STATE OF NEW JERSEY v. ALICE ROBERTS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2773-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALICE ROBERTS,
Defendant-Appellant.
____________________________________________________
Submitted May 24, 2010 - Decided September 8, 2010
Before Judges R. B. Coleman and Alvarez.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment Nos. 07-02-0258 and 07-02-0259.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Linda Mehling,
Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County
Prosecutor, attorney for respondent (Nancy
A. Hulett, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Alice Roberts appeals her conviction for third-
degree distribution of cocaine, N.J.S.A. 2C:35-5, and third-
degree conspiracy to distribute cocaine, N.J.S.A. 2C:35-5 and
N.J.S.A. 2C:5-2. She argues that the trial court improperly
admitted a tainted in-court identification and deprived her of
her right to effective assistance of counsel by preventing her
attorney from making certain comments in summation. She also
argues that the prosecutor's inflammatory arguments in summation
amounted to prosecutorial misconduct. We affirm.
On October 6, 2006, the Middlesex County Prosecutor's
Office Narcotics Task Force (Task Force) conducted an undercover
"controlled buy" operation in which Officer Suzanne Kowalski was
to purchase $100 of cocaine from a seller at the City Tavern in
Woodbridge Township. Officer Kowalski had been assigned as an
investigator with the Task Force since June of that year. Prior
to the October 6 operation, Officer Kowalski had participated in
roughly forty cases, twenty of them undercover and twenty as an
undercover backup officer.
Just before the operation, Officer Kowalski and other
members of the Task Force -- which included police officers from
Woodbridge, Rahway, New Brunswick, and Edison -- met in a nearby
motel parking lot to prepare. It was decided that Task Force
Lieutenant Irma Alvarez, the supervisor of the October 6
operation, and Officer Joshua Alexander, a Task Force
investigator, would serve as backup officers inside the bar.
Three other backup officers would remain outside in a car parked
in the City Tavern's lot.
A-2773-07T4
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The backup officers in the car -- Detective James Crowell
and Sergeant Robert Conway of the Rahway Police Department and
Detective John Roesler of the Woodbridge Police Department --
arrived at the City Tavern parking lot at approximately 6:20
p.m. When Officer Kowalski arrived at the City Tavern,
Lieutenant Alvarez and Officer Alexander were already inside,
seated at the bar next to one another. Officer Kowalski took a
seat three seats to the right of Officer Alexander and two to
the right of Lieutenant Alvarez.
At approximately 6:53 p.m., two females, one African-
American and one Caucasian, walked into the City Tavern
together. The black female approached Officer Kowalski and
introduced herself as Alice. Officer Kowalski introduced
herself as "Sue" and expressed an interest in purchasing
narcotics. Alice told Officer Kowalski to place her hand behind
her back; when she complied, Alice placed an item in her hand,
and took $100 in exchange. The item later tested positive for
cocaine. Alice then told Officer Kowalski that she was getting
more "stuff" the following week, and to call her if she wished
to purchase more. Officer Kowalski spoke to Alice face-to-face
for approximately three to four minutes. It was the first and
last time that Officer Kowalski viewed Alice in person until
A-2773-07T4
3
defendant's trial when she identified defendant as the seller
named Alice.
On October 10, 2006, Officer Kowalski prepared a report in
which she described her October 6 encounter with Alice. In that
report, Officer Kowalski described Alice as a "black female,
approximately 48 to 53 years of age, short black hair,
approximately five-eight, five-ten inches tall, wearing a black
shirt, black jacket and blue jeans." Sometime that same day,
Officer Kowalski discussed the seller's general physical
description with Detective Roesler.
On October 11, 2006, Brian Mieczkowski, another police
officer working with the Task Force, provided Kowalski with a
photograph, and explained that "he received this photo from
Investigator Roesler, it was the photo of Alice Roberts." By
that time, Officer Kowalski had been told that the full name of
the woman she knew as Alice was "Alice Roberts." Officer
Kowalski was not sure who told her the full name of the
suspected October 6 seller named Alice, but she believed that it
was approximately five minutes after the October 6 operation at
a post-operation "meet-up" with the other officers. According
to Officer Kowalski, no one told her that the picture
represented the person who sold her drugs; rather, she was asked
A-2773-07T4
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whether she could identify the person in the photograph and she
said it was the person who sold her drugs at the City Tavern.
Later the same day, Officer Kowalski made a phone call to
the telephone number she had been provided to get in touch with
Alice. When a voice answered, Officer Kowalski asked for Alice.
The person who answered the call told her to wait, and handed
the phone to someone else. A second person introduced herself
as Alice. Kowalski told Alice that she was "Sue," the "girl
from the City Tavern bar from a couple of days ago." Kowalski
then asked Alice whether they could "hook up" that night (street
parlance for buy/sell drugs). Alice responded that she would
send someone named Wendy to the parking lot of a nearby Seven-
Eleven to complete the transaction. Alice said that Wendy was a
white woman and would be driving a silver Nissan Altima.
An hour later, Kowalski went to the Seven-Eleven and met
Wendy Cromwell, who matched the description provided by Alice.
Cromwell confirmed that Alice had sent her. Kowalski gave
Cromwell $100 in exchange for a powdery rock-like substance that
later tested positive for cocaine. No arrests were made that
day.
On October 20, 2006, Officer Kowalski was provided with
another photograph at the police station, this time by Detective
A-2773-07T4
5 Roesler 1 According to Officer Kowalski, when Detective Roesler
showed her the photograph, he did not tell her that it was Alice
Roberts; he only asked her to identify whether the person in the
photograph was the person who sold her cocaine at the City
Tavern. Officer Kowalski again positively identified the person
in that photograph as the woman named Alice who sold her cocaine
at the City Tavern on October 6.
