial Counsel Should Have Filed a Motion to
Exclude the Showup Identification Made By Roukiatou
Ba for Failure to Comply with State v. Delgado.
(g) Trial Counsel Provided Ineffective Assistance By
Failing to Communicate Adequately With Defendant
Prior to Trial.
II.
Where, as here, the court denies a defendant's PCR petition without an
evidentiary hearing, we "conduct a de novo review" of the court's order. State
v. Jackson, 454 N.J. Super. 284, 291 (App. Div.) (quoting State v. Harris, 181
N.J. 391, 421 (2004)), certif. denied, 236 N.J. 35 (2018). We have conducted
that review, considered defendant's arguments in light of the record, and affirm
the court's order.
A-4049-17T2
9
We reject defendant's claim the PCR court erred by denying his request
for an evidentiary hearing because on direct appeal we deemed the trial record
inadequate to determine the ineffective assistance of counsel claim. Defendant
argues our decision required that the court conduct an evidentiary hearing once
defendant's PCR claim was filed. Defendant misreads our decision on his direct
appeal.
Although we stated the trial record "does not reveal the totality of the
circumstances required to determine whether the identifications would have
been admissible under the Manson/Madison standard" and lacked "information
regarding the basis for trial counsel's decision not to request a hearing," we
concluded only that defendant's ineffective assistance of counsel claim was "best
left for a post-conviction relief petition." Paden, slip op. at 13-14. We did not
order an evidentiary hearing in the event defendant filed a PCR petition, and we
made clear our opinion did "not constitute an opinion on the merits of
defendant's ineffective assistance of counsel claim." Id. at 14.
An evidentiary hearing on a PCR petition should be granted only when a
defendant presents a prima facie case for PCR, the court determines the existing
record is not adequate for resolving the claim, and the court determines an
evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 (2013) (citing
A-4049-17T2
10
R. 3:22-10(b)). "A prima facie case is established when a defendant
demonstrates 'a reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will ultimately succeed on
the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-part test established in Strickland by establishing
his trial "counsel's performance was deficient and . . . that there exists a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." 466 U.S. at 694; see also Fritz, 105
N.J. at 58. A defendant must establish both prongs in order to obtain a reversal
of the challenged conviction. Strickland, 466 U.S. at 697; State v. Nash, 212
N.J. 518, 542 (2013). "The test is not whether defense counsel could have done
better, but whether he [or she] met the constitutional threshold for
effectiveness." Nash, 212 N.J. at 543.
Because it is inherently difficult to evaluate defense counsel's tactical
decisions from his or her perspective during trial, a court must "indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance, [and] the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be considered sound
A-4049-17T2
11
trial strategy.'" Harris, 181 N.J. at 431 (quoting Strickland, 466 U.S. at 689)
(citation omitted). When a PCR petition is based on an alleged failure to file a
suppression motion, "the defendant not only must satisfy both parts of the
Strickland test but also must prove that his [claim] is meritorious." State v.
Fisher, 156 N.J. 494, 500-01 (1998) (citing Kimmelman v. Morrison, 477 U.S.
365, 375 (1986)). In other words, to succeed on his ineffective assistance of
counsel claim, defendant was required to demonstrate he was entitled to a Wade
hearing and his motion to suppress the out-of-court identifications would have
been successful.
Defendant makes four ineffective-assistance-of-counsel claims based on
his trial counsel's decisions not to request a Wade hearing or otherwise move to
suppress Boukary's and Ba's out-of-court identifications. After careful review,
we determine defendant failed to establish a prima facie case of ineffective
assistance of counsel on any of the claims, and, therefore, the PCR court
correctly denied PCR without an evidentiary hearing.
A.
Defendant first argues his trial counsel was ineffective by failing to move
for a Wade hearing to suppress Boukary's photo array identification of
defendant.
A-4049-17T2
12
A trial court may hold a Wade hearing pursuant to N.J.R.E. 104(a) to
determine whether a pretrial identification of a criminal defendant was properly
conducted and therefore admissible under N.J.R.E. 803(a)(3). However, the
right to a Wade hearing is not absolute and a hearing is not required in every
case involving an out-of-court identification. State v. Ruffin, 371 N.J. Super.
