STATE OF NEW JERSEY VS. IVAN HERRERA MOLINA (16-12-3513, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3315-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IVAN HERRERA MOLINA,
a/k/a LOUIS S. MORENO,
Defendant-Appellant.
__________________________
Submitted February 3, 2020 – Decided May 5, 2020
Before Judges Messano and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-12-3513.
Joseph E. Krakora, Public Defender, attorney for
appellant (Susan Brody, Assistant Deputy Public
Defender, of counsel and on the brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Jason Magid, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant, Ivan Herrera Molina, appeals from his trial convictions for
aggravated assault and related firearms offenses. He contends for the first time
on appeal that his trial counsel rendered ineffective assistance by failing to file
a pretrial motion to suppress evidence found during a search of defendant's
bedroom in a boarding house and by failing to seek a Wade/Henderson 1 hearing
to challenge a single-photo identification procedure. Defendant also claims for
the first time on appeal that the trial court erred by allowing the jury to hear
inadmissible hearsay evidence. Specifically, the State's ballistics expert
commented that a non-testifying peer concurred with the expert's conclusion that
the shell casing recovered in defendant's bedroom matched the shell casing
found at the scene of the shooting.
We have reviewed the record in light of the applicable principles of law
and affirm the trial verdict with respect to the ballistic expert's testimony
concerning the peer review process. Although the witness's brief reference to
the non-testifying expert's conclusions was inadmissible hearsay, this small
1
United States v. Wade, 388 U.S. 218 (1967) (holding that a post-indictment
lineup is a critical stage of proceedings at which the defendant was entitled to
the aid of counsel, and that the State having denied the presence of counsel a
hearing was required to determine whether the witness’s in-court identification
was admissible); State v. Henderson, 208 N.J. 208 (2011) (requiring a hearing
to determine the admissibility of identification evidence when a defendant
presents some evidence of suggestive police practices).
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portion of the expert testimony, when considered in the context of the
overwhelming evidence of guilt adduced by the State at trial, was not capable of
producing an unjust result and thus does not rise to the level of plain error. R.
2:10-2.
Although we reject defendant's contention regarding the hearsay
testimony, the current record does not allow us to resolve defendant's ineffective
assistance claim. We therefore remand the matter for the trial court to make
findings of fact and law with respect defendant's Fourth Amendment and
Wade/Henderson contentions in view of the two-pronged test for ineffective
assistance of counsel claims spelled out in Strickland v. Washington, 466 U.S.
688 (1984).
I.
We presume the parties are familiar with the facts; therefore, we briefly
summarize the facts that are relevant to the appeal. The State presented evidence
at trial that defendant and Leopold Martinez-Ventura engaged in a physical
altercation after a soccer game. Neither was injured. Defendant went inside a
nearby rooming house on Carmen Street where he resided. He emerged with a
rifle. Defendant fired a single shot that missed Martinez-Ventura and his
friends. Defendant fled the scene in a vehicle.
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Martinez-Ventura and several of his friends ran from the scene and
flagged down a police officer on patrol. The officer heard the single gunshot
and was advised by the police dispatcher that the Camden City ShotSpotter
system had detected gunfire in the area. The officer did not speak Spanish but
was able to discern that Martinez-Ventura and his friends had information
concerning the gunshot. They directed the officer to the rooming house on
Carmen Street. The officer canvassed the area outside the premises and located
a single spent shell casing. That shell casing, which was in pristine condition,
bore the mark FC .30-06. It was found approximately ten feet from the front
steps of the boarding house. Spanish-speaking officers soon arrived at the scene
and were able to communicate with Martinez-Ventura and his friends. They told
the officers that they had observed defendant, who they referred to by the
nickname El Hueso, run into the residence and exit with the rifle.
The officers entered the boarding house and conducted a protective sweep
search. They located four individuals inside and learned from those individuals
that there was a fifth resident, defendant, who was not present. The four
residents who were present each executed a consent-to-search form authorizing
police to search their individual bedrooms. The officers were told that
defendant's bedroom was the first door on the left inside the house. At some
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point the officers entered defendant's bedroom and searched it. 2 That search
uncovered two rounds of live ammunition—a .38 caliber round and a shotgun
round—and a spent FC .30-06 rifle shell casing. In addition, they seized several
legal documents, including defendant's passport. The rifle was never recovered.
The next day, police met with Martinez-Ventura. They showed him the
photo from the passport that had been seized from defendant's bedroom. The
victim confirmed that defendant was the person who had discharged the weapon.
Martinez-Ventura knew defendant and referred to him by the nickname El
Hueso.
