STATE OF NEW JERSEY , v. MICHAEL GUERINO
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4644-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL GUERINO,
a/k/a MICHAEL GIERINO,
MICHAEL GUARINO, and
CHRIS GUERINO,
Defendant-Appellant.
_________________________
Argued telephonically May 18, 2020 –
Decided September 3, 2020
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 16-04-
0672.
Margaret McLane, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Margaret McLane, of
counsel and on the briefs).
Shiraz Deen, Assistant Prosecutor, argued the cause
for respondent (Bradley D. Billhimer, Ocean County
Prosecutor, attorney; Samuel Marzarella, Chief
Appellate Attorney, of counsel; Shiraz Deen, on the
brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
Defendant, Michael Guerino, appeals from his jury trial convictions for
first-degree robbery, aggravated assault, unlawful possession of a knife, and
other charges associated with the armed robbery of a Dollar Tree. He was
sentenced to an extended term as a persistent offender pursuant to N.J.S.A.
2C:44-3(a) and received a twenty-five-year prison term subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.
The identity of the knife-wielding robber was the key disputed issue at
trial. The assistant store manager, who was stabbed in the back and suffered a
minor injury during the robbery, was a critical prosecution witness. The
outcome of the trial hinged to a large extent on her testimony identifying
defendant as the robber-assailant.
Defendant raises several contentions with respect to the victim's out-of-
court and in-court identifications. Defendant claims, for example, police
improperly administered a photo array procedure. He also argues the victim's
memory was tainted when the prosecutor two weeks before trial arranged for
her to view defendant in person as he was led with other county jail inmates
through a courthouse corridor. Defendant urges us not only to exclude the
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victim's in-court identification in this case but also to abolish outright the
familiar trial practice in which a witness identifies the perpetrator in the
presence of the jury.
In addition to raising various contentions concerning out-of-court and in-
court eyewitness identification procedures, defendant contends the tri al court
erred by allowing the jury to hear inadmissible testimony and by excluding
hearsay testimony the defense sought to elicit during the cross examination of
a detective. Defendant also challenges the sentence that was imposed.
After carefully reviewing the record in light of the applicable principles
of law and the arguments of the parties, we conclude most of defendant's
arguments lack merit and afford no basis for appellate relief. Two of
defendant's contentions relating to out-of-court identification procedures,
however, cannot be resolved on the current record. The trial court convened a
N.J.R.E. 104 hearing at which the victim described how she was asked to come
to the courthouse to observe county jail inmates, including defendant, as they
were paraded into a courtroom. That identification procedure was not
recorded in accordance with Rule 3:11. We believe the N.J.R.E. 104 hearing
did not adequately address the inherent suggestiveness of this novel
identification procedure and the court did not make specific findings
concerning system variables that may have influenced the victim's recollection.
A-4644-17T1
3
We therefore deem it necessary to remand the case for the trial court to
convene a Wade-Henderson1 hearing to more closely examine the
circumstances and impact of the unusual live lineup conducted in a courthouse
corridor. We also remand for the trial court to review the circumstances in
which the victim selected defendant's photograph from the photo array. A
Wade-Henderson hearing is warranted because a critical part of the
procedure—the moment when the victim positively identified defendant's
photograph and told the detective she was 80% certain of her selection—was
not electronically recorded and does not appear to have been documented
verbatim in accordance with Rule 3:11.
I.
In April 2016, an Ocean County Grand Jury charged defendant with (1)
first-degree robbery, N.J.S.A. 2C:15-1; (2) fourth-degree theft, N.J.S.A.
2C:20-3(a); (3) third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d); (4) fourth-degree unlawful possession of a knife,
N.J.S.A. 2C:39-5(d); and (5) third-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(2).
1
United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011).
A-4644-17T1
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Before trial, defendant moved for a Wade-Henderson hearing to examine
the robbery victim's photo-array identification. The court denied defendant's
motion.
Defendant was tried before a jury in October 2017. The jury convicted
defendant of all charged offenses. Defendant subsequently moved for a new
trial, which the court denied.
The State moved to sentence defendant to an extended term as a
persistent offender pursuant to N.J.S.A. 2C:44-3(a). Subsequently, the State
moved to sentence defendant to a mandatory extended term pursuant to
N.J.S.A. 2C:43-7.1(b), which is sometimes referred to as the "three strikes"
law. The trial court granted the State's application for a discretionary extended
term as a persistent offender. The court denied the motion for the mandatory
extended term under N.J.S.A. 2C:43-7.1(b) because the State had failed to
notify defendant of his eligibility for the mandatory extended term at the time
of the plea cutoff. The trial court sentenced defendant to an aggregate term of
twenty-five years in state prison subject to NERA.
II.
We summarize the facts relevant to this appeal that were adduced at
trial. On January 29, 2016, at around 9:40 p.m., the victim was working as an
assistant manager at a Dollar Tree store. She was behind the cash register
A-4644-17T1
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when a man wearing a gray hooded sweatshirt with stripes entered the store.
The man had the sweatshirt hood on, and his hands were in his pockets. The
victim estimated she was able to look at the man's face for around a minute.
She described his face as "kind of hollow, like dark eyes, [with] a little . . .
facial hair."
The man walked towards the cash register and reached for a candy bar.
The victim again looked at his face. As she began to scan the candy bar, the
man maneuvered behind her, pressed a knife against her back, and ordered her
to open the register.
She fumbled with the register and was unable to open it. The man told
her that if she tried to call the police, he would stick her with the knife. She
tried to reach behind her back with her right hand to pull the knife away, but
the man pressed the knife further into her back. She told him, "please don't."
When it became evident she could not open the register, the man pushed
her aside and ripped the drawer from the register. He then walked out of the
store, carrying the drawer with him.
The police were dispatched to the Dollar Tree in response to a 9-1-1 call
made by a customer who was in the store and witnessed the robbery. Officer
Matthew Broderick arrived at the store around 9:44 p.m. As he entered the
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parking lot of the shopping mall containing the Dollar Tree, he observed a
sedan leaving the scene. The officer did not stop the vehicle.
At 9:45 p.m., another officer, Detective Steven Bucci, arrived at the
store. By this point, the parking lot was empty and there were no customers in
the store other than the gentleman who called 9-1-1. Detective Bucci
interviewed the customer and the victim. They provided consistent
descriptions of the robber. Bucci testified that the victim appeared shaken up
and frightened. She had a small puncture wound on her back from the knife.
The manager of the store arrived at around 9:50 p.m. and observed the
victim standing by the register crying. The manager determined that $234.96
had been taken from the register. She attempted to provide police with an
electronic copy of the store's surveillance video but was unable to do so.
Detective Bucci instead recorded the surveillance video with the camera on his
cell phone.
The cash register drawer was found the following day on the side of a
road. The bottom portion of the drawer was next to an empty beer can. The
top half of the drawer was found twenty feet away. The police swabbed the
beer can for DNA. The DNA found on the beer can did not match defendant.
The police also attempted to find fingerprints on the beer can and the register
drawer but were unsuccessful.
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After conducting an investigation, the police identified a suspect and
prepared a photo array. The victim came to the police station on February
10—roughly two weeks after the robbery—to view the photo lineup.
Detective Louis Santora, who had no involvement in the investigation,
administered the identification procedure. The procedure was electronically
recorded, and the recording was played for the jury.
The victim inspected six photographs in sequential order. She did not
immediately identify defendant's photograph, photo #3, as depicting the
robber. Rather, she remarked that the person depicted in photo #3 looked
"similar" to the robber, particularly with respect to his moustache. Detective
Santora terminated the identification procedure and left the room.
When he returned, the victim identified photograph #3 as the robber with
80% certainty. Because the detective thought the identification procedure had
already concluded, the video camera recording the identification procedure had
been deactivated. Accordingly, the victim's statement that she was 80%
certain photograph #3 depicted the robber was not electronically recorded.
