STATE OF NEW JERSEY v. HASSAN JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-A-2920-04T42920-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN JACKSON,

Defendant-Appellant.

________________________________________

 

Submitted July 3, 2006 - Decided July 31, 2006

Before Judges Collester and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Ind. No. 04-02-0426.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael B. Jones, Assistant

Deputy Public Defender, of counsel and on the

brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Barbara A. Rosenkrans, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Hassan Jackson appeals from his conviction after a two-day jury trial of four counts of a seven count indictment: aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); robbery, N.J.S.A. 2C:15-1 (count two); unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). Counts five, six and seven were dismissed on the State's motion at the conclusion of its case-in-chief. On December 14, 2004, defendant was sentenced on count two (robbery) to a twelve-year prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requirement of 85% parole ineligibility. Concurrent terms were imposed on the remaining counts. Appropriate penalties and assessments were also imposed.

On the night of October 3/4, 2003, Jimmie Sneed, accompanied by Nicole Langley, was attempting to buy marijuana in Orange. Once Sneed's dealer arrived, Sneed and Langley got out of Sneed's Mercedes and Sneed made his purchase. Two men Sneed had noticed in the area earlier ran up, one brandishing a pistol, and the gunman said, "You know what this is." Sneed's drug dealer fled with the other robber in pursuit. Sneed grabbed the armed man in a "bear hug" and began a struggle for the gun. According to Sneed, this struggle lasted twenty seconds, all of which Sneed devoted to remembering the face of his attacker in case the two should meet again. Sneed testified that he had never before been in a life-and-death situation, and recounted that Ms. Langley was screaming quite loudly throughout. However, Sneed was unwavering in his insistence that his attention remained on the face of the man and was not diverted by the struggle over the gun nor by Langley's screams.

The two men broke, and the gunman fired at Sneed, hitting him in the stomach; Sneed was unsure of how many shots were fired. Langley drove him to one hospital from which he was transferred to another.

The next day, Sneed met Detective Coley; however, according to Coley, Sneed felt too bad to discuss the matter. Coley left and asked Sneed to call him when he felt better. Three or four days later, about October 8, Coley called Sneed to ask that he come to the station to discuss the case. Although Coley recalled that Sneed came in at some point shortly thereafter, no paperwork reflected that visit, nor did Sneed mention such a visit in his testimony.

In any event, on October 28, about three weeks after he had been released from the hospital, Sneed went to the police station and met with Coley. By the end of the meeting, Sneed had selected a picture of defendant as the man who shot him. However, Coley and Sneed provided different versions of how the identification came about.

Sneed testified that he had contact with Coley twice after he left the hospital. He was unable to keep his first appointment. At his second appointment, about a week after he was out of the hospital, he was provided with a large number of books full of photographs, which he reviewed. Ultimately, he said, he told the police that the man who shot him was "healthier" than those portrayed in the books and that the pictures were not "up to date." With this, the officers brought him a large envelope filled with many pictures. Sneed said that he looked through the newer pictures for between half an hour and an hour, until he came to defendant's picture and he "just reacted on it. . . . 'This is the M.F. right here.'"

Coley testified that Sneed had come to the station twice. The first time Sneed had unsuccessfully looked through books of photographs. By the second visit, Coley had generated a suspect and presented Sneed with six photographs in an envelope. Coley said he did not make the presentation himself, as a matter of protocol, but had his partner, who was also working on this case, handle the process with Sneed. Coley recounted that Sneed went through the pictures once, and then as he went through them a second time, stopped at defendant's photograph and announced that he was sure that this was the man who shot him. Coley testified that Langley had also been shown photographs, including the six-person photo array shown to Sneed, but had not identified defendant as one of the robbers.

In defense, defendant's girlfriend, Sharonda Bailey, testified that she and defendant had been at home the night of the robbery and had defendant's granddaughter with them, which made the time memorable. Defendant testified in his own defense that he had been at home when Sneed was shot and that he had no involvement in the crime whatsoever. Defendant also explained that some years earlier his leg had been badly injured in an accident, requiring the insertion of a rod and some pins. As a result, he was unable to run or jog and could only "hop fast." Bailey verified that she had never seen defendant run in the years they had been together.