Defendant later provided a statement to police in which he acknowledged
that he had engaged in a verbal and physical altercation with several individuals
who were at the soccer field near his residence. Defendant claimed that he had
not retrieved a rifle, but rather had retrieved a baseball bat. He also claimed that
2
The parties' briefs refer to an initial search of defendant’s house as a
"protective sweep search." The parties’ briefs also allude to a subsequent search
of defendant's bedroom authorized by a search warrant. The record is not clear
whether the shell casing and passport found in defendant's bedroom were
discovered during an initial sweep search or were later discovered during a
search authorized by the warrant. Defendant speculates that the police
unlawfully discovered the shell casing and passport during the protective sweep
search, rendering that evidence subject to the exclusionary rule.
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although he was aware of the ammunition in his bedroom, it belonged to a prior
tenant.
The State at trial presented evidence from a ballistics expert who testified
that the FC .30-06 shell casing found outside the rooming house was fired from
the same rifle that fired the FC .30-06 shell casing found in defendant's bedroom.
Based on this evidence, a jury found defendant guilty of unlawful
possession of a firearm, N.J.S.A. 2C:39-5(c)(1), possession of a firearm for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and three different variations of
aggravated assault, N.J.S.A. 2C:12-1(b)(1), (2), (4). Defendant was sentenced
on the Graves Act firearms conviction to a five-year prison term with the
mandatory forty-two-month period of parole ineligibility. After merger, he was
sentenced on the aggravated assault conviction under N.J.S.A. 2C:12-1(b)(1) to
a concurrent five-year term subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2.
II.
Defendant raises the following contentions for our consideration:
POINT I
BECAUSE DEFENSE COUNSEL FAILED TO
REQUEST A HEARING ON EITHER THE
PROTECTIVE SWEEP OF THE ROOMING HOUSE
OR THE SINGLE-PHOTO IDENTIFICATION
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PROCEDURE, DEFENDANT WAS DEPRIVED HIS
CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
A. THE SINGLE-PHOTO
IDENTIFICATION PROCEDURE.
B. THE PROTECTIVE SWEEP.
C. INEFFECTIVE ASSISTANCE
OF COUNSEL.
POINT II
THE COURT ERRED IN ADMITTING DAMAGING
INADMISSIBLE HEARSAY FROM THE STATE'S
EXPERT, REQUIRING REVERSAL.
III.
We first address defendant's contention that the trial court erred in
allowing the State's ballistics expert to mention during his direct examination
that another expert, who was not called to testify, concurred that both shell
casings had been fired from the same weapon. During the direct examination,
the State's expert testified, "[w]e have 100 percent peer review meaning if there
is [sic] 75 pieces of evidence, all 75 pieces of evidence are looked at under the
comparison microscope. [The peer reviewer] either agrees with me or disagrees
with my findings." The expert added, "[i]n this particular case, he agreed with
my findings." No objection was made to this statement.
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We hold that it was improper for the expert to testify as to the opinion
rendered by a non-testifying peer reviewer. See State v. Branch, 182 N.J. 338,
349–50 (2005) ("[B]oth the Confrontation Clause and the hearsay rule are
violated when, at trial, a police officer conveys, directly or by inference, the
information from a non-testifying declarant to incriminate the defendant in the
crime charged."). We agree with defendant that the shell casing evidence was an
important part of the State's case. However, we do not believe the expert's brief,
isolated reference to another examiner's concurring opinion had the capacity to
produce an unjust result when considered in light of the strength of the other
evidence of guilt that the State adduced at trial. 3 R. 2:10-2. We note that
defendant on appeal has not presented expert opinion contesting the conclusion
that the two shell casings had been fired from the same rifle. We further note
that defendant does not contest that both shell casings bear the same
identification number—a conclusion that does not depend on a forensic expert's
microscopic examination.
3
We note that defendant on appeal intimates that trial counsel's failure to object
to the expert's hearsay statement is another instance of ineffective assistance.
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IV.
We next address defendant's contention that he was denied effective
assistance of counsel. In doing so, we first acknowledge the legal principles that
apply.
Both the Sixth Amendment of the United States Constitution and Article
1, paragraph 10 of the State Constitution guarantee the right to effective
assistance of counsel at all stages of criminal proceedings. Strickland v.
Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a
violation of the right to the effective assistance of counsel, a defendant must
meet the two-part test articulated in Strickland. Fritz, 105 N.J. at 58. "First, the
defendant must show that counsel's performance was deficient . . . . Second, the
defendant must show that the deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687.
To meet the first prong of the Strickland test, a defendant must show "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge in a
"strong presumption that counsel's conduct falls within the wide range of
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reasonable professional assistance." Id. at 689. The fact that a trial strategy
fails to obtain for a defendant the optimal outcome is insufficient to show that
counsel was ineffective. State v. DiFrisco, 174 N.J. 195, 220 (2002)
(citing State v. Bey, 161 N.J. 233, 251 (1999)).