The Photo Identification Report fill-in form prepared by Detective
Santora instructs in section 21, "You must document the exact words and
gestures used by the witness to describe his/her level of confidence." In the
blank space provided on the form under this section, the detective wrote "see
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video," even though this portion of the identification procedure was not
electronically recorded. In a supplemental report, Detective Santora explained
he "reentered the room and thanked [the victim] for coming to headquarters
and assisting further in the investigation. It was at this point that [she] stated
she was 80% certain that the male depicted in photograph number three was
the same person who robbed her." The supplemental report did not
memorialize the detective's response to the victim's identification or any
ensuing dialogue between the two. At trial, Detective Santora testified the
victim "spontaneously uttered" she was 80% confident that photograph #3
depicted the robber.
The victim's trial testimony concerning the photo identification
procedure differed from Detective Santora's version. According to the victim,
Detective Santora left the photos with her when he exited the room. She
testified she compared two or three of the photos for about five minutes,
eventually deciding defendant was the robber.
We next summarize facts that were elicited from the victim at trial
during a N.J.R.E. 104 hearing outside the presence of the jury. Prior to the
victim testifying before the jury, defendant objected to the victim making an
in-court identification of defendant as the robber. Defendant argued an interim
identification procedure that occurred two weeks before trial was
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impermissibly suggestive and tainted the victim's in-court identification. The
court convened the hearing to acquire "an indication of what actually occurred
when there was an interim identification of [] defendant." The court
considered the hearing to be a "very limited inquiry" and "not a Wade
hearing."
The victim was the only witness at the hearing. She testified that an
assistant prosecutor or a detective contacted her and requested that she come to
court on October 2, 2017. The victim stated that "[t]hey wanted me to see if I
identified anyone in the courtroom. They said I could stay in court and point
out someone if I recognized them." She clarified, however, "I didn't mean to
go into the court[room] just from the lineup outside of it." She surmised the
purpose of this procedure was "just to prepare for trial." This event occurred
two weeks before trial and roughly twenty-two months after the photo array
identification procedure.
The victim met with a detective and a victim advocate at the courthouse.
She sat with them in a hallway outside a courtroom. 2 There, she observed a
line of six or seven inmates walking in the corridor. She described at least one
2
To avoid confusion between the victim's courthouse identifications before
and at trial, we use the description "hallway identification procedure" to
distinguish this pretrial identification event from the in-court identification the
victim later made during trial in the presence of the judge and jury. See infra
note 10 and accompanying text.
A-4644-17T1
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of the inmates as "Spanish" and acknowledged there could have been more
than one Spanish or Hispanic inmate in the group. She testified that she was
absolutely certain she recognized one of the inmates, defendant, as the robber.
She also testified that no one instructed her to make an identification, and that
she was told the person she had previously identified may or may not be in
court. After she identified defendant, the victim left the courthouse without
entering the courtroom.
After the hearing, the trial court concluded that the hallway
identification procedure had not tainted the victim's ability to make an in -court
identification of defendant. The court found there was nothing suggestive
about the hallway event and that it did not constitute a lineup. Because the
hallway identification would not be presented to the jury, the court did not
consider the Henderson system variables, which it characterized as strictly "a
test for . . . admissibility" of "formal identification procedures." 3
The State did not present evidence of the hallway event to the jury.
Rather, the photo array was the only out-of-court identification procedure
about which the jury was told. The prosecutor showed the victim the
3
Because the court deemed the Henderson system variables inapposite, the
court limited defense counsel's ability to elicit testimony from the victim
concerning those variables.
A-4644-17T1
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photograph she had selected from the array. She identified the photo as
depicting the robber. She also identified defendant in the courtroom in the
presence of the jury. She testified she had been 80% confident that defendant
was the robber based on the photo array procedure. After seeing defendant's
build and height in-person, however, she was 100% certain defendant was the
robber.4
III.
Defendant presents the following contentions for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING A
WADE HEARING AND ADMITTING AN
UNRELIABLE IDENTIFICATION.
A. THE COURT ERRED IN DENYING
A WADE HEARING BECAUSE THE
DEFENSE PRESENTED SOME
EVIDENCE OF SUGGESTIVENESS.
B. THE IN-COURT IDENTIFICATION
SHOULD NOT HAVE BEEN
ADMITTED BECAUSE IT WAS
4
It is not clear whether the victim was referring to her in-person observation
of defendant at trial, to her live observation of defendant two weeks earlier in
the courthouse hallway, or to both events. As noted, the State did not prese nt
evidence to the jury concerning the hallway identification event. However, the
victim testified at the N.J.R.E. 104 hearing that she was "a hundred percent
sure" one of the inmates was the robber. As we later explain, this reasonably
suggests that her newfound certitude was influenced by the hallway
identification event.
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TAINTED BY PRIOR
IDENTIFICATION PROCEDURES,
UNRELIABLE, AND UNDULY
PREJUDICIAL.
1. THE IN-COURT IDENTIFICATION
SHOULD HAVE BEEN EXCLUDED
BECAUSE IT WAS UNDULY
SUGGESTIVE, AND ITS MINIMAL
PROBATIVE VALUE WAS FAR
OUTWEIGHED BY ITS UNFAIR
PREJUDICE.
2. THE IN-COURT IDENTIFICATION
SHOULD HAVE BEEN EXCLUDED
BECAUSE OF THE EQUIVOCAL
NATURE OF THE OUT-OF-COURT
IDENTIFICATION.
3. THE IN-COURT IDENTIFICATION
MUST BE EXCLUDED BECAUSE IT
WAS TAINTED BY PRIOR
SUGGESTIVE OUT-OF-COURT
PROCEDURES.
4. THE IMPROPER ADMISSION OF
[THE VICTIM'S] IN-COURT
IDENTIFICATION DEPRIVED
DEFENDANT OF HIS RIGHT TO A
FAIR TRIAL, AND THE HARM WAS
COMPOUNDED BY
PROSECUTORIAL ERROR.
POINT II
INADMISSIBLE TESTIMONY ABOUT WHY
DEFENDANT'S PHOTO WAS INCLUDED IN THE
ARRAY AND INADMISSIBLE LAY OPINION
TESTIMONY FROM THE LEAD INVESTIGATING
OFFICER IDENTIFYING DEFENDANT AS THE
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PERSON IN THE SURVEILLANCE FOOTAGE
DEPRIVED DEFENDANT OF HIS RIGHT TO A
FAIR TRIAL.
A. TESTIMONY THAT POLICE
CREATED THE PHOTO ARRAY
CONTAINING DEFENDANT'S
PHOTO BECAUSE UNIDENTIFIED
"SOURCES" PROVIDED
INFORMATION WAS
INADMISSIBLE AND VIOLATED
DEFENDANT'S RIGHT TO
CONFRONTATION.
B. LAY OPINION TESTIMONY FROM
THE LEAD DETECTIVE
IDENTIFYING DEFENDANT AS
THE ROBBER ON THE
SURVEILLANCE VIDEO AND IN
PHOTOGRAPHS WAS IMPROPER
AND PREJUDICIAL.
POINT III
THE IMPROPER EXCLUSION OF A WITNESS'S
DESCRIPTION OF A CAR LEAVING THE SCENE
OF THE ROBBERY REQUIRES REVERSAL OF
DEFENDANT'S CONVICTIONS.
POINT IV
DEFENDANT'S EXTENDED TERM SENTENCE OF
TWENTY-FIVE YEARS WITH AN 85% PAROLE
DISQUALIFIER IS MANIFESTLY EXCESSIVE.
Defendant raises additional arguments in a pro se letter brief that he
submitted after his appellate counsel submitted a merits brief and reply brief.
Defendant's pro se letter brief does not include point headings, see R. 2:6-
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2(a)(1) (requiring a table of contents with point headings in a formal brief on
appeal), and therefore we do not list his contentions in this section of our
opinion.