371, 391 (App. Div. 2004). "A threshold showing of some evidence of
impermissive suggestiveness is required." Ibid. (citing State v. Ortiz, 203 N.J.
Super. 518, 522 (App. Div. 1985)). Impermissible suggestibility is described as
follows:
[T]he determination [of impermissible suggestibility]
can only be reached so as to require the exclusion of the
evidence where all of the circumstances lead forcefully
to the conclusion that the identification was not actually
that of the eyewitness, but was imposed upon him so
that a substantial likelihood of irreparable
misidentification can be said to exist.
[Madison, 109 N.J. at 234.]
If the court finds the identification procedure was impermissibly
suggestive, it must then determine whether the procedure was nevertheless
reliable. Id. at 232-33. "The totality of the circumstances must be considered
in weighing the suggestive nature of the identification against the reliability of
the identification." State v. Herrera, 187 N.J. 493, 504 (2006).
A-4049-17T2
13
In Manson, the United States Supreme Court identified five reliability
factors to be considered by the trial court: (1) whether the witness had the
opportunity to view the criminal at the time of the crime; (2) the witness's degree
of attention; (3) the accuracy of the witness's prior description of the criminal;
(4) the witness's level of certainty at the time of the identification confrontation;
and (5) the amount of time between the crime and the confrontation. 432 U.S.
at 114. If after evaluating those factors the court is convinced that,
notwithstanding the suggestive nature of the procedure, the witness's
identification is reliable, then the identification may be admitted into evidence.
Ibid. Thus, to obtain a Wade hearing, defendant here was required to show that
Boukary's identification was tainted by impermissibly suggestive procedures,
and then that the identification was not reliable and should be suppressed.
Madison, 109 N.J. at 232.
In arguing the photo array was impermissibly suggestive, defendant
contends he was the only person wearing a black hooded sweatshirt in his photo
and Boukary described his assailant as wearing black clothing. Defendant also
claims Boukary's identification was not sufficiently reliable under the
Manson/Madison factors because Boukary's prior description of the assailant
was deficient in detail and inaccurate regarding defendant's height.
A-4049-17T2
14
We find unpersuasive defendant's argument his clothing in his photo was
impermissibly suggestive. During trial, Boukary described his assailant as
wearing either a black jacket or t-shirt with "some kind of hat." While the small
portion of the hooded sweatshirt that can be seen in defendant's photo is black,
he is not depicted wearing a black jacket, t-shirt, or a hat. Moreover, each of
the six photos in the array depict the face and neck of black males with short,
dark hair. Each man appears the same age, and their facial features are similar.
As noted by the PCR court, the photo array was also presented by an
officer who had no knowledge concerning the investigation or the identity of the
suspect, and he presented the array to Boukary in accordance with the Attorney
General Guidelines. Boukary immediately identified defendant as the assailant
when presented with his photo, the fourth in the array, and defendant makes no
showing the identification constituted an "irreparable misidentification" that
was "imposed upon him." Madison, 109 N.J. at 234 (quoting State v. Farrow,
61 N.J. 434, 451 (1972)).
Even if the photo array procedure was in some way suggestive, defendant
makes no showing the identification was otherwise not reliable. Defendant
argues the identification was unreliable because Boukary described his assailant
as "short," but the photo array did not show the size of the individuals depicted
A-4049-17T2
15
and the totality of the reliability factors, Herrera, 187 N.J. at 504, including
Boukary's close proximity—an "arm's length"—to the assailant holding the gun,
Boukary's certainty in his selection of defendant's photo, and the short amount
of time—two days—between the robbery and identification undermine any
reasoned conclusion there was a substantial likelihood of irreparable
misidentification requiring suppression of the identification. See Madison, 109
N.J. at 234.
Trial counsel's alleged failure to request a Wade hearing or otherwise seek
suppression of Boukary's identification of defendant did not constitute deficient
performance because the identification was untainted by impermissible
suggestiveness and defendant makes no showing a suppression motion would
have had merit. "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.").
