STATE OF NEW JERSEY v. CHRISTOPHER EVANS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1530-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER EVANS,

Defendant-Appellant.

_________________________________

Submitted June 6, 2011 - Decided June 24, 2011

Before Judges Lisa, Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2175.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel on the brief).

PER CURIAM

Defendant Christopher Evans appeals from his conviction on four counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1. The jury acquitted him of two weapons charges, and the State withdrew a felony murder charge after the jury deadlocked on that count.1 Defendant also appeals from the aggregate sentence of thirty years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On this appeal, defendant raises the following issues:

POINT I: EVANS'S MOTION FOR A WADE HEARING REGARDING THE OUT-OF-COURT IDENTIFICATIONS SHOULD HAVE BEEN GRANTED BECAUSE THE IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE. (Partially Raised Below)

A. Failure To Utilize An Independent Officer To Conduct The Photographic Identification Procedure Was A Material Violation Of Section IA Of The Guidelines.

B. Failure To Record The Necessary Details Of The Photographic Identification Procedure Was A Material Violation Of Section II Of The Guidelines As Well As Contrary to State v. Delgado.

POINT II: EVANS'S RIGHT TO CONFRONTATION AND THE RULES OF EVIDENCE WERE VIOLATED BY THE TRIAL COURT'S ADMISSION OF CELLULAR TELEPHONE REPORTS INTO EVIDENCE. U.S. CONST., AMENDS VI, XIV; N.J. CONST. (1947), ART. 1, PARA. 10. (Partially Raised Below)

A. The Evidence Does Not Satisfy The "Business Record" Exception To The General Ban On Hearsay.

B. Admission Of The Evidence Violated Evans's Rights To Confrontation.

POINT III: EVANS'S RIGHTS TO PROPER DISCOVERY, DUE PROCESS OF LAW, AND THE ABILITY TO PREPARE A DEFENSE UNDER U.S. CONST., AMENDS VI, XIV WERE VIOLATED WHEN DETECTIVE C. SMITH DESTROYED HIS NOTES ONE MONTH BEFORE THE TRIAL.

POINT IV: REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN POINTS I THROUGH III, SUPRA.

point V: THE TRIAL COURT'S IMPOSITION OF AN AGGREGATE THIRTY YEAR SENTENCE OF IMPRISONMENT, SUBJECT TO THE NO EARLY RELEASE ACT, WAS EXCESSIVE AND UNDULY PUNITIVE, THEREFORE IT MUST BE REDUCED.

Finding no merit in any of these contentions, we affirm the conviction and the sentence.

I

We will discuss the pertinent facts in greater detail when we address defendant's appellate issues, but this is a brief summary of what happened. The case involved the fatal shooting of Sheldon Kelly on May 6, 2005, during an armed robbery of Kelly and three companions in the foyer of an apartment building in Irvington. A fourth companion fled from the foyer after the perpetrators arrived but before they began the robbery. None of the robbers wore masks, and all of the victims saw their faces at close quarters.

The three robbers stole several cell phones, money, and other personal items. After they completed the robbery, to which the victims offered no resistance, one of the robbers shot Kelly. Defendant became a suspect in the crime when the police traced calls made from one of the stolen cell phones to a telephone number on which the service provider listed defendant as a user.

Once they suspected that defendant might have some knowledge about or involvement in the crime, detectives showed the three robbery victims a photo array that included defendant's photograph. They each identified defendant as being one of the three intruders who entered the foyer and robbed them. Defendant was then arrested in Newark. He waived his Miranda2 rights and confessed to participating in the robbery, although he denied any part in the shooting. At his trial, the State conceded that defendant was not the shooter, although the State contended that he was guilty of felony murder based on his participation in the armed robbery that resulted in the shooting. At the trial, the four surviving victims, including the one who fled after getting a look at the robbers, all identified defendant as one of the perpetrators.

II

We begin our legal discussion by addressing the identification issue. At a pre-trial hearing on February 21, 2007, counsel and the trial judge discussed on the record the possible need for a testimonial Wade3 hearing. Defense counsel raised one issue, relating to the fact that the surviving victims were shown photo arrays on more than one occasion. In May 2005, shortly after the shooting, the Irvington police showed the victims a photo array and none of the victims were able to identify anyone in the photographs. Several months later, they were shown another array that included defendant's photo, and they identified him. Defense counsel argued that, if the May array included defendant's picture, the victims may have identified him during the later session only because his picture looked vaguely familiar from the first session and not because they actually remembered him from the night of the robbery.