We have carefully reviewed defendant's pro se letter brief and conclude
that, for the most part, it reiterates arguments raised in the briefs submitted by
counsel on his behalf. To the extent the pro se letter brief raises additional
contentions, those contentions lack sufficient merit to warrant discussion in
this opinion. R. 2:11-3(e)(2). It suffices to note that defendant additionally
argues police conducted an unlawful warrantless search of the premises where
he had been staying at the time he was arrested. The physical evidence in
question, however, relates to other burglaries and was not introduced at the
robbery trial at issue in this appeal. Defendant also claims boxes containing
the files of both the prosecutor and defense that had been sitting on counsel
tables were removed from the courtroom by a Sheriff's officer and stored in the
jury room while the courtroom was being cleaned. Nothing in the record
suggests that jurors or anyone else viewed confidential materials.
IV.
We first address defendant's contentions with respect to the various
eyewitness identification procedures that were employed in this case. We
begin by acknowledging certain foundational principles set forth in the
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landmark Henderson decision in which the Supreme Court significantly
revised the analytical framework for evaluating the admissibility of eyewitness
identifications. The Court deemed reform necessary because the previous
legal test and jury instructions overstated a jury's ability to evaluate
identification evidence. Henderson, 208 N.J. at 218. Chief Justice Rabner,
writing for a unanimous Court, articulated a four-step analysis for courts to
apply in deciding whether to grant an evidentiary hearing and, if a hearing is
warranted, whether to admit or suppress an out-of-court identification at trial.
"First, to obtain a pretrial hearing," the Court held, "a defendant has the
initial burden of showing some evidence of suggestiveness that could lead to a
mistaken identification." Id. at 288. Only if a defendant makes that threshold
showing does the trial court proceed to the second step in the Henderson
analytical paradigm. If the trial court determines a defendant has met the
threshold for a hearing, "[t]he State must then offer proof to show that the
proffered eyewitness identification is reliable[,] accounting for system and
estimator variables." Id. at 289. At any time, the court may end the hearing
and conclude that the State has shown that defendant's initial showing of
suggestiveness is groundless. Ibid.
Under the third step, the defendant bears the ultimate burden at the
hearing "to prove a very substantial likelihood of irreparable
A-4644-17T1
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misidentification." Ibid. "Fourth, if after weighing the evidence presented a
court finds from the totality of the circumstances that defendant has
demonstrated a very substantial likelihood of irreparable misidentification, the
court should suppress the identification evidence." Ibid. The court
nonetheless has the discretion to admit the identification evidence with
appropriate, tailored jury instructions. Ibid.
To aid in assessing the reliability of an eyewitness identification, the
Henderson Court outlined a non-exhaustive list of circumstances, termed
"system variables," affecting the reliability of an identification that are created
or controlled by law enforcement. System variables are distinguished from
"estimator variables" over which law enforcement has no control such as
lighting conditions, the amount of time the witness had to observe the
offender, whether the witness's attention was focused on a weapon, and the
degree of stress experienced by the witness. Our analysis in this case focuses
on system variables, examining the manner in which the out-of-court
identification procedures were conducted and the degree of suggestiveness
inherent in those procedures.
V.
Defendant urges us to ban all in-court identifications, or at least to
restrict in-court identifications to cases where there has been an "unequivocal"
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out-of-court identification. Defendant reasons the scientific principles that
necessitated the reforms achieved in Henderson demonstrate that in-court
identifications are the product of inherently suggestive circumstances and have
minimal probative value. He contends nearly all the system variables
discussed in Henderson apply to in-court identifications, and that this
traditional practice "does not comport with the post-Henderson legal landscape
and must be updated."
The relief defendant seeks would represent a significant change to our
State's eyewitness identification jurisprudence. Defendant urges us to cast
aside a familiar courtroom practice that has been used for generations.
Although defendant refers obliquely to a post-Henderson legal landscape, he
cites no New Jersey authority to support his request for abolition of in -court
identifications. To the contrary, we are asked to part company with well-
established precedent, including Henderson.
Those precedents make clear that the decision to prohibit an in-court
identification is made on a case-by-case basis. See State v. Madison, 109 N.J.
223, 242 (1988) (holding an in-court identification is not admissible if a
"photographic identification procedure was so impermissibly suggestive as to
give rise to a very substantial likelihood of irreparable misidentification"
(emphasis omitted) (quoting Simmons v. United States, 390 U.S. 377, 384
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(1968))). In Henderson, the Court reframed the analysis in Madison in view of
modern social science. 208 N.J. at 288. Notably, the Court did not go so far
as to eliminate in-court identifications. We decline to do so as well.
We do not mean to suggest the familiar practice of having a trial witness
point to the defendant sitting at counsel table is a talisman carved in stone.
Chief Justice Rabner aptly recognized in Henderson that scientific research on
human memory and the reliability of eyewitness identifications will continue
to evolve. Id. at 219. We are not persuaded, however, that we have the
evidential foundation upon which to grant the fundamental change defendant
seeks. In Henderson, the reform of New Jersey's eyewitness identification
jurisprudence was supported by an extensive report of a special master
appointed by the Court to compile and evaluate the scientific evidence
regarding eyewitness identifications. Id. at 228–29. Using that example of
scientific groundwork as a benchmark, the record before us in this case is
inadequate to test the validity and utility of in-court identifications.
Furthermore, we do not believe this is an appropriate case in which to
decide whether to abandon an established practice given our decision to
remand for an evidentiary hearing. That hearing will examine whether the
victim's in-court identification was tainted by either or both the photo array
and hallway identification procedures. Defendant may yet obtain the ultimate
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remedy he seeks by applying existing legal principles. In these circumstances,
we see no need to displace those principles.
VI.
Defendant raises several contentions with respect to the photo array
identification procedure. First, he contends Detective Bucci made unduly
suggestive comments to the victim when he told her that the State had
developed the photo array based on information from unspecified "sources." 5
After carefully reviewing the record, we conclude the detective's introductory
remarks did not taint the victim's subsequent selection of the defendant's
photograph from the array. The detective's brief reference to investigative
sources merely made explicit that which is implicitly understood by witnesses
participating in an identification procedure, that is, there must be some reason
why the police selected the photographs that were included in the array.
Henderson requires the officer administering the procedure to provide
neutral pre-identification instructions. Specifically, the eyewitness must be
told a photograph of the suspect may not be present in the array. Id. at 290.
The witness also must be told that he or she should not feel compelled to make
an identification. Ibid.
5
In section X of this opinion, we address defendant's contention that
Detective Bucci's statement concerning investigative sources should not have
been admitted at trial.
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The electronic recording made pursuant to Rule 3:11 confirms those
instructions were given to the victim at the outset of the identification
procedure. We therefore conclude the detective's brief reference to
unidentified investigative sources does not meet the threshold under
Henderson for further exploration at a Wade-Henderson hearing. Id. at 218.
VII.
Defendant next challenges the composition of the array, arguing the
"innocent filler" photographs did not sufficiently resemble defendant.
Defendant claims, for example, his photograph depicts him with a fuller
mustache than the persons depicted in the other photographs. 6 He also
contends that two of the photographs were poorly lit.
The Court in Henderson explained, "The way that a live or photo lineup
is constructed can . . . affect the reliability of an identification. Properly
constructed lineups test a witness'[s] memory and decrease the chance that a
witness is simply guessing." Id. at 251. The Court concluded that a photo
array should contain at least five innocent fillers and should not contain more
than one photograph of the suspect. Ibid. The Court also held that "a suspect
should be included in a lineup comprised of look-alikes." Ibid. The Court
6
We note the victim had not reported to police that the perpetrator had a full
mustache. Rather, she reported the robber had scruffy facial hair.
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recognized that "mistaken identifications are more likely to occur when the
suspect stands out from other members of a live or photo lineup." Ibid.