Defendant failed to satisfy his burden under both prongs of the Strickland
standard and therefore was not entitled to either PCR or an evidentiary hearing
A-4049-17T2
16
on his claim his counsel was ineffective by failing to move to suppress Boukary's
out-of-court identification of defendant. 466 U.S. at 694.
B.
Defendant also argues his trial counsel was ineffective by failing to move
to exclude Boukary's photo array identification because it did not comply with
the recording requirements at the time, as set forth in Delgado.2 Defendant
argues the officers did not adequately record the dialogue between Boukary, his
cousin Issa, and Detective Crawley, when they had the opportunity to make an
audio recording of the conversation, and that the records do not show which
officer prepared the photo array and how the filler photographs were selected.
Addressing the admissibility of an out-of-court identification, the Court
in Delgado required that:
law enforcement officers make a written record
detailing the out-of-court identification procedure,
including the place where the procedure was conducted,
the dialogue between the witness and the interlocutor,
and the results. Preserving the words exchanged
between the witness and the officer conducting the
identification procedure may be as important as
2
In 2012, the Supreme Court adopted Rule 3:11, which provides the conditions
for admissibility of certain out-of-court identifications, including "from a photo
array," and describes the requirements for recording out-of-court identification
procedures. Rule 3:11 was not in effect when Boukary and Ba made the out-of-
court identifications at issue on appeal. Therefore, Delgado provides the
applicable standard.
A-4049-17T2
17
preserving either a picture of a live lineup or a
photographic array. When feasible, a verbatim account
of any exchange between the law enforcement officer
and witness should be reduced to writing. When not
feasible, a detailed summary of the identification
should be prepared. In the station house where tape
recorders may be available, electronic recordation is
advisable, although not mandated.
[188 N.J. at 63.]
Thus, Delgado does not mandate an audio or video recording of an identification
procedure, provided the procedure is sufficiently captured in a written record.
Here, as noted by the PCR court, the police officers maintained a written
record of the photo array identification procedure; the photo array ; the witness
instructions signed by Boukary; a photographic identification form; and a photo
display report. PCR counsel did not argue the written records were deficient.
In fact, PCR counsel stated during the PCR hearing "it appears that everything
was done properly." We need not address the merits of defendant's argument
that the records were inadequate under Delgado, see State v. Robinson, 200 N.J.
1, 20-22 (2009) (declining to address an argument on appeal because it was "not
properly presented to the trial court" and did not go to the court's jurisdiction or
"concern matters of great public interest" (quoting Nieder v. Royal Indem. Ins.
Co., 62 N.J. 229, 234-35 (1973))), other than to note we find no basis to reverse
the PCR court's finding the records substantially complied with the requirements
A-4049-17T2
18
of Delgado. We therefore reject defendant's claim trial counsel was ineffective
by failing to argue Boukary's identification was inadmissible under Delgado.
C.
Defendant next argues trial counsel was ineffective by failing to request a
Wade hearing and the suppression of Ba's showup identification. Defendant
claims Ba's identification was tainted by impermissibly suggestive procedures
because the officers placed defendant in one patrol car while his companions
were placed in a second car; failed to ask in an open-ended manner whether Ba
recognized anyone; and allowed Ba to make the identification while looking
through the store window.
Our Supreme Court has determined "one-on-one showups are inherently
suggestive . . . because the [witness] can only choose from one person, and,
generally, that person is in police custody," and, therefore, "only a little more is
required in a showup to tip the scale toward impermissibly suggestive." Herrera,
187 N.J. at 504. However, the Court also stressed that "standing alone, a showup
is not so impermissibly suggestive to warrant proceeding to the second step ."
Ibid. "Each showup setting must necessarily stand or fall on its own unique
facts." State v. Romero, 191 N.J. 59, 77 (2007).
A-4049-17T2
19
In Romero, the Court considered a showup procedure conducted after a
robbery victim saw a man he believed to be his attacker walking in front of his
house and called the police. 191 N.J. at 78-79. After the victim accompanied
the officers on an initial, unsuccessful search, the officers found defendant,
arrested him, and brought him in the back of a patrol car to the victim's home.