On appeal defendant presents the following arguments:

POINT I

THE JUDGE'S FAILURE TO CHARGE ON THE TOPIC OF IDENTIFICATION DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)

POINT II

THE TESTIMONY OF DETECTIVE COLEY VIOLATED THE RULE IN STATE V. BANKSTON AND DEFENDANT'S RIGHT TO CONFRONT HIS ACCUSERS UNDER CRAWFORD v. WASHINGTON. (Not Raised Below)

POINT III

THE PROSECUTOR'S QUESTIONING OF MS. BAILEY CONCERNING WHY SHE DID NOT COME FORWARD EARLIER WITH HER ALIBI TESTIMONY EXCEEDED THE PERMISSIBLE SCOPE ALLOWED BY STATE V. SILVA AND DEFENDANT'S CONVICTIONS MUST BE REVERSED. (Not Raised Below)

The law concerning the necessity of an identification instruction, once relatively clear, has become somewhat murky. In State v. Green, 86 N.J. 281 (1981), the trial judge denied a defense request for an instruction on identification in addition to the general charge on credibility. Identification was the "key issue" and the "major, if not the sole, thrust of the defense." Id. at 291. In view of the "potential danger of mistaken eyewitness identification," the Court concluded that "the defendant had a right to expect that the appropriate guidelines would be given, focusing the jury's attention on how to analyze and consider the factual issue with regard to the trustworthiness of [the] in-court identification." Id. at 291-92. The Court further warned that "[t]he trial court's instructions should cover all essentials and counsel may justifiably assume that fundamental matters will be covered in the charge." Id. at 288.

The Court extended Green to cases in which no request was made for an identification charge. In State v. Pitts, 116 N.J. 580, 637 (1989) the Court held that, although counsel neglected to request an identification charge, "on an issue of that magnitude, counsel's [omission] could not relieve the trial court of its responsibilities." In State v. Frey, 194 N.J. Super. 326, 329 (App. Div. 1984), we reversed the defendant's convictions on plain error, holding that "[t]he absence of any eyewitness other than the victim and defendant's denial of guilt, made it essential for the court to instruct the jury on identification." Similarly, in State v. Middleton, 299 N.J. Super. 22, 32 (App. Div. 1997), we found it to be plain error to fail to instruct the jury on identification where that was the central issue. We held that the charge on the State's burden to prove defendant's presence at the scene beyond a reasonable doubt was an insufficient substitute. Ibid.

More recently, in State v. Cromedy, 158 N.J. 112, 128 (1999), the Court made the following definitive statement:

It is well-established that when identification is a critical issue in the case, the trial court is obligated to give the jury a discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how to analyze and consider the trustworthiness of eyewitness identification.

There is no doubt that identification was the "key," the "central" or "critical," issue in this case. Although no request was made for the Model Jury Charge (Criminal), "Identification," the failure to give the charge here would seem to readily satisfy the necessity of plain error. R. 2:10-2. "The absence of any eye-witness other than the victim and defendant's denial of guilt, made it essential for the court to instruct the jury on identification." Frey, supra, 194 N.J. Super. at 329. While strong corroborating evidence may preclude a claim of plain error, State v. Salaam, 225 N.J. Super. 66, 69-72 (App. Div.), certif. denied, 111 N.J. 609 (1988), "as a matter of general procedure a model identification charge should be given in every case in which identification is a legitimate issue." State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003). In Davis, we noted that defendant's claim of misidentification "although thin, was not specious. A jury is at liberty to reject a meritless defense, but trial courts are not at liberty to withhold an instruction, particularly when that instruction addresses the sole basis for defendant's claim of innocence and it goes to an essential element of the State's case." Id. at 561-62. Here, defendant's claim of misidentification was neither "thin" nor "specious." Not only was the opportunity for a reliable identification subject to question, but defendant presented an alibi through his own testimony and that of his companion.