The trial judge in this case reviewed the array and found that the filler
photographs sufficiently matched defendant's appearance to constitute a proper
array. We too have reviewed the photos and decline to substitute our judgment
for that of the trial court. Although we note that some of the photos depict
persons with less facial hair than shown in defendant's photo, we are satisfied
the innocent filler photographs depict persons who match the description the
victim had given to police. Accordingly, we see no reason to grant a further
hearing with respect to the composition of the array.
VIII.
We next address the circumstances in which the victim selected
defendant's photograph from the array, announced her selection, and expressed
her level of confidence. Defendant contends that Detective Santora left the
array with the victim when he exited the room, allowing her to view the
photographs simultaneously rather than sequentially. The victim testified at
trial that Detective Santora left the photos with her, she compared two or three
of the photos for about five minutes, and eventually selected defendant's
photograph as depicting the robber. The detective testified at trial that he took
the array with him when he left the room, believing the identification
A-4644-17T1
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procedure had been completed. The video recording supports the detective's
version.
In light of the video record, we see no reason to grant a Wade-
Henderson hearing to determine whether the victim was left unattended with
the array and viewed the photographs simultaneously rather than sequentially. 7
We nonetheless are concerned that the video recording does not document the
moment the victim announced her selection of a photo from the array. Nor
does it document any ensuing dialogue between the victim and the detective.
The detective's description of the victim's identification in his
supplemental report, moreover, does not appear to provide a verbatim account
of the entire exchange between the two after the detective returned to the
interview room. As we have noted, the detective testified that when he
returned to the room the victim "spontaneously uttered" that she was 80%
confident that one of the photographs depicted the robber. The supplemental
report does not memorialize any dialogue that may have occurred after the
victim made that unsolicited statement.
7
We note that a simultaneous presentation method, which allows a witness to
make side-by-side comparisons, is not necessarily improper and certainly is
not prohibited per se. See id. at 256–58 (noting the scientific evidence
concerning sequential versus simultaneous arrays had not yet resulted in a
preference for one form of procedure over the other).
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We do not fault the detective for turning off the camera when he
believed the identification procedure had concluded. However, when he
returned to the interview room and was told by the victim that she was now
prepared to select a photograph depicting the robber, it would have been
prudent for the detective to interrupt the dialogue, restart the recording device,
and memorialize verbatim any exchange he had with her during the period
when the recording device was deactivated. Those precautions would have
ensured that a proper record was made in accordance with Rule 3:11.
In Henderson, the Court reaffirmed prior precedent by requiring "all
lineup procedures [to] be recorded and preserved." Id. at 252 (citing State v.
Delgado, 188 N.J. 48, 63 (2006)). In State v. Anthony, the Court recently
amplified the need to record identification procedures, explaining:
If a law enforcement officer does not
electronically record the identification procedure or
prepare a contemporaneous verbatim account of the
exchange, the defendant may not learn about
confirmatory feedback or other suggestive behavior.
Without that critical information, he or she may not be
able to get a hearing under the current standard -- as
happened in this case.
Stated another way, defendants need a full
record of the identification procedure to gather
possible evidence of suggestiveness. The failure to
provide that information should not deprive
defendants of the opportunity to probe about
suggestive behavior that may have tainted an
identification.
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[ 237 N.J. 213, 233 (2019).]
To address that situation, the Court in Anthony modified the Henderson
framework, holding a defendant is "entitled to a pretrial hearing on the
admissibility of identification evidence if Delgado and Rule 3:11 are not
followed and no electronic or contemporaneous, verbatim written recording of
the identification procedure is prepared." Ibid. "In such cases," the Court
ruled, "defendants will not need to offer proof of suggestive behavior tied to a
system variable to get a pretrial hearing." Id. at 233–34.
We interpret Anthony to apply to the entire identification procedure,
including the victim's selection of a photograph and any exchange between the
victim and detective following the selection. See Rule 3:11(c) (explaining the
record of an out-of-court identification procedure must include details of what
occurred, including the dialogue between the witness and the officer and the
results of the identification procedure). As noted, it does not appear the
detective's supplemental report provides a detailed account of the entire
dialogue that occurred after he returned to the room and while the video
recorder was turned off. See R. 3:11(b) (requiring a written record of an out-
of-court identification procedure to include "a detailed summary of the
identification" if it is infeasible for the law enforcement officer to provide a
"verbatim account of any exchange between the . . . officer . . . and the
A-4644-17T1
25
witness"). The supplemental report suggests the detective said nothing to the
victim after she spontaneously announced she was 80% certain that one of the
photographs depicted the robber. It seems to us unlikely those were the last
words spoken during the identification procedure.
In view of the revised threshold standard adopted in Anthony, we
remand for the trial court to convene an evidentiary hearing. We instruct the
court to make detailed findings with respect to the results of the identification
procedure, the entire dialogue between the victim and the detective after he
returned to the interview room, and any other aspect of the photo array
identification procedure the court deems relevant.
For purposes of providing guidance to the remand court, we note the
Court in Anthony rejected a bright-line rule that would bar identification
testimony in the absence of strict compliance with Rule 3:11. 237 N.J. at 239.
Recognizing that "[t]he threshold for suppression remains high," ibid.
(alteration in original) (quoting Henderson, 208 N.J. at 303), the Court requires
defendants to show "a very substantial likelihood of irreparable
misidentification," ibid. (quoting Henderson, 208 N.J. at 289).
We add that in Henderson, the Court noted, "the court can end the
hearing at any time if it finds from the testimony that defendant's threshold
allegation of suggestiveness is groundless." 208 N.J. at 289. Applying that
A-4644-17T1
26
principle to the revised threshold in Anthony, the trial court on remand may in
its discretion end the hearing with respect to the photo array procedure if it
finds the supplemental report in fact recounted verbatim the entire exchange
between the detective and the victim after he returned to the room, provided no
evidence of suggestiveness has been demonstrated by the evidence. Id. at
290–91.
IX.
We next address the unusual event that occurred in a courthouse
corridor. As noted, the victim was asked to come to the courthouse to view a
line of county jail inmates who paraded past her as she sat in the hallway
outside a courtroom. We are not familiar with this procedure and have
concerns about its potential suggestiveness. Importantly, this planned
identification event was not electronically recorded, no contemporaneous
verbatim account was made, no photograph of the inmates was presented, and
the trial court limited defense counsel's opportunity to question the victim
concerning system and estimator variables. The present record, moreover,
does not adequately document the pre-procedure instructions that were given
to the victim, the physical attributes of the other county jail inmates who
served functionally as "innocent fillers," the victim's contemporaneous
statements regarding her level of confidence, and the dialogue between the
A-4644-17T1
27
victim and the representatives from the prosecutor's office before, during, and
after the identification event. We do not know whether the detective and
victim advocate who accompanied the victim were "double blind" or "blind"
administrators 8 and whether they provided confirmatory feedback.
A.
In Henderson, the Court admonished "we must strive to avoid
reinforcement and distortion of eyewitness memories from outside effects."
208 N.J. at 295. The Court recognized that information received by witnesses
both before and after an identification can affect their memory. Id. at 253.
The Court also recognized that viewing a suspect more than once during an
investigation can affect the reliability of the later identification. Id. at 255.
Successive views, the Court explained, "can make it difficult to know whether
the later identification stems from a memory of the original event or a memory
of the earlier identification procedure." Ibid. In this instance, the hallway
event occurred roughly two years after the robbery and photo array procedure
and two weeks before trial. The timing underscores the possibility that the
8
The Court explained in Henderson that an identification may be unreliable if
the lineup procedure is not administered in double-blind or blind fashion. 208 N.J. at 248–50. "Double-blind administrators do not know who the actual
suspect is." Id. at 248. "Blind administrators are aware of that information but
shield themselves from knowing where the suspect is located in the lineup or
photo array." Ibid.