Ibid. The officers summoned the victim to the car, telling him "we have
somebody that fits the description [that] you described" and "[w]hy don't you
take a walk around the corner with us and see if this is the person." Id. at 78.
The victim viewed the defendant through the side window of the patrol car and
identified him as the attacker. Ibid.The Court determined the procedure was not impermissibly suggestive
because "it originated from the victim's own observation of someone he believed
was his assailant." Ibid. The Court reasoned it would not have been an
impermissibly suggestive showup if the officers and the victim had found the
defendant while initially walking down the street, and the fact they separated for
a few minutes did not result in "the type of showup that is fraught with the
worries typically generated by a suggestive police-initiated showup." Ibid.The Court further reasoned that after arresting the defendant, the officers
told the victim "only that they had detained someone who fit the description
A-4049-17T2
20
given by [the victim] minutes earlier." Ibid. The Court determined "[t]he fact
that [the] defendant was handcuffed in the police car did not convert this showup
identification into one that was impermissibly suggestive." Ibid.; see also State
v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003) ("[T]here is no question
that there was suggestiveness present because the defendant was identified while
seated and handcuffed in the back of a police car. However, such suggestive
circumstances did not render the identification procedure per se improper and
unconstitutional.")). The Court concluded that "[i]n presenting a man fitting
[the victim's] unsolicited description, the police made no representations that he
was the man who attacked [the victim], only that he matched [the victim 's]
description," and, therefore, the showup was not impermissibly suggestive. Id.
at 79.
Here, Ba's identification procedure parallels the procedure upheld in
Romero. Ba knew Boukary's stolen card was being used improperly, and she
had a clear view of the card user during the attempted transaction. Immediately
after the attempted use of the card, Ba alerted an officer about the individuals
who had been in the store. After Ba made this initial identification, the officer
kept the individuals under surveillance until they were detained and returned to
the store in police vehicles. As the Court reasoned in Romero, if Ba had
A-4049-17T2
21
accompanied the officer she alerted while he followed the individuals and then
made her second identification, there would be no viable claim of impermissible
suggestiveness. The period during which the officers were separate from Ba
was brief – the time between the attempted use of the card and the showup
identification was roughly twenty minutes – and did not result in "the type of
showup that is fraught with the worries typically generated by a suggestive
police-initiated showup." Romero, 191 N.J. at 78.
When the officers returned to Ba with the four individuals to perform the
showup identification procedure, Officer Dannoys asked Ba "[i]s that the
individual that you saw try to use the credit card." In phrasing the question this
way, Officer Dannoys did not alert Ba that he observed defendant discard the
credit card or suggest that defendant had attempted to use the card or was a
suspect in the robbery. Rather, he merely asked Ba to confirm the identification
she unilaterally and voluntarily made to him minutes earlier. This was similar
to Romero, where the officers told the victim they detained someone matching
his earlier description, without suggesting he was the assailant. In addition, as
in Romero, Ba's showup identification was consistent with her first
identification, which she initiated on her own, of the group of individuals who
left the store following the attempted use of Boukary's credit card.
A-4049-17T2
22
Further, although the Court in Romero acknowledged it was suggestive to
have a person handcuffed in a patrol car, it determined such action was not per
se impermissibly suggestive; especially when the witness initiated the
identification, only a brief amount of time passed, and the officers did not ask
impermissibly suggestive questions. Id. at 78-79. We apply the same reasoning
here and conclude the showup procedure at the gas station was not
impermissibly suggestive.
In addition, defendant makes no showing Ba's identification was not
reliable, and the record otherwise shows that it was. Ba had the opportunity to
view defendant at the store counter when the stolen card was presented; she
immediately directed the officer to the group of men, including defendant, who
attempted to use the stolen card; and she was certain of her identification that
she made only twenty minutes after defendant presented the stolen card. See
Madison, 109 N.J. at 234 (finding "sufficient reliability in the identification[] to
overcome the suggestive nature and establish that there was not a substantial
likelihood of irreparable misidentification").