In response, the prosecutor represented to the court that the first array did not include defendant's photograph, because it only included suspects who had previously been arrested in Irvington, a category that did not include defendant. The prosecutor offered to produce a police witness who could confirm that information. Defense counsel agreed that such testimony could resolve the issue he had raised.4 The judge then stated, "All right. So with the exception of that particular witness limited to that topic which we'll do tomorrow, the Wade issue is done." The court later clarified that the purpose of the next day's limited hearing was to determine if there was a need for a more extensive testimonial Wade hearing.

At the limited testimonial Wade hearing on February 22, 2007,5 Detective Christopher Smith, of the Essex County Prosecutor's Office, confirmed that the day after the May 6 shooting, the victims viewed photo arrays at the Irvington Police Department and did not identify anyone in the photographs. According to Smith, the Irvington photo database was "an in-house system" of individuals arrested by the Irvington police. He testified that defendant had never been arrested in Irvington and therefore his photograph was not in the Irvington database in May 2005.

Smith also testified that a week later, the victims came to the Essex County Prosecutor's Office to view additional photos from the Prosecutor's database, which included persons arrested in Newark. Again, they made no identifications. Based on his research of the Prosecutor's database, Smith determined that defendant's photo was not yet in the database during that second photo viewing. Smith testified that the first time defendant's photograph was entered into the Essex database was May 28, 2005 (approximately two weeks after the second photo viewing), when he was arrested for a drug offense in Newark. Smith also authenticated defendant's arrest record, which showed later arrests in Newark, but no Newark arrests prior to May 28, 2005.

After Smith testified, the judge invited argument "on why there should be a Wade Hearing." The prosecutor argued briefly that there was "no showing of any suggestibility" in the procedure the police used. Defense counsel did not argue the need for a Wade hearing. He explained that when he first received the reports, they raised a question as to whether the witnesses had previously seen defendant's photograph. He then stated, "With that I'll submit Judge." The judge ruled:

Whether or not I'm to interpret that as a withdrawal of the request for a Wade Hearing[,] suffice it to say that the Defendant has not [met] his threshold burden of providing or proffering evidence of impermissible suggestiveness to require the necessity of the testimonial Wade Hearing in order to determine whether or not there was a substantial likelihood of misidentification arising [from] the out of Court identification procedures.

For the first time on appeal, defendant now contends that the photo identification procedures the police used were inconsistent with the Attorney General's 2001 Guidelines for conducting such procedures, see State v. Herrera, 187 N.J. 493, 511-20 (2006), and the police failed to record the interactions between the witnesses and the officers who showed them the photo arrays. The Guidelines specifically provide that failure to follow them does not constitute grounds to invalidate an identification, a point noted by the Supreme Court in State v. Delgado, 188 N.J. 48, 61 n.7 (2006). Moreover, defendant waived both of these arguments when he failed to raise them in the trial court.

Defendant waived a full-blown Wade hearing after the initial, limited hearing concluded. Further, the defense did not later ask for a supplemental Wade hearing, ask the judge to suppress the identification evidence based on the trial testimony, or seek any other relief based on these alleged police errors. Trial errors "'induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.'" State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). But even if we consider defendant's appellate arguments, they provide no basis to disturb the verdict.

According to the Guidelines, whenever practical, the officer who shows the array to a witness should not be the primary investigator assigned to the case, to avoid the officer unconsciously cuing the witness to select a suspect's photo. There is no dispute that Detective James Marinaro showed a photo display to two victims, each of whom identified defendant's photo. Thus, when the detective showed the array to the second victim, he already knew that the first victim had identified defendant's photo from that array.

The jurors heard extensive testimony, on the direct and cross-examination of several police witnesses, concerning the proper method of showing photo arrays to witnesses. They also heard Marinaro's testimony, as well as the testimony of the second victim. They had an opportunity to make their own decision as to whether the procedure Marinaro used tainted that victim's identification of defendant.