A-4644-17T1
28
victim's in-court identification stems from her memory of the hallway event
rather than from her recollection of the robbery or the photo array
identification procedure.
As we have noted, the hallway event was not submitted for the jury's
consideration.9 The State cannot avoid the consequences of a potentially
suggestive identification procedure, however, simply by choosing not to
introduce evidence of its occurrence. Suppression of an out-of-court
identification procedure, after all, is not the only potential remedy for an
impermissibly suggestive procedure that has the potential to corrupt a witness's
memory. Such a procedure could also place at risk the admissibility of a
subsequent in-court identification.
The unusual hallway event must therefore be examined carefully because
it bears on the admissibility of the victim's in-court identification during which
she professed to be 100% certain defendant was the culprit. In Madison, the
Court held an in-court identification is not admissible if a "photographic
9
We note the potential prejudice that would have arisen had the jury been told
of defendant being led in jail garb and restraints into a courtroom. See State v.
Grant, 361 N.J. Super. 349, 358 (App. Div. 2003) (noting the inherent
prejudice from permitting a jury to see a defendant in handcuffs or shackles
can constitute reversible error (citations omitted)). We add that defense
counsel faced a dilemma in deciding whether to argue to the jury the hallway
event was suggestive and influenced the victim's recollection of the robber
since that would have revealed defendant's pretrial custody status.
A-4644-17T1
29
identification procedure was so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification." 109 N.J. at 242
(emphasis omitted) (quoting Simmons, 390 U.S. at 384). We have no doubt
this longstanding principle, which was left unchanged in Henderson, applies as
well to impermissibly suggestive live lineups and showups.
We add the Court in Henderson recognized that judicial scrutiny
"promotes deterrence in a meaningful way," 208 N.J. at 288, and that "probing
pretrial hearings about suggestive police procedures . . . can deter
inappropriate police practices," id. at 294. Meaningful judicial review can, for
example, provide incentives for prosecutors to ensure that any pretrial
viewings like the one that occurred in this case are conducted carefully,
mindful of suggestiveness tied to system variables, and are fully documen ted.
We trust our decision to remand this case for a fulsome Wade-Henderson
hearing, notwithstanding the prosecutor's decision not to introduce evidence of
the hallway event to the jury, will put law enforcement on notice that such
planned pretrial viewings may be subject to judicial review even if done only
for the purpose of trial preparation. See discussion infra Section IX.B.
B.
We next address whether the hallway event is an out-of-court
identification procedure subject to the requirements and remedies set forth in
A-4644-17T1
30
case law and Rule 3:11. At oral argument, the prosecutor described the event
as "trial prep." The State cites no authority, however, for the proposition that
Henderson and its case law progeny do not apply to identification procedures
that are intended to prepare a witness for an impending trial. The Court in
Henderson focused on the science of human memory, not the prosecutor's
underlying reasons for arranging for a pretrial view of a defendant, when it
cautioned that such views "can make it difficult to know whether the later
identification stems from a memory of the original event or a memory of the
earlier identification procedure." 208 N.J. at 255. An in-person viewing can
affect a witness's memory regardless whether the prosecutor who arranged the
viewing intended to introduce evidence of the event at trial.
It bears emphasis this was not a situation where the prosecutor met with
the victim shortly before trial to refresh her recollection of her prior statements
and the selection she made and confidence level she expressed during the
photo array procedure. Rather, the hallway event was essentially a new
identification procedure, reflecting, ostensibly, the prosecutor's efforts to
secure a higher confidence level than the one the victim expressed at the
conclusion of the photo array procedure. See infra note 11.
In the particular circumstances of this case, therefore, we do not embrace
the State's "trial prep" characterization if the prosecutor means to suggest the
A-4644-17T1
31
hallway event falls outside the scope of Rule 3:11 and cases that address the
reliability of eyewitness identifications. We add that before the jail inmates
were brought into the corridor, the victim was told the person she had
identified in the photo array lineup may or may not be among them. In view of
this apparent homage to this required feature of an out-of-court identification
procedure, see Henderson, 208 N.J. at 250 (setting forth pre-identification
instructions for identification procedures), the State is hard pressed to suggest
that this prosecutor-arranged viewing was not an identification procedure
subject to scrutiny under Henderson, Anthony, and Rule 3:11.10
That Court Rule, which was promulgated by the Supreme Court to
implement the principles set forth in Henderson, refers broadly to out-of-court
identifications "resulting from a photo array, live lineup, or showup
identification procedure conducted by a law enforcement officer." R. 3:11(a).
We believe this list is intended to be exhaustive, covering the entire universe
10
We also reject any notion this was an "in court" procedure, thereby falling
outside the ambit of Rule 3:11(a), which refers explicitly to an out-of-court
identification. The term "in court identification" as used in our case law refers
to an identification made by a witness at trial on the record and in the presence
of the judge and jury. That term does not apply to eyewitness identifications
that happen to be made inside a courthouse but outside the presence of the
judge and jury. For purposes of evaluating system variables and
suggestiveness, we see no meaningful distinction between a live lineup or
showup conducted in a courthouse corridor and one conducted in a police
station or prosecutors office.
A-4644-17T1
32
of events at which eyewitnesses are asked by police or prosecutors whether
they can recognize and point out the perpetrator by observing one or more
individuals either in-person or by means of photographs.
In this instance, a representative from the prosecutor's office asked the
victim to come to the courthouse for the purpose of viewing defendant and
other persons who were in law enforcement custody. The objective was to see
if the victim could recognize the robber in person. Perhaps it was a dress
rehearsal for an in-court identification at the impending trial. Representatives
from the prosecutor's office accompanied the victim during that viewing
process.11 Although the record is not clear as to her exact response upon
viewing defendant, the victim reported to the representatives that she
positively identified defendant as the robber. In these circumstances, we
conclude the event was an "identification procedure conducted by law
enforcement" within the meaning and intended scope of Rule 3:11(a).
11
As noted, the prosecutor at the limited N.J.R.E. 104 hearing did not present
testimony from the representatives from the prosecutor's office who contacted
the victim and accompanied her in the courthouse corridor. Based on the
victim's hearing testimony that she was asked by an assistant prosecutor or
detective to come to the courthouse on a specific date to see if she could
recognize the perpetrator, we presume the event was conceived and
orchestrated by the prosecutor's office to enhance her trial testimony by
bolstering her prior photo array identification.
A-4644-17T1
33
Labels aside, the law enforcement-initiated observation event that
occurred in the courthouse corridor reasonably appears to have bolstered the
victim's confidence in her prior identification of the robber. At the conclusion
of the earlier photo array procedure, the victim was only 80% certain the
photograph she selected depicted the robber. At trial, she testified she was
100% positive of her in-court identification.
As the Court aptly noted in Henderson, "Memories fade with time. . . .
[M]emories never improve." 208 N.J. at 267. We acknowledge that a witness
may become more certain of his or her identification after seeing a person live
in the courtroom during a true in-court identification. Perhaps that happened
in this case and explains the marked upsurge in the victim's level of
confidence. But as we have already noted, the victim acknowledged in her
N.J.R.E. 104 hearing testimony, which preceded her formal in-court
identification, that she was absolutely certain one of the inmates was the
robber. We therefore believe it is a fair inference, if not an inescapable one,
the hallway viewing influenced the victim's confidence in her identification.
The trial judge at the conclusion of the N.J.R.E. 104 hearing determined
the hallway encounter had no impact on the victim's ability to make a
traditional in-court identification. We believe that determination was
premature. Had the State sought to introduce evidence of the victim's hallway
A-4644-17T1
34
identification, the inherent suggestiveness of the identification procedure
would have required the State under the second step in the Henderson
framework to "offer proof to show that the proffered eyewitness identification
is reliable[,] accounting for system and estimator variables." Id. at 289. The
potential influence of the hallway identification procedure on the victim's in-
court identification leads us to conclude the State likewise bears the burden
here to offer proof as to what transpired and what system variables were in
play. The record developed at the N.J.R.E. 104 hearing was inadequate,
however, to permit us to examine the level of suggestiveness and the impact of
system variables on the victim's memory. See supra note 3.