On February 6, 2007, the Middlesex County Grand Jury
returned Indictment No. 07-02-0259, charging defendant with a
single count of third-degree distribution of cocaine, N.J.S.A.
2C:35-5(a)(1) and -5(b)(3). The grand jury on the same day
returned a separate indictment, No. 07-02-0258, charging
defendant with third-degree conspiracy to distribute cocaine,
N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and N.J.S.A. 2C:5-2 (count
three). Counts one and two of Indictment No. 07-02-0258 charged
a co-defendant, Wendy Cromwell, with distribution related
offenses.
In May 2007, Cromwell was accepted into the Middlesex
County Pretrial Intervention Program. The Pretrial Intervention
Program allows low-level first time offenders to avoid
1
Kowalski initially testified that the picture was shown to her
by Investigator John Maslak, but on cross-examination by
defendant's counsel and by the court she stated that the picture
was presented by Detective Roesler.
A-2773-07T4
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prosecution by being placed on minimally-supervised probation
and participating in various rehabilitative services.
Successful completion results in dismissal of the criminal
charges against the offender. N.J.S.A. 2C:43-12.
Trial was scheduled to begin on July 11, 2007 before Judge
Frederick P. DeVesa. Before trial, on June 27, 2007, defense
counsel moved for a Wade hearing2 to exclude the out-of-court
photographic identifications of defendant made by Officer
Kowalski. On June 28, 2007, during motion arguments, Judge
DeVesa resolved that he would hold the requested Wade hearing
following jury selection, even though defendant's motion had
been filed out-of-time. On the same date, Judge DeVesa granted
the State's motion to join the two indictments pursuant to Rule
3:15-1.
On July 11, 2007, Judge DeVesa conducted the Wade hearing.
Officer Kowalski recounted the timeline of events leading up to
defendant's arrest, including the facts surrounding her out-of-
court identifications at the police station. Officer Kowalski
also made an in-court identification of defendant, who was
sitting in the court room, as the drug dealer named Alice from
the controlled buy at the City Tavern. She then viewed the same
2
See United States v. Wade,
388 U.S. 218,
87 S. Ct. 1926,
18 L. Ed. 2d 1149 (1967).
A-2773-07T4
7
pictures of defendant she had viewed earlier at the police
station, and stated there was "no doubt in her mind" that the
person depicted in both photographs was the dealer from whom she
bought cocaine at the City Tavern. Judge DeVesa ruled that
evidence of Officer Kowalski's out-of-court positive
photographic identification of defendant was inadmissible, but
ruled that she could make an in-court identification of
defendant at trial.
Trial proceedings continued on July 11, 12, 16 and 17.
During the trial, Officer Kowalski recounted the events leading
up to defendant's arrest and made a positive identification of
defendant as the seller named Alice at the City Tavern. She
also testified that she recognized the telephonic voice of Alice
as that of the seller named Alice in the City Tavern. Officer
Kowalski admitted that her observation of the seller's hair,
described in her report as short hair, diverged from those of
the other officers, but she maintained that she never saw the
back of the seller's head.
Officer Alexander also made an in-court identification of
defendant as the woman he saw make an exchange with Kowalski at
the City Tavern. Officer Alexander, who was facing the seller
during the controlled buy, testified that the seller's hair was
long, but was pulled back into long, hanging braids with a
A-2773-07T4
8
"scrunchie." Officer Alexander stated that one would not be
able to tell whether the seller's hair were short or long if
viewed from an angle directly facing her. Officer Alexander's
police report stated that the seller was approximately forty-
nine years old, between five-foot-eight and five-foot-ten inches
tall, and was wearing a black jacket with a black shirt
underneath at the City Tavern.
Lieutenant Alvarez testified that she observed a black
woman and a white woman enter the City Tavern and approach
Officer Kowalski. According to Lieutenant Alvarez, the black
woman was approximately five-foot-eight, wore a dark-colored
military-style jacket, and had "braids going back." Though
Lieutenant Alvarez did not have "face-to-face" contact with the
seller, she could "observe her face" and was able to identify
defendant in court as the same woman.
Detective Crowell, one of the backup officers conducting
outside surveillance from a parked car in the City Tavern's lot,
testified that he observed defendant walking into and out of the
City Tavern. Detective Crowell observed two women, one black
and one white, arrive in a white vehicle. It was "just getting
dark out," so the parking lot's overhead lights were on, but
Detective Crowell had a "good opportunity" to observe the faces
of the two women. Detective Crowell recognized the black woman
A-2773-07T4
9
as Alice Roberts, who he already knew from prior occasions.
According to Detective Crowell, the two women were in the bar
for "[a] few minutes" before returning to their car and driving
away. Detective Crowell identified defendant in court as the
woman he saw walking into the City Tavern whom he recognized as
Alice Roberts at the time.
Detective Roesler, another backup officer conducting
surveillance from the parked car, testified that it was "still
daylight out" and the parking lot was well-lit when defendant
arrived at the City Tavern. Detective Roesler saw two women
exit the car, one white, the other black, but he was "slumped
down" in his car seat because he is well known in Woodbridge and
did not want to jeopardize the operation. He was able to
observe that the black woman was wearing a dark-colored jacket
and had "braids in the back of her head." Detective Roesler
testified that Detective Crowell, who had a clear view of the
two women, stated "that's Alice Roberts" as the two women walked
into the bar. Detective Roesler estimated that five to six
minutes elapsed between the time the women entered the bar and
the time the two women returned to their car and drove away.
Wendy Cromwell testified at trial that she made the October
11 sale in the Seven-Eleven parking lot at defendant's request.
Cromwell said that she had been living with defendant "off-and-
A-2773-07T4
10
on" and was at defendant's home on October 11. On that date,
Cromwell answered defendant's cell phone at approximately 6:30
p.m. and spoke with a caller who asked to speak to "Alice."