Yet, the State contends that State v. Cotto, 182 N.J. 316 (2005), mandates that we reject defendant's claim of plain error in these circumstances. At the outset, the State argues that the defense here was not primarily based on misidentification but on the theory that the police "targeted" and influenced Sneed to identify defendant. We reject that premise. Although defendant may well have presented a "targeting" scenario, it was of necessity closely linked to the likelihood of misidentification. Such an alternate theory did not detract from the need for, or render less significant, a specific identification instruction. In fact, in summation, defense counsel did launch a specific attack on Sneed's identification, arguing in part:

[S]o I [submit] to you that there was not enough light there to make the identification that he says that he made. He can't tell what color the eyes were. He couldn't tell what kind of shirt the person was wearing. These are all things that I believe, I submit to you, are reasons for reasonable doubt.

. . . .

I submit to you he said to you the first time he ever came face to face with a gun his reaction was to grab for the gun and he heard his girlfriend screaming across the street but while he was struggling for this gun, he didn't look down at the gun. He was looking at the person's face he also testified that he didn't look over to see what was happening to his girlfriend. He said there were two individuals that were involved in this robbery.

I submit to you, ladies and gentlemen of the jury, that if he was wrestling with someone with a gun his attention would have been on that gun. They wouldn't have been on the face of the individual that allegedly robbed him on that late evening, early morning hours of October 3rd, October 4th. That was his testimony in a nutshell.

I submit to you that there is ample reasonable doubt in his so called identification that night. There is reasonable doubt right there.

. . . .

If you take the case in its totality, if you take this quick identification that's all the evidence you have that would convict my client, Mr. Jackson, and the testimony brought on by the defense, I submit to you that the only verdict that you can come back with after Judge Cassini reads you the charges is, looking at the verdict sheet, I submit to you, that the only verdict that could be brought forth by you is Mr. Jackson is not guilty of each and every charge.

That said, we return to Cotto. In Cotto, the defendant burglarized his ex-girlfriend's sister's apartment and then proceeded to rob her and his ex-girlfriend, who was in the adjacent apartment and went to her sister's apartment when she saw an intruder - who she subsequently recognized as the defendant -- try to enter it. Defendant's ex-girlfriend's young children were staying with their aunt and observed what occurred. Defendant called one of the children by name and knew the location of a can where his ex-girlfriend kept money. Id. at 323-4. Defendant's ex-girlfriend and her sister identified the defendant. Id. at 324. The trial court instructed the jury that it must find that the defendant committed the crimes before it could find the defendant guilty of any crime, but did not give a specific identification charge.

The Cotto Court held that the trial court was not mandated to charge the jury on identification on its own motion. The Court reasoned that the trial court's failure to provide a specific identification instruction did not rise to the level of plain error because the trial court told the jury that the State must prove the defendant's presence at the crime scene and his participation in the crime beyond a reasonable doubt:

The instruction given in this case . . . and in the model charge all emphasize the same common denominator: the State bears the burden of proving beyond a reasonable doubt that the defendant is the wrongdoer. Although the court here did not use the word "identification" in charging the jury, and could have given a more detailed instruction, it nonetheless clearly explained the State's burden to the jury.

[Id. at 326-7.]

Similarly, in State v. Gaines, 377 N.J. Super. 612 (App. Div.), certif. denied, 185 N.J. 264 (2005), the defendant shot a gun into a crowd of over 200 people attending an outdoor party. Id. at 616-17. One person attending the party was struck by a bullet and killed. Id. at 616. Two girls who knew the defendant identified him. Defendant was convicted of aggravated manslaughter. Id. at 616-17. The trial court did not provide a specific identification charge or an instruction that the State must prove that the defendant participated in the crime. Nevertheless, we held that the trial court's failure to give a specific identification instruction on its own motion did not constitute plain error:

[w]hile the instruction in this case did not include a separate, explicit reference to the State's obligation to prove that defendant was the culprit, it included repeated, specific references to the State's obligation to prove beyond a reasonable doubt that defendant was the person who killed [the victim].

[Id. at 625.]