We reject as irrelevant the State's argument the victim had the right to
attend court proceedings. 12 That argument misses the point. No one disputes a
victim has a right to attend pretrial hearings. That right, subject to a trial
sequestration order, is guaranteed both by Article I, paragraph 22 of the New
Jersey Constitution and by the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-
36(r). In this case, however, it seems plain the victim was not exercising her
right to attend court proceedings as she waited in the hallway for a line of
inmates to walk by. As noted, she never actually entered a courtroom. Rather,
12
We likewise dismiss as inapposite the State's argument that citizens-at-large
have the right to enter a courthouse and attend court proceedings that are open
to the general public.
A-4644-17T1
35
it reasonably appears the event in the courthouse corridor was conceived,
initiated, and implemented by the prosecutor or police for the purpose of
strengthening the State's case. 13
In these circumstances, we hold this planned viewing was subject to the
recordation requirements of Rule 3:11. As we have already noted, in Anthony,
the Court recently held that a defendant is entitled "to a pretrial hearing on the
admissibility of [the] identification evidence if . . . Rule 3:11 [is] not followed
and no electronic or contemporaneous, verbatim written recording of the
identification procedure is prepared." 237 N.J. at 233. The Court made clear
that defendants need not offer proof of suggestiveness in order to obtain this
remedy. Id. 233–34.
13
We recognize there may be instances when a victim exercises the right to
attend pretrial proceedings and thus has an opportunity to observe a defendant
in jail garb after an out-of-court identification procedure and before trial.
What distinguishes those events from the hallway viewing that occurred in this
case is that they are not conducted and controlled by police or prosecutors.
We add that providing routine notice to victims of scheduled court events does
not raise the same concerns. We believe there is a marked difference between
advising a victim about a court hearing they may choose to attend on the one
hand and asking the victim to come to the courthouse so that he or she can
view the defendant in person to confirm or bolster an earlier identification on
the other hand. In any event, we need not speculate about various scenarios
where a crime victim may happen to view a defendant before trial. In the
particular circumstances of this case, we believe the in-person viewing in the
courthouse corridor was a planned out-of-court identification procedure
conducted by law enforcement and thus subject to the recording requirements
of Rule 3:11.
A-4644-17T1
36
We believe that revised threshold standard, designed in part to
encourage compliance with Rule 3:11, applies in this case, recognizing that the
issue before us is not whether the hallway event is admissible but rather
whether it impermissibly tainted the victim's memory and subsequent in-court
identification. We therefore conclude an evidentiary hearing is required to
identify and evaluate all applicable system variables so that the trial court can
determine based on a fulsome record whether this novel identificatio n
procedure may have tainted the victim's memory and subsequent in-court
identification.
As noted, the trial court described the N.J.R.E. 104 hearing as only a
"limited inquiry" and "not a Wade hearing." In the circumstances of this case,
we apply the reasoning in Anthony to require a new hearing to fill in the gaps
resulting from the State's failure to contemporaneously document what
transpired. We add that even without the new threshold spelled out in
Anthony, we would deem it necessary to convene a more fulsome evidentiary
hearing applying the threshold test established in Henderson. The current
record presents some evidence of suggestiveness that could lead to a mistaken
identification. Henderson, 208 N.J. at 288. We presume, for example,
defendant was wearing a county jail jumpsuit and was in handcuffs and
shackles as he was being transported from the jail to a courtroom.
A-4644-17T1
37
We further emphasize the admonition in Henderson that "a biased lineup
may inflate a witness'[s] confidence in the identification because the selection
process seemed easy" and that "mistaken identifications are more likely to
occur when the suspect stands out from other members of a live or photo
lineup." Id. at 251. It is not certain on the record before us whether and to
what degree defendant stood out from the other inmates. 14 We note defendant
was more than fifty years old and stands six feet-two inches tall with a thin
build. Those physical characteristics may have readily distinguished him from
the other inmates lined up in the hallway. As we have noted, the victim
testified she became certain defendant was the robber after observing his
height and build, suggesting those physical traits were especially significant.
The current record also fails to disclose whether the detective or victim
advocate who accompanied the victim provided confirmatory feedback, either
during or immediately following the hallway procedure or at some other time
14
The State at the N.J.R.E. 104 hearing did not present a photograph of the
group of inmates who paraded past the victim along with defendant. See R.
3:11(c)(4) (requiring that the record of an out-of-court identification, if a live
lineup, include a picture of the lineup). The limited evidence suggests at least
one of the other inmates was Spanish, to use the victim's characterization. The
record before us is inadequate, however, to determine whether the other
inmates resembled defendant aside from them all wearing county jail
jumpsuits.
A-4644-17T1
38
prior to the victim's in-court identification. These and related questions
require further exploration, explanation, and evaluation.
C.
The Court noted in Henderson that appellate review remains a backstop
to correct errors that may not be caught at or before trial. 208 N.J. at 295.
Although we have the authority under Henderson to determine that
identification evidence should not have been admitted and to reverse a
conviction, ibid., we decline to exercise original jurisdiction in this case, see
State v. Micelli, 215 N.J. 284, 293 (2013) (holding the Appellate Division
panel improperly exercised original jurisdiction by weighing evidence and
making factual findings pertaining to a Wade hearing (citing Cannuscio v.
Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999))). There
are important questions that cannot be answered from the limited evidence
adduced at the N.J.R.E. 104 hearing. We therefore remand this matter for the
trial court to conduct a new evidentiary hearing to reconstruct to the greatest
extent feasible what happened in the courthouse corridor, to identify and assess
all applicable system variables, and to determine whether the procedure was
A-4644-17T1
39
unduly suggestive and corrupted the victim's memory, applying the principles
set forth in Henderson.15
We deem it to be especially important for the trial court to determine
whether the composition of the live lineup was fair and unbiased. We
recognize it may be logistically difficult for the prosecutor to ascertain the
physical appearance of the other inmates the victim observed in the corridor
alongside defendant. If so, that would be the direct result of the prosecutor's
failure to electronically record the event or at least take a still photograph of
the live lineup, see R. 3:11(c)(4), and would not change the State's burden of
production on remand.
We add it is conceivable the prosecutor did not select "look-alikes" to
appear along with defendant. See Henderson, 208 N.J. at 251 (instructing "a
15
The trial court on remand, in its discretion, may utilize any remedy offered
in Rule 3:11(d). That section provides:
If the record that is prepared is lacking in important
details as to what occurred at the out-of-court
identification procedure, and if it was feasible to
obtain and preserve those details, the court may, in its
sound discretion and consistent with appropriate case
law, declare the identification inadmissible, redact
portions of the identification testimony, and/or fashion
an appropriate jury charge to be used in evaluating the
reliability of the identification.
[Ibid.]
A-4644-17T1
40
suspect should be included in a lineup comprised of look-alikes"). Rather, the
prosecutor may have relied on the court calendar to determine, essentially by
chance, which inmates would be transported from the jail to the courtroom
along with defendant. It is possible, in other words, the hallway procedure
was not designed to have the victim view different individuals who resemble
each other so much as to provide an opportunity for the victim to view
defendant in person before trial.
In that event, the procedure would share many of the characteristics of a
"showup" identification where no effort is made to provide innocent fillers
who resemble the suspect, where the suspect is clearly in law enforcement
custody, and where the procedure cannot be performed double blind or blind.
208 N.J. at 259–61; see also supra note 8. The Court in Henderson cautioned
that showups are inherently suggestive and should be conducted within two
hours of the crime. 208 N.J. at 261. Applying that temporal benchmark,
conducting the functional equivalent of a showup identification nearly two
years after the crime could be problematic, to say the least.