The jurors also heard testimony that before Detective Chris Smith created a small photo array to show all of the victims, he showed one of the victims a much larger array, from which that victim identified defendant. The jury had the opportunity to consider whether that victim's later identification of defendant from the smaller array could have been tainted because, other than defendant's photo, none of the photos from the large array were included in the small array.

In his cross-examination and his summation, defense counsel emphasized the identification issues to the jury, and the prosecutor responded in her summation. The trial judge also instructed the jury at length on the evaluation of eyewitness identification evidence. It was the jury's province to decide what weight to give the identification evidence. On this record, we find no plain error in the admission of that evidence. R. 2:10-2; see Delgado, supra, 188 N.J. at 66-68.

We also find no merit in defendant's argument about preserving a record of the interactions with the witnesses. In State v. Delgado, the Court required, on a prospective basis, "that, as a condition to the admissibility of an out-of-court identification, 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." Delgado, supra, 188 N.J. at 63. Defendant contends that "there is no indication that this procedure was recorded."

According to the police testimony, they did preserve the photo arrays from which the witnesses identified defendant, and they kept a record of what the witnesses said when they made the identifications. See State v. Janowski, 375 N.J. Super. 1, 8-9 (App. Div. 2005) (recognizing that small photo arrays must be preserved, but a large computerized database of photos, which is initially shown to a victim before police create a small photo array, is the equivalent of a "mug shot book" which need not be preserved). The record was not further developed on this issue, because defendant did not request a Wade hearing. The record presented to us does not support a finding that the identification procedures were so flawed as to warrant suppression of the identification testimony at trial. R. 2:10-2.

III

Defendant next raises an issue concerning the admissibility of a list of calls made from the stolen cell phone. The police obtained that list from the cell phone provider, Nextel. However, defendant contends that this document was not properly authenticated as a business record, N.J.R.E. 803(c)(6). For the first time on appeal, he also contends that admitting the record in evidence violated his confrontation rights, as explicated in Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1368, 158 L. Ed. 2d 177, 197 (2004).

Detective Smith, who had obtained the phone record from Nextel in response to a communications data warrant, was unable to confirm whether the "document was prepared in the ordinary course of business." Nor was he the custodian of Nextel's records. And, the State did not present either a certification or testimony from a Nextel representative authenticating the document. Defense counsel objected to the document as being hearsay, but the trial judge overruled the objection, concluding that the document was a business record "provided by the telephone carrier as a result of the communications data warrant."

We agree with defendant that this ruling was a mistaken exercise of the judge's discretion, because the State presented an inadequate foundation to bring the document within the business records exception to the hearsay rule, N.J.R.E. 803(c) (6). To introduce a document into evidence as a business record, the proponent must satisfy these three conditions:

First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.

[State v. Matulewicz, 101 N.J. 27, 29, (1985).]

See State v. Sweet, 195 N.J. 357, 370 (2008). Neither side has provided us with a copy of the communications data warrant or the phone records at issue. But the transcript of Smith's testimony does not indicate whether the phone record was a list specially created to respond to the warrant, or whether it was simply a copy of a routine billing record of the type the phone company would keep in the ordinary course of business. Nor did Smith's testimony satisfy the other foundational criteria for admissibility of a business record.

However, in the context of this record, the error was harmless beyond a reasonable doubt. See State v. Macon, 57 N.J. 325, 336 (1971). There was no testimony that defendant used or possessed the stolen cell phone. The cell phone records were presented to explain how defendant became what Detective Smith described as a "person of interest" in the case, and to explain why Smith included defendant's picture in a photo array. Compared to the eyewitness testimony of all of the surviving victims, as well as defendant's confession, the phone records were a drop in the ocean of evidence proving defendant's guilt. We find no basis to reverse the conviction based on this harmless error.

Because defendant failed to raise the Confrontation Clause issue, the State had no opportunity to make a record establishing that the document was not testimonial hearsay, as defined by Crawford, supra, 541 U.S. at 59, 124 S. Ct. 1369, 158 L. Ed. 2d at 197.

We decline to consider defendant's argument, beyond noting that even if there was a Confrontation Clause violation, in the context of this case it would have been harmless error beyond a reasonable doubt. See Macon, supra, 57 N.J. at 336.