Defendant fails to demonstrate his counsel's performance was deficient by
not requesting a Wade hearing or moving to suppress Ba's out-of-court
identification, and he makes no showing that but for his counsel's purported error
A-4049-17T2
23
the result of his trial would have been different. The court correctly rejected his
PCR claim and his request for an evidentiary hearing because he failed to satisfy
either prong of the Strickland standard. Strickland, 466 U.S. at 697; Nash, 212
N.J. at 542.
D.
Defendant also argues trial counsel was ineffective by failing to move to
exclude Ba's identification under Delgado. Specifically, defendant contends
there is no documentation of Ba's showup identification in the police reports for
defendant's arrest; Ba provided no description of the suspect; police provided no
record of their dialogue with Ba; and the identification was never mentioned in
any reports or properly documented until Officer Dannoys testified before the
grand jury about the showup.
There is no dispute the police did not mention Ba's identification in their
written records about defendant's arrest, and Delgado requires some "written
record" of out-of-court identifications. 188 N.J. at 63. Therefore, trial counsel
may have succeeded had he moved to exclude Ba's identification under Delgado.
However, even if we assume trial counsel's performance was deficient by not
moving to exclude Ba's identification, defendant must also satisfy the second
A-4049-17T2
24
prong of the Strickland standard to establish a prima facie case of ineffective
assistance of counsel. Nash, 212 N.J. at 542.
Defendant fails to satisfy Strickland's second prong. In his brief,
defendant addresses the second prong of Strickland with only the conclusory
assertion that, "[w]ithout Ba's testimony at trial . . . there is a substantial
probability that defendant would have been acquitted."
However, even without Ba's out-of-court identification, the jury would
have heard her testimony that an individual accompanied by three others
attempted to use Boukary's stolen card; Ba immediately identified the group of
individuals to Officer Dannoys; Officer Dannoys saw defendant discard
Boukary's bank card; and Boukary identified defendant as the assailant who held
the gun during the robbery. Given the strength of this evidence, defendant did
not demonstrate "a reasonable probability that . . . the result of the proceeding
would have been different," ibid., if Ba's out-of-court identification had been
suppressed. Defendant's failure to satisfy Strickland's second prong requires the
denial of PCR on his claim his counsel was ineffective by failing to move to
suppress Ba's out-of-court identification. See State v. Gaitan, 209 N.J. 339, 350
(2012) ("Although a demonstration of prejudice constitutes the second part of
the Strickland analysis, courts are permitted leeway to choose to examine first
A-4049-17T2
25
whether a defendant has been prejudiced, and if not, to dismiss the claim
without" regard to whether "counsel's performance was constitutionally
deficient").
E.
We also address defendant's argument his trial counsel was ineffective by
failing to communicate adequately with him prior to trial. Defendant contends
that, although the PCR court found his claims to be overly vague and lacking in
specificity, he intended to supply additional detail when he testified before the
PCR court "to provide further support for his claims of inadequate preparation
and consultation."
This claim is without merit. "[A] defendant is not entitled to an
evidentiary hearing if the 'allegations are too vague, conclusory, or speculative
to warrant an evidentiary hearing.'" Porter, 216 N.J. at 355 (quoting State v.
Marshall, 148 N.J. 89, 158 (1997)). "Rather, defendant must allege specific
facts and evidence supporting his allegations." Ibid.Here, defendant fails to identify with specificity what trial counsel
allegedly failed to communicate and to demonstrate how, if such
communications had been made, they would have affected the trial proceedings.
A-4049-17T2
26
Defendant's claim is too vague and conclusory to establish a prima facie case
sufficient to warrant an evidentiary hearing. Ibid.F.
We last address defendant's claim the court erred by denying his PCR
petition without an evidentiary hearing. We find the argument without sufficient
merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), other than to
note that an evidentiary hearing was not required because defendant failed to
establish a prima facie case of ineffective assistance of counsel on any of his
claims. See Marshall, 148 N.J. at 157-58 (explaining an evidentiary hearing on
a PCR petition is not required where a defendant fails to establish a prima facie
case of ineffective assistance of counsel).
Any of defendant's remaining arguments we have not addressed directly
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
A-4049-17T2
27