The court on remand shall make detailed findings of fact and law to
permit appellate review if needed. At a minimum, the court must make
findings concerning: (1) pre-procedure instructions that were given to the
victim; (2) whether the detective and victim advocate accompanying the victim
A-4644-17T1
41
met the standard of double blind or blind administrators; (3) the number and
appearance of other county jail inmates the victim observed and whether
defendant stood out in terms of height, weight, race, ethnicity, age, hairstyle
and facial hair, and any other distinguishing physical characteristics; (4)
whether defendant and the other inmates were wearing jail garb and were in
physical restraints; (5) the degree of confidence the witness expressed in her
identification; (6) the verbatim dialogue between the witness and the detective
and victim advocate throughout the procedure; (7) whether there was any
confirmatory feedback expressed by anyone at any time before the witness's
appearance at trial, including after the hallway procedure was concluded; and
(8) any other facts or circumstances the court deems relevant.
We reiterate that although the State must offer proof at the remand
hearing, defendant bears the ultimate burden of persuasion. Id. at 289. As we
have already noted, the threshold for suppression of the in-court identification
is high, id. at 303, and to obtain that relief, defendant must show "a very
substantial likelihood of irreparable misidentification," id. at 289.
In applying that standard, we recognize the trial court no longer has the
option to fashion an appropriate jury charge to explain how the jury should
assess the impact of the hallway identification on the victim's memory and her
subsequent in-court identification. See R. 3:11(d) (offering trial courts
A-4644-17T1
42
multiple remedies for failures to record identification procedures, including the
fashioning of appropriately tailored jury instructions). If the trial court
determines that identification evidence should not have been admitted without
an appropriate jury instruction, it shall vacate the convictions and order a new
trial.
X.
Defendant contends for the first time on appeal that Detective Bucci
violated his Confrontation Clause rights by relaying inadmissible hearsay
concerning the description of the suspect developed from the State's
investigation. The electronic recording of the photo array identification
procedure was played to the jury. In that recording, Detective Bucci told the
victim the photo array was developed based on "information[] [that had] been
coming in from different sources." 16 Detective Bucci also testified at trial that
after speaking with various witnesses and viewing the surveillance video
recording of the robbery in the course of his investigation, he developed a
description of the suspect as a "[w]hite male, scruffy face, . . . unshaven look.
He was about six foot two, thin build and obviously we had a clothing
description."
16
In Section VI of this opinion, we have addressed defendant's contention the
detective's statement to the victim concerning "other sources" improperly
suggested to her that a photograph of the robber was in the array.
A-4644-17T1
43
In State v. Branch, the New Jersey Supreme Court acknowledged "[t]he
Confrontation Clause does not condemn all hearsay." 182 N.J. 338, 349
(2005) (citing Crawford v. Washington, 541 U.S. 36 (2004)). "A defendant's
confrontation right must accommodate 'legitimate interests in the criminal trial
process,' such as established rules of evidence and procedure designed to
ensure efficiency, fairness, and reliability of criminal trials." Ibid. (quoting
State v. Garron, 177 N.J. 147, 169 (2003)). The Supreme Court draws the line
between admissible testimony and testimony that violates the Confrontation
Clause at the point where the testimony either directly incriminates a
defendant or creates an "'inescapable inference' that an unavailable source has
implicated the defendant." State v. Medina, ___ N.J. ___ (2020) (slip op. at
24) (quoting State v. Bankston, 63 N.J. 263, 271 (1973)).
After carefully reviewing the record, we conclude that neither Detective
Bucci's live trial testimony nor the electronically recorded explanation he gave
during the photo array procedure improperly conveyed to the jury that he
"possesse[d] superior knowledge . . . that incriminates . . . defendant." Branch,
182 N.J. at 351. Although greater care might have been taken to ensure that
the detective did not impliedly suggest there were other unspecified "sources"
of information besides the store surveillance video and the witnesses who
testified, his testimony did not create an "inescapable inference" that an
A-4644-17T1
44
unavailable source had implicated the defendant. Medina, ___ N.J. at ___ (slip
op. at 24) (quoting Bankston, 63 N.J. at 271). Furthermore, his brief reference
to "different sources" does not rise to the level of plain error under Rule 2:10-
2. Defendant's decision not to lodge a contemporaneous objection to the
detective's testimony supports that conclusion. See State v. Tierney, 356 N.J.
Super. 468, 481 (App. Div. 2003) ("Defendant's failure to 'interpose a timely
objection constitutes strong evidence that the error belatedly raised . . . was
actually of no moment.'" (quoting State v. White, 326 N.J. Super. 304, 315
(App. Div. 1999))).
XI.
We next address defendant's contention that Detective Bucci
impermissibly intruded upon the jury's province as factfinder by identifying
defendant at trial as the perpetrator shown in the store surveillance video.
Defense counsel objected to the detective's statement, and the court gave the
following curative instruction:
[T]he video speaks for itself. You are the judges of
the facts in this matter and you should draw your own
conclusions as to what that video shows and you
should disregard any conclusions that Detective Bucci
may have made . . . during his narrative regarding
what that video shows.
We agree with defendant that Detective Bucci's lay opinion testimony as
to what was shown in the video was improper and should not have been
A-4644-17T1
45
admitted. We nonetheless conclude the trial court's timely instruction cured
any prejudice resulting from the detective's opinion as to who was depicted in
the video recording played to the jury.
Defendant further argues for the first time on appeal that the detective
compounded the initial error when he again identified defendant as the robber
in still photographs taken from the video. Detective Bucci also commented
that a "mustache" was visible on the robber in one of the screen shots. This
time, defense counsel did not object.
The detective should not have been permitted to offer his opinion with
respect to what was depicted in the screen shots admitted into evidence for the
same reason his opinion testimony was inappropriate with respect to the video.
We nonetheless are satisfied that the court's curative instruction made clear to
the jury it was for them to decide what the store security recording showe d,
whether viewed as a motion picture or as a series of selected still frames. The
jurors were able to inspect the photographs themselves and decide "whether
the person in [the] photograph [was] . . . defendant." State v. Lazo, 209 N.J. 9,
23 (2012). Accordingly, we do not believe the detective's testimony relating to
the screen shots constitutes plain error capable of producing an unjust result,
especially given the absence of a request for a supplemental curative
instruction. R. 2:10-2.
A-4644-17T1
46
XII.
We turn next to defendant's contention the trial court improperly
precluded defense counsel from asking Detective Bucci about a statement that
had been made to him by the customer in the Dollar Tree store. The
eyewitness to the robbery told the officer he had observed a sedan leaving the
parking lot.17 The trial judge rejected defendant's argument the statement was
admissible as an excited utterance under N.J.R.E. 803(c)(2). We conclude the
trial judge acted within his discretion in excluding this hearsay statement. See
State v. Scott, 229 N.J. 469, 479 (2017) ("[T]he decision to admit or exclude
evidence is one firmly entrusted to the trial court's discretion." (alteration in
original) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.
369, 383–84 (2010))).
An excited utterance is defined as "[a] statement relating to a startling
event or condition made while the declarant was under the stress of excitement
caused by the event or condition and without opportunity to deliberate or
17
Defendant contends evidence concerning the sedan leaving the parking lot
is exculpatory because police believed defendant used a large SUV while
committing other burglaries. However, defendant did not present this
argument to the jury even though dashcam video played to the jury showed a
sedan leaving the parking lot when police arrived in response to the 9-1-1 call.
We presume this was a tactical decision by the defense not to place before the
jury that defendant was a suspect in other burglaries.
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fabricate." N.J.R.E. 803(c)(2). In determining whether a declarant had the
opportunity to deliberate,
we look to a number of factors, including the shock
effect of the [robbery], the time elapsed between that
event and [the] statement, the continuing influence of
the excitement caused by the [robbery], the
circumstances surrounding the taking of the statement,
and whether the statement was in response to
questions.