The second prong of the Strickland test requires the defendant to show
"that counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently,
counsel's errors must create a "reasonable probability" that the outcome of the
proceedings would have been different than if counsel had not made the
errors. Id. at 694. This assessment is necessarily fact-specific to the context in
which the alleged errors occurred. See id. at 695 (noting the different questions
posed when a defendant challenges a conviction rather than a sentence). When
a defendant challenges a conviction, the second Strickland prong is particularly
demanding: "[t]he error committed must be so serious as to undermine the
court's confidence in the jury's verdict or the result reached." State v. Allegro,
193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).
We first consider defendant's contention that his attorney was ineffective
for failing to file a motion to suppress evidence seized from his bedroom. As
we have already noted, the record before us is unclear whether the shell casing
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and passport were discovered and seized during the protective sweep search
officers conducted when they initially canvassed the rooming house or were
instead seized during the execution of a search warrant. See supra note 2. We
note that a "protective sweep search" pursuant to Maryland v. Buie, 494 U.S.
325 (1990), authorizes police to locate persons, not small objects such as a shell
casing or passport. See also State v. Davila, 203 N.J. 97, 114 (2010) (observing
protective sweep searches "may extend only to a cursory inspection of those
spaces where a person may be found" (quoting Buie, 494 U.S. at 335)).
The record developed at trial does not allow us to determine whether
competent counsel would have filed a motion to suppress and whether any such
motion would have resulted in the suppression of the shell casing or passport.
See State v. Johnson, 365 N.J. Super. 27, 37 (App. Div. 2003) (noting because
a suppression motion was never filed, a hearing on the issues was never held,
and thus the State had no opportunity to justify the search).
Similarly, we are not able on this record to resolve defendant's contention
that counsel rendered constitutionally defective assistance by failing to
challenge the manner in which the victim identified defendant as the person who
fired the rifle following the altercation. See Henderson, 208 N.J. at 276–78,
288–299 (summarizing best practices adopted by the Attorney General
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Guidelines in administering photo lineups and articulating the current
framework for assessing and presenting identification procedures at pretrial
hearings, at trial, and in jury instructions). The use of a single photograph, rather
than an array of multiple photos, appears to be inconsistent with an Attorney
General Directive concerning identification procedures police must follow.
Attorney General Guidelines for Preparing and Conducting Photo and Live
Lineup Identification Procedures 2 (Apr. 18, 2001) (advising photo lineup
administrators to “[i]nclude a minimum of five fillers (nonsuspects) per
identification procedure”).
However, we cannot determine on the record before us whether defendant
would have been entitled to a Wade/Henderson hearing or whether the outcome
of any such hearing would have changed the result of the trial. See Henderson,
208 N.J. at 289 (directing trial courts to remedy potential misidentifications
through either suppression of the identification evidence or through appropriate,
tailored jury charges); Model Jury Charges (Criminal), “Identification: In-Court
and Out-of-Court Identifications” (rev. July 19, 2012) (supplying the
appropriate jury instructions in cases involving in-court and out-of-court
identification); see also R. 3:11(d) (providing remedies for failure to record out-
of-court identification procedures, including suppression of the identification,
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redaction, and/or the fashioning of an appropriate jury charge). It appears that
Martinez-Ventura knew defendant and had referred to him by a nickname before
being shown the single photograph. State v. Pressley, 232 N.J. 587, 592–93
(2018) (commenting that “confirmatory identifications” where a witness
identifies someone he or she already knows but can only identify by a street
name are not considered suggestive). Furthermore, defendant had admitted to
police that he was involved in an altercation with Martinez-Ventura and his
friends. In these circumstances, the assailant's identity may not have been a
contested issue at trial, which would impact the analysis under both prongs of
the Strickland test.
V.
We recognize that as a general matter, ineffective assistance claims are
raised in collateral, post-conviction relief proceedings rather than direct appeals
such as the one presently before us "because such claims involve allegations and
evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460
(1992). We elect in this case to remand the matter for the trial court to make
appropriate findings of fact and law with respect to defendant's contentions.
Accord Johnson, 365 N.J. Super. at 37 (remanding to the trial court for a “full
hearing” on a defendant’s ineffective assistance claims raised on direct appeal).
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We intimate no view as to whether a motion to suppress physical evidence or to
convene a Wade/Henderson hearing, if properly made, would ultimately have
been successful.
The trial court on remand may require the parties to produce such
information and briefs, as the court deems appropriate. We also leave it to the
discretion of trial court whether to permit or require testimony from witnesses.
Affirmed in part and remanded in part for proceedings consistent with this
opinion. We do not retain jurisdiction.
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