Cromwell handed the phone to defendant, who, according to
Cromwell, made arrangements with the caller to sell cocaine.
Defendant then asked Cromwell to drive to the Seven-Eleven to
make the sale of cocaine to the caller. According to Cromwell,
defendant gave her the cocaine and instructed her that she was
to receive $100 in return.
On July 17, the jury returned a verdict finding defendant
guilty of distribution of cocaine and conspiracy to distribute
cocaine. On September 14, 2007, Judge DeVesa imposed the
mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), and
imposed penalties and fines, sentencing defendant to a term of
seven years incarceration with three years parole ineligibility
on the sole count in Indictment No. 07-02-0259 (third-degree
distribution of cocaine), and a concurrent term of five years
incarceration with two years parole ineligibility on count three
of Indictment No. 07-02-0258 (third-degree conspiracy to
distribute cocaine).
On January 31, 2008, defendant filed the present appeal.
The tardiness of the filing was due to attorney neglect, so
defendant was permitted to file as within time.
A-2773-07T4
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On appeal, defendant's raises the following arguments:
POINT I: BY SHOWING A SINGLE PHOTOGRAPH OF
THE DEFENDANT TO THE UNDERCOVER OFFICER, AND
TELLING HER THAT THE DEFENDANT WAS THE
TARGET OF THE POLICE UNDERCOVER OPERATION,
THE POLICE IRREPARABLY TAINTED THE OFFICER'S
IN-COURT IDENTIFICATION OF DEFENDANT AS THE
PERSON WHO SOLD DRUGS TO HER.
POINT II: THE TRIAL COURT'S ERRONEOUS
REFUSAL TO ALLOW DEFENSE COUNSEL TO ARGUE IN
SUMMATION THAT THE POLICE DID NOT CONDUCT A
LINEUP OR PHOTO ARRAY IDENTIFICATION
PROCEDURE DEPRIVED DEFENDANT OF HIS [sic]
SIXTH AMENDMENT RIGHT TO EFFECTIVE COUNSEL.
POINT III: THE PROSECUTOR OVERSTEPPED THE
BOUNDS OF PROPRIETY AND DEPRIVED DEFENDANT
OF HIS [sic] CONSTITUTIONAL RIGHT TO A FAIR
TRIAL WHEN IN SUMMATION HE BOLSTERED THE
CREDIBILITY OF THE POLICE WITNESSES AND
SOUGHT TO INFLAME THE JURY BY REFERRING TO
POLICE EFFORTS IN "GETTING COCAINE OFF THE
STREETS." (Not raised below).
I.
First, we address whether the trial court properly admitted
Officer Kowalski's in-court identification of defendant as the
cocaine dealer from the City Tavern on October 6. We are
convinced that the trial court's admission of the in-court
identification was not "clearly capable of producing an unjust
result." R. 2:10-2.
Principles of due process prohibit the use of
identification evidence gathered by means "so impermissibly
suggestive as to give rise to a very substantial likelihood of
A-2773-07T4
12
irreparable misidentification." Simmons v. United States,
390 U.S. 377, 384,
88 S. Ct. 967, 971,
19 L. Ed. 2d 1247, 1253
(1968). New Jersey has "consistently followed the United States
Supreme Court's analysis in determining the admissibility of
out-of-court and in-court identifications." State v. Herrera,
187 N.J. 493, 504 (2006); accord State v. Adams,
194 N.J. 186,
201 (2008). Thus, the admissibility of identification evidence
in New Jersey courts is governed by the two-pronged test of
Manson v. Brathwaite,
432 U.S. 98, 110,
97 S. Ct. 2243, 2251,
53 L. Ed. 2d 140, 151 (1977). State v. Madison,
109 N.J. 223, 232
(1988).
Under the Manson two-pronged test, the court must first
"ascertain whether the identification was impermissibly
suggestive[.]" Herrera, supra,
187 N.J. at 503. The first
prong asks "'whether the choice made by the witness represents
his own independent recollection or whether it in fact resulted
from the suggestive words or conduct of a law enforcement
Adams, supra,
194 N.J. at 203 (quoting State v.
officer.'"
Farrow,
61 N.J. 434, 451 (1972)). Under the second prong, the
court determines "whether the impermissibly suggestive procedure
was nevertheless reliable by considering the totality of the
circumstances and weighing the suggestive nature of the
identification against the reliability of the identification."
A-2773-07T4
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Ibid. (quoting State v. Romero,
191 N.J. 59, 76 (2007)).
Reliability is the "linchpin" of this inquiry. Manson, supra,
432 U.S. at 114,
97 S. Ct. at 2253,
53 L. Ed. 2d at 154; Adams,
supra,
194 N.J. at 204.
Five factors set forth by the Court in Manson guide the
trial court's discretion in determining reliability: (1) the
witness's opportunity to observe the perpetrator at the time of
the crime; (2) the degree to which the witness was paying
attention to the perpetrator; (3) the accuracy of the witness's
past descriptions of the perpetrator; (4) the witness's
certainty in identifying defendant as the perpetrator at the
time of the identification; (5) the amount of time elapsed
between the crime and the identification. Adams, supra,
194 N.J. at 204. "If after the evaluation of 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.
An in-court identification may be admissible even if the
witness was subjected to an out-of-court identification
procedure excluded as impermissibly suggestive and
insufficiently reliable. Madison, supra,
109 N.J. at 242. If
pretrial out-of-court identification procedures have been deemed
impermissibly suggestive, the State must prove by clear and
A-2773-07T4
14
convincing evidence that a subsequent in-court identification
has a "source independent of the police-conducted identification
Id. at 245. The general rule is that
procedures."