[Branch, 182 N.J. at 366 (citing Riley v. Weigand, 18
N.J. Super. 66, 73 (App. Div. 1952)).]
The trial court found the customer relayed the information to the officer
at least seven minutes after the robbery and after other officers had the
opportunity to speak with him. We find no abuse of discretion in the trial
court's finding that the seven-minute period of delay was sufficient to provide
the eyewitness with the opportunity to deliberate. See id. at 344, 366–67
(concluding that a ten-minute delay between a burglary and robbery and a
statement provided sufficient opportunity to deliberate); Gonzales v.
Hugelmeyer, 441 N.J. Super. 451, 458 (App. Div. 2015) (excluding a
statement made at least "several minutes" after an accident); State v. Belliard,
415 N.J. Super. 51, 88 (App. Div. 2010) (affirming the court's exclusion of a
statement made four to five minutes after an exciting event).
We add that defendant's contention that he was prejudiced by the trial
court's decision to exclude the hearsay statement is meritless because that
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48
statement would merely have corroborated the dashcam video recording that
showed a sedan leaving the Dollar Tree parking lot. See supra note 17.
Accordingly, the trial court's evidentiary ruling did not preclude counsel from
arguing that defendant did not commit the robbery because he drove a large
SUV rather than a sedan.
XIII.
A.
Defendant challenges his twenty-five-year extended-term sentence on
several grounds. He first contends the trial court erred in relying on the
presentence report to establish that he was eligible for an extended term as a
persistent offender under N.J.S.A. 2C: 2C:44-3(a).18
As a general matter, we review sentences under an abuse of discretion
standard. State v. Pierce, 188 N.J. 155, 166 (2006). Whether a defendant
meets the statutory eligibility criteria for an extended-term sentence, however,
is a question of law we review de novo. Ibid.
18
Pursuant to N.J.S.A. 2C:44-3(a), a defendant qualifies for an extended term
as a persistent offender if he or she is more than twenty-one years old at the
time of the instant offense, "has been previously convicted on at least two
separate occasions of two crimes, committed at different times, when he was at
least [eighteen] years of age," and "the latest in time of these crimes or the date
of the defendant's last release from confinement, whichever is later, is within
[ten] years of the date of the crime for which the defendant is being
sentenced."
A-4644-17T1
49
The trial court found defendant eligible based on his age at the time of
the present offense (fifty-two years old) and his record of at least two predicate
convictions,19 specifically a conviction for second-degree aggravated assault in
1989 and a conviction for second-degree robbery in 2004. 20
Defendant is hard-pressed on appeal to challenge his eligibility for the
persistent offender extended term given that counsel acknowledged at
sentencing that the requirements set forth in N.J.S.A. 2C:44-3(a) were met.
The trial court asked counsel, "Do you agree that . . . under the statute . . . that
[defendant] just based on his predicated offenses . . . meets the . . . time
limitations, the predicate offenses and the age requirement?" Defense counsel
responded, "Yes, your Honor. . . . He is over [twenty-one] clearly and he does
have the predicate offenses necessary for the discretionary extended term."
Counsel clarified that the defense argument was not that defendant was
ineligible for an extended term as a persistent offender, but rather that the
court should exercise its discretion and refrain from imposing an extended
19
The trial court noted there were more than two predicate offenses listed in
defendant's presentence report. Indeed, the court noted defendant has a total of
forty-one adult criminal convictions.
20
Defendant's conviction in October 2004 for second-degree robbery resulted
in a five-year term of imprisonment with a four-year, three-month term of
parole ineligibility. Thus, defendant was released sometime in 2009,
establishing that he was last released from confinement within ten years of the
commission of the present offenses in January 2016.
A-4644-17T1
50
term. We conclude defendant meets the definition of a persistent offender.
We also believe the sentencing court did not abuse its discretion in sentencing
defendant within the extended term range.
B.
We turn next to defendant's contention that the sentencing court abused
its discretion in finding and weighing the applicable aggravating and
mitigating factors set forth in N.J.S.A. 2C:44-1. Specifically, defendant
contends the court erred in ascribing weight to aggravating factor three (risk
that defendant will commit another offense) based in part on defendant's
history of substance abuse. Defendant also contends the sentencing court
should have found mitigating factors nine (character and attitude of defendant
indicate he is unlikely to commit another offense) and eleven (imprisonment
would entail excessive hardship to defendant or his dependents) because of his
health problems and his status as a father.
As we have already noted, a trial court's sentencing determination is
entitled to deference. In State v. Fuentes, the Court explained:
The appellate court must affirm the sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
A-4644-17T1
51
[ 217 N.J. 57, 70 (2014) (alteration in original)
(quoting State v. Roth, 95 N.J. 334, 364–65 (1984)).]
The record shows the sentencing court found a risk of recidivism under
aggravating factor three based on defendant's substance abuse history, his
history of employment, and his extensive criminal record. We do not believe
the court erred in considering defendant's history of substance abuse as
indicating the likelihood that he would continue to commit offenses. But even
putting aside the correlation between substance abuse and criminal behavior,
the lengthy list of defendant's prior criminal convictions for burglary, theft,
receiving stolen property, and robbery amply supports the court's decision to
assign "very heavy weight" to aggravating factor three.
We likewise reject defendant's contention the trial court abused its
discretion in declining to find mitigating factors nine and eleven. As to
mitigating factor nine, the court was unpersuaded by defendant's contention
that his poor health (defendant had heart surgery in 2015 and is at risk of a
heart attack in the future) and mature age (defendant was in his mid-50s at the
time of sentencing) demonstrate a low risk of recidivism. The sentencing
court aptly noted defendant's health issues existed at the time of the instant
offenses and did not prevent him from committing a first-degree robbery. We
add that defendant's latest crime was by no means a youthful indiscretion. He
A-4644-17T1
52
was fifty-two-years old when he committed the armed robbery. There is no
reason to believe defendant has outgrown his penchant for criminality.
As to mitigating factor eleven, the court rejected defendant's argument
that imprisoning him would pose an undue hardship based on his poor health
and his status as a father of three children between the ages of eight and nine.
The court found that defendant had presented no evidence that our State's
prison system could not provide adequate care for his heart condition. See
State v. M.A., 402 N.J. Super. 353, 372 (App. Div. 2008) (holding the court
did not err in failing to address mitigating factor eleven when the defendant
"was functioning at a reasonable level; he was undergoing active treatment;
and there was nothing in the record indicating his needs could not be
adequately met in prison" (emphasis added)). We also find unpersuasive
defendant's argument about the hardship imprisonment would cause his family.
As the sentencing court noted, defendant's extensive history of incarceration
has prevented him from acting as a residential custodian and from supporting
his children.
We likewise reject defendant's contention the twenty-five-year aggregate
sentence is manifestly excessive or shocks the judicial conscience. State v.
Case, 220 N.J. 49, 65 (2014) (refusing to second-guess the sentencing court,
"provided that the sentence does not 'shock the judicial conscience" (quoting
A-4644-17T1
53
Roth, 95 N.J. at 365)). To the contrary, we believe the sentence imposed is
appropriate in view of defendant's extensive criminal history and the manner in
which he terrorized the present victim with a knife.
XIV.
To the extent we have not already addressed them, any additional
arguments raised by defendant in his counseled and pro se briefs lack
sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).
We remand for the trial court to conduct a new evidentiary hearing and
to make findings of fact and law consistent with sections VIII and IX of this
opinion. If, for example, the court concludes, considering all applicable
system variables, the victim's in-court identification was tainted and should not
have been introduced, or that it should only have been introduced with
appropriately tailored instructions to the jury, the court shall vacate the
convictions and order a new trial. In all other respects, we affirm defendant's
convictions and sentence.
Affirmed in part and remanded. We do not retain jurisdiction.
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54
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