IV

Defendant next argues that his constitutional rights, and his right to pre-trial discovery, were violated when Detective Smith destroyed his handwritten investigative notes in January 2007, after submitting his typed formal report. We agree that it was improper for Smith to destroy his notes, but that does not constitute plain error warranting reversal of defendant's conviction. See R. 2:10-2.

By 2007, the Supreme Court had twice noted its disapproval "that police officers engage in the seemingly routine practice of destroying their contemporaneous notes of witness interviews after the preparation of formal reports." State v. Branch, 182 N.J. 338, 367 n.10 (2005); State v. Cook, 179 N.J. 533, 542 n.3 (2004). The Court stated this more pointedly three years after this trial, in State v. P.S., 202 N.J. 232, 240 (2010). Finally, in 2011, the Court explicitly held that police officers may not destroy their notes, such notes must be turned over to the defense in discovery pursuant to Rule 3:13-3, and failure to preserve the notes could warrant an adverse inference charge. State v. W.B., ___ N.J. ___ (2011)(slip op. at 18-19). However, in W.B., the Court also specifically provided that its holding would be prospective only. Id. at 19.

Defense counsel did not ask the trial court to instruct the jury to draw a negative inference from Smith's destruction of his notes. Nor did he ask the court to dismiss the charges on that basis. But the defense forcefully brought Smith's actions to the jury's attention. In his summation, defense counsel argued at length that Smith destroyed the notes because they would have contradicted his trial testimony on important points. The jury had ample opportunity to consider the destruction of the notes, in weighing Smith's credibility and in evaluating the State's evidence as a whole.6

V

Finally, we address defendant's contention that the sentence is excessive. Defendant was convicted by the jury of four counts of first-degree robbery, as well as robbery conspiracy. He also pled guilty to a completely unrelated charge of endangering the welfare of a child, for which he received a sentence concurrent to the robbery sentence.

In imposing sentence for the robbery of Kelly, the judge considered Kelly's death as an aggravating factor. The judge reasoned "[t]hat harm to the victim is [an] extraordinary and significant aggravating factor." See State v. Boyer, 221 N.J. Super. 387, 405-06 (App. Div. 1987), certif. denied, 110 N.J. 299 (1988). The judge also considered "the need to deter [defendant] and others from participating in such activities for which you stand before me convicted." The judge gave defendant credit for mitigating factor twelve, in light of some cooperation defendant gave the State in another case, but found that the mitigating factor was greatly outweighed by the aggravating factor of Kelly's death. The judge did not consider defendant's relatively minor prior criminal record as an aggravating factor.

In sentencing defendant on the robbery of the other victims, the judge gave defendant credit for his cooperation with the State and considered that he had not inflicted severe harm on those victims. However, pursuant to State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the judge determined to impose one consecutive sentence in recognition that there were multiple victims. The judge concluded that imposing more than one consecutive sentence would result in "a prison sentence that is vastly more onerous than one you deserve." After merging the conspiracy convictions, the judge sentenced defendant to eighteen years, subject to NERA, for the robbery of Kelly, a consecutive twelve-year NERA sentence for the robbery of a second victim, and concurrent fifteen-year sentences for the other two robberies. The judge imposed a concurrent three-year flat sentence for the unrelated child endangerment offense.

Our review of the trial judge's sentencing decision is very limited. See State v. Bieniek, 200 N.J. 601, 607-608 (2010); State v. Roth, 95 N.J. 334, 365 (1984). The judge carefully considered and balanced the appropriate factors in crafting a sentence that was not excessive. We find no abuse of discretion or other error in the sentence. We affirm substantially for the reasons stated by the trial judge at the sentencing on July 20, 2007.

Affirmed.

1 The State's trial evidence established that the gun defendant carried during the robbery was inoperable. On that basis, the court dismissed an additional weapons-related charge at the end of the State's case. At the close of the evidence, the court also dismissed a charge of murder by defendant's own conduct, with the State's consent.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant does not challenge the admissibility of the confession.

3 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

4 Both counsel later clarified that there had been three viewing sessions, rather than two, an issue further addressed in the next day's testimony.

5 We were provided with two transcripts of the February 22 hearing. The first transcript indicated that the transcriber had difficulty hearing the attorney's comments. The second transcript provided a more complete version of the attorneys' comments.

6 Defendant's final challenge to his conviction - that cumulative error warrants reversal - is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).