"[i]f . . . the out-of-court procedures were
so impermissibly suggestive as to fix in the
victim's mind an identity probably based
upon photographs rather than upon an
independent mental picture of the person
gained from observations of him at the time
of commission of the crime, the in-court
identification should be excluded."
[Id. at 242-43 (quoting State v. Thompson,
59 N.J. 396, 418-19 (1971)) (second
alteration in original).]
Courts are to judge the independent reliability of the in-court
identification by applying the five Manson factors. Id. at 243.
"[A] trial court's findings at the hearing on the
admissibility of identification evidence are 'entitled to very
considerable weight.'" Adams, supra,
194 N.J. at 203 (quoting
Farrow, supra,
61 N.J. at 451). Thus, the trial court's
findings that on the reliability of identification evidence
"should not be disturbed if there is sufficient credible
evidence in the record to support the findings." Ibid.
Furthermore error or omission by the trial court will be
disregarded by an appellate court unless it was "clearly capable
of producing an unjust result[.]" R. 2:10-2. Stated in terms
of its effect in a jury trial, the magnitude of the error must
be "sufficient to raise a reasonable doubt as to whether the
A-2773-07T4
15
error led the jury to a result it otherwise might not have
reached." State v. Macon,
57 N.J. 325, 336 (1971).
In the present case, the trial court found that the out-of-
court photographic showups of October 11 and 20 were
impermissibly suggestive. The court did so upon a finding that
Officer Kowalski, prior to viewing the October 11 photograph,
was told that the person in the photograph was Alice Roberts.
By that point, Officer Kowalski had already been told that other
officers had positively identified the seller in the October 6
operation as "Alice Roberts." The court did not specifically
address the circumstances of the October 20 photographic
identification, but appears to have excluded the October 20
identification at least in part because it was an older
photograph of lower quality.
The court noted that the presentation of defendant's
photograph with a simultaneous verbal cue that the picture was
of "Alice Roberts" was highly suggestive -- or "almost
directive." The court concluded that "to allow testimony
regarding this so-called photographic identification when it
really was a confirmation based on the directions of the
officers I think would be unfair." That ruling has not been
challenged by either party on appeal. The only contested issue
is whether the trial court erred in determining that the out-of-
A-2773-07T4
16
court identification procedure did not taint Officer Kowalski's
subsequent in-court identification.
To determine whether Officer Kowalski's subsequent in-court
identification was so tainted by the impermissible photographic
procedure so as to create a "substantial likelihood of . . .
irreparable misidentification," the court addressed the Manson
factors.
Addressing the first and second factors, the trial court
found that although Officer Kowalski did not have "many many
years of experience," she was a professional investigator "well
trained" in the "field of identification." The court found that
Officer Kowalski had a good opportunity to observe the person
who sold her drugs because it was a "face-to-face transaction,
not under circumstances involving violence or danger[,]" and
where the two actors were only "feet apart" in an adequately lit
area.
Addressing the third factor, the trial court found that
Officer Kowalski was able to fairly and accurately describe the
defendant in her police report prior to viewing the suggestive
photograph. Apparently referring to the discrepancy in the
description of the length and style of the perpetrator's hair,
the court noted that the physical description in the police
A-2773-07T4
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report was "not entirely accurate, but it fits [defendant]
pretty well."
Addressing the fourth factor, the trial court found that
Officer Kowalksi's hearing testimony, in which she expressed
one-hundred percent certainty that defendant was the person who
sold her drugs on October 6, was credible and truthful. The
trial court did not address the fifth factor, under which the
court is to factor into its reliability determination the amount
of time between that elapsed between the crime and the
identification. Based on the foregoing, the trial court
permitted Officer Kowalski to identify defendant in court as the
dealer who sold her cocaine on October 6 at the City Tavern.
On appeal, defendant first argues that "[t]he judge ignored
critical aspects of Kowalski's testimony that cast doubt on her
ability to accurately identify the seller." Defendant contends
that the trial court's findings that Officer Kowalski was well
trained in identification is contradicted by her relative
inexperience; that the trial court's finding that Officer
Kowalski had a good opportunity to view defendant is
contradicted by the fact that the bar was "dim," the fact that
Officer Kowalski admitted to being afraid, and the fact that the
four-minute meeting was too brief; and that the trial court's
finding that Officer Kowalski previously provided an accurate
A-2773-07T4
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description is contradicted by the fact that aspects of the
description in her police report conflicted with descriptions
from other officers.
Defendant's first argument essentially urges us to make our
own finding of reliability by applying the Manson factors to the
facts in the record in a different manner than the trial court.
We cannot conclude that the asserted errors in the trial court's
reasoning demonstrate an absence of credible evidence in the
record to support the trial court's finding of independent
reliability to overcome the suggestiveness of the out-of-court
identifications. Rather, it was appropriate for the trial court
to place the most emphasis on the fact that Officer Kowalski was
a trained investigator in a face-to-face meeting several minutes
in length with a person she knew she would later have to
identify. Given our limited standard of review, the trial
court's reliability finding and decision to admit Officer
Kowalski's in-court identification was within the bounds of the
court's discretion. Hisenaj v. Kuehner,
194 N.J. 6, 12 (2008).
The trial court's findings are "'entitled to considerable weight
and should not be disturbed if supported by sufficient credible
evidence,'" Adams, supra,
194 N.J. at 203 (quoting Farrow,
supra,
61 N.J. at 451), and should not be disturbed if supported
by sufficient credible evidence.