We detailed how the trial court emphasized that the State must prove that the defendant himself engaged in conduct constituting each element of aggravated manslaughter. Ibid. Although the trial court erred when it did not provide the abbreviated charge on the State's duty to prove the defendant's participation in the crime, we ruled, "[r]ead as a whole, this jury instruction did not permit the jurors to conclude that they could convict defendant if the State had not established beyond a reasonable doubt that he was the person who fired the fatal shot." Ibid. (citation omitted). We added, "[W]e are confident that the instruction given informed the jury of the State's obligation to prove that defendant was the person who killed" the victim. Id. at 625-6.

In seeking to bring the present case within the compass of Cotto, the State refers to the trial judge's instructions on the various elements of the charged offenses wherein the jury was instructed each time with respect to the State's burden of proving, for example, that "the defendant caused serious bodily injury to another . . .," that "the defendant was in the course of committing a theft," that "defendant knowingly possessed the handgun. . . ." (emphasis added). Clearly, if these standard instructions satisfied the need to focus the jury on identification, no identification charge, abbreviated or not, would ever be required. However, the State also cites the standard alibi instruction given by the judge:

Also, ladies and gentlemen of the jury, in this case the defendant, Mr. Jackson, as part of his denial of guilt contends he was not present at the time and place that the crime was allegedly committed but was somewhere else and therefore could not have possibly participated or committed the crime.

Whether a person is present at the scene of the crime to commit it, the burden of proving the defendant's 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 and so could not have committed the offense. You must determine therefore, whether the State has proven each and every 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 the evidence including the evidence of defendant's whereabouts at the time of the offense and you have a reasonable doubt as to whether he committed or participated in the crime, must find the defendant not guilty. If, however, after all of the evidence, you are convinced beyond a reasonable doubt of the defendant's presence at the scene of the crime after concluding that the State has proven each and every element of the charge beyond a reasonable doubt, then you must find the defendant guilty.

Here again, however, the State's argument would mean that where, as in this case, a defendant presents both an alibi and a misidentification defense, there is no need for an instruction on the latter if there is an instruction on the former. If so, then the model charges on identification are rendered virtually meaningless.

While the entire instruction given by the trial judge in Cotto is not clear from the opinion, Cotto, supra, 182 N.J. at 326-27, we do not believe that the instructions given in the present case sufficiently presented the identification issue to the jury, even as much (or as little) as in Cotto. As we noted at the outset, we find the exact holding of Cotto unclear. It certainly cannot be the case, as the court seemed to believe in Gaines, that merely telling the jury that it must be satisfied that the defendant committed the crimes is enough to avoid the necessity of an identification charge. Gaines, supra, 377 N.J. Super. at 625.

In any event, both Cotto, supra, 182 N.J. at 327, and Gaines, supra, 377 N.J. Super. at 626-27, ultimately concluded that the failure to give a specific identification instruction was harmless. R. 2:10-2. In Cotto, supra, 182 N.J. at 327,the Court noted the presence of "significant corroborating evidence," while in Gaines, supra, 377 N.J. Super. at 626, there were two witnesses who both knew the defendant personally and the defendant confessed to yet another witness. Thus, "[t]he strength and quality of the State's corroborative evidence rendered the deficiencies in the instruction harmless." Ibid.

None of these observations are true here. Sneed's identification was uncorroborated and questionable. The need for an identification instruction was so clear that its absence constituted plain error.

Since there must be new trial, we comment briefly on defendant's two other arguments.

The challenged testimony of Coley was more expansive than required to answer the prosecutor's question. We need not decide if it would have constituted reversible error standing alone. At retrial, the testimony should be limited to avoid any Bankston issue. See State v. Bankston, 63 N.J. 263, 268-69 (1973). Indeed, a simple "yes" would have answered the question responsively.

Similarly, at the retrial, the judge should specifically determine if the cross-examination of Ms. Bailey is appropriate under State v. Silva, 131 N.J. 438 (1993). This should be done in limine at a hearing conducted pursuant to N.J.R.E. 104.

Reversed and remanded for a new trial.

 

The Model Charge for "In-Court and Out-of-Court Identifications" was applicable here.

(continued)

(continued)

16

A-2920-04T4

July 31, 2006