A-2773-07T4
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Defendant's second and most extensive argument attacks the
trial court's partial reliance on the fourth factor -- the
witness's level of certainty -- primarily by citing to
psychological and legal journals and a case decided by the
Georgia Supreme Court, Brodes v. State,
614 S.E.2d 766, 771 (Ga.
2005) (noting that witness certainty had been removed from a
list of reliability considerations in that state's jury
instructions). The cited authorities do not specifically
address witness certainty in the context of our State's Manson
test and, in any event, are not binding on this tribunal. In
support of the same argument, defendant also cites Romero to
underscore that the New Jersey Supreme Court added language to
the Model Jury Charge instructing jurors that when analyzing
eyewitness testimony, "a witness's level of confidence, standing
alone, may not be an indication of the reliability of the
191 N.J. at 76 (emphasis added).
identification." Supra,
Clearly, the quoted language from Romero does not address
test. It
witness confidence in the context of the Manson
applies where the witness's confidence in his own identification
is the only indicator of reliability (not the case here) and
where the jury is making a reliability determination (also not
the case). Although the Supreme Court has signaled a
willingness to reassess the Manson factors, see State v.
A-2773-07T4
20
Henderson, N.J. Supreme Court Order No. A-8-05, 2
009 N.J. LEXIS
45 (Feb. 26, 2009), it has not yet done so. Accordingly, we
reject defendant's second argument.
Third, defendant argues that the trial court inserted
inappropriate criteria into the five-factor "totality of the
circumstances" test by considering the circumstances of the
and not "the totality of the circumstances
whole case,
surrounding the identification procedure," Herrera, supra,
187 N.J. at 506 (emphasis added). Here, defendant is correct: the
trial court inappropriately based its determination of
reliability in part on "coincidenc[es]" that it felt
"reinforce[d] the identification." For example, the trial court
found the identification was "reinforced" by the fact that the
"other officers [knew] Alice Roberts." The trial court also
found that the identification was reinforced by the fact that a
subsequent call to Alice Roberts's cell phone number reached a
woman named Alice who acknowledged that she had sold Officer
The five-factor Manson test for
Kowalski cocaine on October 6.
reliability is limited to the circumstances surrounding the
identification, ibid., and the trial court considered facts
outside Officer Kowalski's identification. The trial court
erred by doing so.
A-2773-07T4
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The critical question, however, is whether the trial
court's error was "clearly capable of producing an unjust
2:10-2. It is clear that the trial court's
result." R.
consideration of circumstances beyond Officer Kowalski's
identification was supplementary to its otherwise appropriate
application of the five-factor Manson test for reliability and
was not the determinative inquiry. As noted above, the fact
that Officer Kowalski was a trained investigator who viewed
defendant for several minutes in favorable visual conditions
with the purpose of later identifying her amply supports the
trial court's finding that her later identification was
reliable.
We further note that even if Officer Kowalski's in-court
identification was improperly admitted by the trial court, its
admission was harmless. More than enough independent evidence
was adduced at trial implicating defendant as the cocaine dealer
named "Alice" at the City Tavern on October 6. As observed by
the State, defendant was visually identified as the October 6
cocaine dealer in court by three other testifying police
officers. Officer Alexander and Lieutenant Alvarez were seated
within feet of Officer Kowalski in the City Tavern and each
identified defendant as the seller. Detective Crowell, who
already knew defendant from previous encounters, testified that
A-2773-07T4
22
he saw her walk into the City Tavern just before the drug deal
took place and leave about five minutes later. These
identifications were not challenged on appeal.3
Beyond the other identification testimony and the
coincidence of defendant and the October 6 drug dealer sharing
the same first name, there is the further coincidence
(established by way of the testimony of Officer Kowalski and
Wendy Cromwell) that a telephone call on October 11 reached a
woman named Alice, who acknowledged her role in the October 6
sale. According to Officer Kowalski, the voice she heard over
the telephone was the same as that of the woman who sold her
cocaine on October 6. Thus, even if one assumes that Officer
Kowalski's identification testimony were improperly admitted, it
would not have "led the jury to a result it otherwise might not
have reached." Macon, supra,
57 N.J. at 336.
II.
Defendant argues that she was denied her Sixth Amendment
right of effective assistance of counsel when the trial court
3
Defense counsel moved to challenge the in-court identifications
of defendant by all the other testifying officers after jury
selection and the Wade hearing had concluded. The trial court
denied the motion as made out-of-time. The trial court also
relied on the fact that, unlike Kowalski's out-of-court
identification, there was no evidence that the expected in-court
identifications of the other officers might have been tainted by
suggestions from others. Defendant has not appealed that
ruling.
A-2773-07T4
23
prevented defense counsel from commenting in his closing
argument on the failure of the police to identify defendant by
using a photographic array procedure. We disagree.
In New Jersey, a defendant's right to marshal a meaningful
closing argument in his defense is constitutionally protected.
State v. Briggs,
349 N.J. Super. 496, 500-01 (App. Div. 2002).
In Herring v. New York, the Supreme Court of the United States
recognized that "a total denial of the opportunity for final
argument in a criminal trial is a denial of the basic right of
the accused to make his defense."
422 U.S. 853, 859,
95 S. Ct. 2550, 2554,
45 L. Ed. 2d 593, 598 (1997). In doing so, however,
the Court also recognized the "broad discretion" of the trial
court in controlling the scope of summations. Id. at 862,
95 S. Ct. at 2555,
45 L. Ed. 2d at 600. The Court stated that
[t]he presiding judge must be and is given
great latitude in controlling the duration
and limiting the scope of closing
summations. He may limit counsel to a
reasonable time and may terminate argument
when continuation would be repetitive or
redundant. He may ensure that argument does
not stray unduly from the mark, or otherwise
impede the fair and orderly conduct of the
trial. In all these respects he must have
broad discretion.
[Ibid.]
In light of the fundamental importance of closing argument
in criminal prosecutions, we have held that the failure of the
A-2773-07T4
24
trial court to allow defense counsel to explain in summations
that defendant possessed a right to remain silent amounted to
State v. Nittolo
194 N.J. Super. 344, 347-48
reversible error.
(App. Div. 1984). Noting that the New Jersey Supreme Court had
previously deemed a jury instruction regarding the right to
remain silent "essential" to protect the right, we concluded
that the same considerations demand that a trial court may not
substantially bar a closing argument that explains the right to
remain silent. Id. at 348.
More recently, in State v. Loyal, we found reversible error
in the trial court's inclusion of a curative instruction that
effectively neutralized a defense attorney's closing argument,
which had asserted that the State's unexplained failure to
present fingerprint evidence linking the defendant to the murder
weapon gave rise to a reasonable doubt that the defendant had
386 N.J. Super. 162, 167-68, 175 (App.
committed a murder.
Div.), certif. denied,
188 N.J. 356 (2006). Noting that the
issue was one of first impression in New Jersey, the court chose
to adopt a rule from a case decided in the Maryland Court of
Appeals. Id. at 173 (citing Eley v. State,
419 A.2d 384, 386
(Md. 1980) ("[W]here there is unexplained silence concerning a
routine and reliable method of identification especially in a
case where the identification testimony is at least subject to
A-2773-07T4
25
some question, it is within the scope of permissible argument to
comment on this gap in the proof offered.")).
The Loyal panel, however, recognized that "the right to
comment on fingerprint evidence is, of course, not without
limits." Supra,
386 N.J. Super. at 173. In particular, the
court noted that comments in summation must be based on evidence
deduced at trial: "[W]ithout evidence to support the
contention, defendant cannot argue that the failure to obtain
fingerprints did not comply with good police practice, or that
if fingerprints had been obtained, they would have exculpated
defendant." Ibid. (emphasis added).
Indeed, it is well established that a trial court's
discretion to control summations includes the ability to limit
defense counsel "to fair comment on the evidence before the
jury." State v. Reynolds,
41 N.J. 163, 176 (1963), cert.
denied,
377 U.S. 1000,
84 S. Ct. 1930,
12 L. Ed. 2d 1050. It
has been said that "[t]he scope of defendant's summation
argument must not exceed the 'four corners of the evidence.'"
State v. Loftin,
146 N.J. 295, 347 (1996) (quoting Reynolds,
supra,
41 N.J. at 176). "Thus, it is proper for a trial court
to preclude references in closing arguments to matters that have
State v. Jones,
308 N.J. Super. 174,
no basis in the evidence."
185 (App. Div.), certif. denied,
156 N.J. 380 (1998).
A-2773-07T4
26
In the proceeding below, the purportedly erroneous
sustained objection occurred in the following context. While
arguing that the police investigation that resulted in
defendant's arrest was inadequate, defense counsel stated that
the police "didn't care anything about a photo array. Photo
arrays are usually done. Lots of pictures are placed before
you." When the State objected, the following exchange took
place at sidebar between the court and defense counsel:
THE COURT [to defense counsel]: [A]s
you know, I precluded any testimony
regarding photographic identification of the
defendant, so I really don't think it's fair
for you now since I did this at your request
to now, you know, comment about the lack of
a photographic array.
[DEFENSE COUNSEL]: Okay. But you precluded
my one picture and not of a photographic
array particularly. No. I'll move on.
THE COURT: Do you think that's a fair
comment or we are -- you know, are we taking
advantage of the Court's ruling here?
[DEFENSE COUNSEL]: I'll move on.
Defendant argues that pursuant to the logic of Herring,
Nittolo, and Loyal, it was reversible error for the trial court
to have prohibited defense counsel from comment on the absence
of a photographic array procedure. We disagree. The trial
court properly excluded defense counsel's intended closing
A-2773-07T4
27
arguments because they went beyond the scope of the evidence
adduced at trial.
When the State objected, defense counsel was in the process
of explaining to the jury that it is good police practice to
conduct a photographic array. No evidence was ever adduced at
trial to establish how or when police typically utilize a
photographic array, or what harm might arise where there is a
failure to utilize the technique. It would have been improper
to have allowed defense counsel to testify as to the merits of
such procedures in his closing argument. Jones, supra,
308 N.J.
Super. at 185. We therefore find that the trial court's ruling
was proper and does not amount to an abuse of discretion.
III.
Defendant argues that the prosecutor's comments in
summation improperly bolstered the credibility of police
witnesses by stating that they would not lie to a jury, and
sought to inflame the passions of the jury by stating that the
police were "getting cocaine off the street." Though we find
that some of the prosecutor's remarks were improper, we find
that they were not capable of producing an unjust result and
therefore do not warrant reversal.
Prosecutors are "expected to make vigorous and forceful
closing arguments to juries" and are "afforded considerable
A-2773-07T4
28
leeway in closing arguments as long as their comments are
reasonably related to the scope of the evidence presented."
158 N.J. 76, 82 (1999); accord State v.
State v. Frost,
Bradshaw,
195 N.J. 493, 510 (2008). However, the primary
obligation of a prosecutor is not to win a conviction, but
rather to see that justice is done. State v. R.B.,
183 N.J.
308, 332 (2005). Prosecutors are therefore bound to "'refrain
from improper methods calculated to produce a wrongful
Id. at 332 (quoting Frost, supra, 158 N.J. at
conviction[.]'"
83).
Since no objections were made below regarding the
prosecutor's summation, the plain error standard governs. Thus,
defendant must show that the errors are "clearly capable of
producing an unjust result." R. 2:10-2. The possibility of
producing an unjust result must be "sufficient to raise a
reasonable doubt as to whether the error led the jury to a
Macon, supra, 47
result it otherwise might not have reached."
N.J. at 336.
The statements challenged by defendant occurred in the
following context. During defendant's closing argument, defense
counsel challenged the truthfulness of the testifying police
officers without explicitly stating that the police officers
were not telling the truth:
A-2773-07T4
29
What we saw in the courtroom these last
couple of days I think it absolutely
incredible, unbelievable to me observing it.
Police officer after police officer after
police officer came in here and identified
[defendant].
You're all here to evaluate that testimony
of those police officers and we've all heard
-- we've all heard about them -- police
officers filling in blanks and trying to get
a conviction when all the work wasn't
necessarily done. I would submit to you all
that each of the police officers that came
in here were fillers, fillers, trying to
fill what wasn't done when it was supposed
to be done.
Defense counsel also argued that the police officers were merely
"parad[ing] a story that sounds good."
In response, the prosecutor told the jury in summation that
in order to acquit defendant, they would have to believe that
five people came before you and lied,
intentionally lied . . . as to this
defendant being the person who sold the
cocaine on October 6th and again on October
11th. Bear in mind that while most of us
dinner, relaxing,
are at home eating
watching the news, there are cops out on the
street making buys, getting cocaine off the
You heard this was seven o'clock.
street.
By the time they wrapped up it was late.
We're relaxing and they're working.
Okay?
Are they going to come before you and lie?
No.
Defense counsel did not object to the prosecutor's comments when
they were made.
A-2773-07T4
30
Our first inquiry is whether the prosecutor's remarks were
improper. We find that they were improper. In R.B., the
prosecutor argued that because a detective had been assigned to
a unit for only two months, he had no reason to lie. Id. at
331. The Court squarely held that "it is improper for a
prosecutor to contend in summation that the police had no motive
Id. at 331-32. Another panel of this court very
to lie."
recently addressed the same issue and held that a prosecutor's
statement that an officer had "no stake in the outcome of the
proceeding" was improper under the rule enunciated in R.B.
State v. Murphy,
412 N.J. Super 553, 560 (2010). Because the
prosecutor's comment in the case at bar stated that police, due
to their dedication to the eradication of crime would not "come
before you and lie" it is at least as inappropriate as the
relatively innocuous comments deemed improper in R.B. and Murphy
and is therefore improper. But a finding of impropriety does
not end our inquiry. Ibid.
To warrant reversal, the appellate court must find that the
improper comment denied the defendant a fair trial, considering
the context in which it was made, ibid., and the trial record as
a whole, State v. Nelson,
173 N.J. 417, 472 (2002). To
determine whether the alleged prosecutorial misconduct requires
a reversal of a conviction, however, the ultimate question is
A-2773-07T4
31
whether "the prosecutor's misconduct was so egregious that it
deprived the defendant of a fair trial." Frost, supra,
158 N.J.
at 83. The court must "evaluate the prosecutor's comments in
the context of the overall 'tenor of the trial' and 'degree of
responsiveness of both counsel and the court to improprieties
when they occurred[.]'" Murphy, supra,
412 N.J. Super at 560
(quoting R.B., supra,
183 N.J. at 332-33).
As noted by the Court in R.B., a three-part inquiry governs
whether prosecutor's misconduct was sufficiently egregious to
deprive defendant of a fair trial:
Specifically, an appellate court must
consider (1) whether defense counsel made
timely and proper objections to the improper
the remarks were
remarks; (2) whether
withdrawn promptly; and (3) whether the
court ordered the remarks stricken from the
record and instructed the jury to disregard
them. Generally, if no objection was made
to the improper remarks, the remarks will
not be deemed prejudicial. The failure to
object suggests that defense counsel did not
believe the remarks were prejudicial at the
time they were made. The failure to object
also deprives the court of an opportunity to
take curative action.
[R.B., supra,
183 N.J. at 333 (quoting
Frost, supra,
158 N.J. at 83-84) (emphasis
added).]
Additionally, an otherwise improper remark may not
constitute reversible error if made in direct response to an
State v. Engel,
249 N.J. Super. 336,
attack by defense counsel.
A-2773-07T4
32
379 (App Div.), certif. denied,
130 N.J. 393 (1991). "A
prosecutor is not forced to idly sit as a defense attorney
attacks the credibility of the State's witnesses; a response is
permitted." State v. Hawk,
327 N.J. Super. 276, 284 (App. Div.
2000). We have applied that principle to hold that an otherwise
improper prosecutorial summation arguing that the police had no
motive to lie was not clearly capable of producing an unjust
result because it was made in response to remarks suggesting
State v. Vasquez, 374 N.J. Super.
that the police were lying.
252, 261-62 (App. Div. 2005).
Defendant argues that the statement was prejudicial because
the same type of comment constituted cause for reversal in
Frost, supra,
158 N.J. at 85, and State v. Goode,
278 N.J.
Super. 85, 90 (App. Div. 1994). We find those two cases
distinguishable.
In Frost, the Court found the prosecutor engaged in three
separate inappropriate lines of argument -- one line of argument
suggesting that the police officers would not lie because of the
magnitude of the potential charges against them for lying.
Frost, supra,
158 N.J. at 85-87. The Court held that a single
curative instruction was insufficient to overcome the cumulative
at 87.
effect of the multiple improper remarks. Id.
Significantly, in R.B., the Court cautioned that Frost should
A-2773-07T4
33
not be read to stand for the proposition that a single
prosecutorial comment that the police had no motive to lie
183 N.J. at 331 n.4.
constitutes reversible error. Supra,
According to the Court, Frost is better understood as a case in
which improper bolstering of police witnesses was "part of a
much larger mosaic of cumulative error warranting reversal."
No such "larger mosaic" exists in the present case.
Ibid.
Like the Frost decision, Goode is premised on a finding of
"repeated improper comments" within a prosecutor's summation and
throughout trial. Supra,
278 N.J. Super. at 92. In Frost, not
only did the prosecutor state that it "would be a crime in
addition to the crimes that occurred into this incident" not to
believe the testifying detectives, who "had . . . nothing to
gain by lying," id. at 91, he also improperly told the jurors
that a guilty verdict was their "chance to make a difference" in
the war on drugs, id. at 89, and incorrectly advised the jury
that they should consider the defendant's prior crimes for more
than assessing his credibility, id. at 91.
We are convinced that the comment was not prejudicial for
several other reasons. First, we find it significant that the
defense did not object to the comment when made. "Generally, if
no objection was made to the improper remarks, the remarks will
not be deemed prejudicial." Frost, supra,
158 N.J. at 83.
A-2773-07T4
34
Second, pursuant to Vasquez, the prejudice of a comment
bolstering police officer testimony may be lessened if made in
direct response to defense counsel's attack on the truthfulness
of the police. Supra,
374 N.J. Super. at 261-62. In Vasquez,
we held that an otherwise improper prosecutorial comment arguing
that the police had no motive to lie was not clearly capable of
producing an unjust result because it was made in response to
remarks suggesting that the police were lying. Ibid. Third,
the inappropriate comment bolstering the credibility of the
police officers was but one comment within an otherwise
restrained and fair closing argument. Unlike the closing
and Goode, the
arguments that led to reversals in Frost
prosecutor's summation in the present case did not contain
multiple improper remarks.
Considering the prosecutor's summation as a whole and the
entire trial record, defendant has not shown that the
prosecutor's single improper remark raises a "reasonable doubt
as to whether the error led the jury to a result it otherwise
might not have reached." Macon, supra,
47 N.J. at 336.
Finally, we reject defendant's additional argument that the
prosecutor's closing argument was an improper "call to arms"
meant to inflame the passions of the jury. A prosecutor may not
make "'inflammatory and highly emotional' appeals which have the
A-2773-07T4
35
capacity to defer the jury from a fair consideration of the
evidence of guilt." State v. W.L.,
292 N.J. Super. 100, 111
(App. Div. 1996) (quoting State v. Marshall,
123 N.J. 1, 161
(1991), cert. denied,
507 U.S. 929,
113 S. Ct. 1306,
122 L. Ed. 2d 694 (1993)). Prosecutors are prohibited from making
what are known as "call to arms" arguments, which "urg[e] juries
to return convictions in order to protect the community and send
a message to the criminals[.]" State v. Morais,
359 N.J. Super.
123, 132 (App. Div.), certif. denied,
177 N.J. 572 (2003); see
also Hawk, supra,
327 N.J. Super. at 282. Such comments are
prohibited because they "divert jurors' attention from the facts
of the case, and promote a sense of partisanship with the jury
that is incompatible with the jury's function," State v. Neal,
361 N.J. Super. 522, 537 (App. Div. 2003) (citations omitted).
Defendant cites State v. Holmes,
255 N.J. Super. 248, 249
(App. Div. 1992), and Goode, supra,
278 N.J. Super. at 89-90 in
support of her contention that the prosecutor's reference to
police working late "getting cocaine off the streets" was an
impermissible call to arms. In Holmes, the prosecutor was
faulted for stating the following in his opening statement:
Who has the interest, who has motive, who
would come before you and lie? That will
probably be what you will have to decide and
I ask that you observe the witnesses as they
testify for you and use your common sense.
You all understand the particular drug
A-2773-07T4
36
problem that we have in this country,
particularly Newark and I submit to you,
that the police officers don't have to make
up facts.
[Supra, 255 N.J. Super. at 249 (emphasis
added).]
Then, in his closing statement, the prosecutor in Holmes added:
"[w]ith the war on drugs, he [the police witness] didn't have to
come before you and fabricate these type [sic] of cases. I
submit to you he came before you and told you the truth." Id.
at 249-50 (alterations in original). The Holmes court concluded
that the prosecutor's reference to the particular drug problem
in Newark and "the war on drugs" were "entirely irrelevant to
the police witnesses' credibility" and that "the prosecutor's
references were only a thinly-veiled attempt to inflame the
jurors by identifying defendant with matters of public notoriety
as to which no evidence was or could have been ever [sic]
Id. at 251.
introduced."
In Goode, the prosecutor told the jury the following:
When we started this case . . . I said to
you you're going to be able to make a
difference in your community. This is one
situation where you can finally do something
and say yes, drugs exist. I hate them
. . . [.] But this time I can do something.
I can make a difference. To overlook the
facts in this case and disregard the
testimony of Detective Sumter and Detective
Mejias would be a crime in addition to the
crimes that occurred in this incident. They
A-2773-07T4
37
testified truthfully, forthrightly and had
no axe to grind, nothing to gain by lying.
[Supra,
278 N.J. Super. at 90.]
The Goode court reversed the defendant's conviction in part
because of the prosecutor's statement to jurors that by
convicting the defendant, they would be making a positive
difference in their communities. Ibid. And as noted in the
previous section, the Goode court premised its reversal on
several errors, including that the prosecutor stated that to
disbelieve the police "would be a crime," that the police had no
motive to lie, that a prior offense committed by the defendant
could be used as evidence of guilt, and that the jury should
consider the fact that a search warrant was issued as evidence
of guilt. Id. at 90-91.
When considered in context, the prosecutor's statement in
the present case did not amount to an impermissible call to
arms. The prosecutor never made reference to a "war on drugs"
or a drug epidemic, like the prosecutor in Holmes, supra,
255 N.J. Super. at 249. Though the reference to the work habits of
the police officers was an impermissible attempt to bolster the
credibility of the officers, it was not intended to appeal to
the jurors' sense of duty to remedy a larger societal problem or
scourge in their own community. The prosecutor's comments did
A-2773-07T4
38
not even implicitly encourage the jury to consider how their
decision would affect the world outside the courtroom.
Affirmed.
A-2773-07T4
39
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