STATE OF NEW JERSEY v. JOSEPH R. FOLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5922-04T45922-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH R. FOLEY,

Defendant-Appellant.

______________________________

 

Submitted October 31, 2006 - Decide

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-05-0787.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant, Joseph R. Foley, was found guilty of second-degree robbery, N.J.S.A. 2C:15-1. On April 1, 2005, defendant was sentenced to a term of seven years' imprisonment, subject to an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. All appropriate fees and assessments were also imposed. Defendant appeals his conviction and sentence. We affirm.

At approximately 2:30 a.m. on March 11, 2003, Misha Johnson, on her way home after waitressing at a restaurant in Eatontown, stopped at a Quick Chek convenient store in Woodbridge. The store parking lot was well lit. As Johnson pulled her motor vehicle into the parking lot, she noticed a man twenty-five feet distant, dressed in dark clothing, standing near the corner of the store. Johnson parked her motor vehicle and entered the store. After approximately five minutes, Johnson exited the store and walked toward her motor vehicle while talking on her cellular telephone. As she attempted to unlock her car door, the man she had noticed earlier, later identified as defendant, attacked her from behind. Defendant shoved Johnson against her motor vehicle, struck her, wrestled her to the ground, and took her purse containing $300, before leaving the scene in a motor vehicle. While wrestling with defendant, Johnson made an observation of his face and clothes, identifying the defendant as the same individual she had seen standing near the corner of the store when she pulled into the parking lot.

Upset, Johnson ran into the store, screaming: "Help, help, someone just robbed my purse." After requesting someone to call 9-1-1, Johnson proceeded back to her motor vehicle, drove around looking for her assailant, called the police, and then returned to the store. Patrolmen Ng and Fazio of the Woodbridge Township Police Department responded to the scene, arriving at approximately 2:40 a.m. Although Johnson was upset and crying when first interviewed by Patrolman Ng, she described her assailant as "a white male, approximately five ten, five eleven, medium build, scruffy face, dark clothing, and wearing a black knit cap." After receiving the description of the attacker, the officers put out an alert describing the suspect. In response, Detective Davis of the Woodbridge Police Department arrived at the scene. While Davis spoke to Johnson, Ng and Fazio searched the area for the perpetrator.

Within approximately fifteen minutes, Ng and Fazio located a white male matching the general description of Johnson's attacker and performed a show-up identification by bringing Johnson to view the individual they apprehended. Initially, Johnson stated: "That wasn't the person." However, after approximately thirty minutes, "[s]he couldn't say for sure." Following the show-up, Detective Davis drove Johnson to the Woodbridge Township Police Department and obtained her formal statement. At approximately 11:00 p.m. the same day, Detective Davis requested Johnson to return to police headquarters to view a photographic array containing six pictures, including one of defendant's. Detective Neste administered the photographic array, and upon observing defendant's photo, Johnson immediately became upset and identified him as her attacker. At trial, Johnson made a positive in-court identification of defendant

On appeal, defendant argues:

POINT I.

THE DEFENDANT'S RIGHT TO CONFRONTATION WAS VIOLATED WHEN HEARSAY EVIDENCE WAS PRESENTED TO THE JURY WHICH INDICATED THAT HIS PICTURE WAS PLACED IN THE PHOTO ARRAY BASED ON INFORMATION RECEIVED FROM NON-TESTIFYING WITNESSES. (NOT RAISED BELOW).

POINT II.

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Defendant argues that the trial judge erroneously admitted Johnson's out-of-court photograph identification. Defendant contends that the "State received an improper benefit from this [out-of-court] identification when it was revealed to the jury that the authorities had some outside information which led them to put Mr. Foley's picture in the array." Defendant asserts Detective Davis' testimony that "a suspect was developed," leading to his placement of defendant's picture in the array, permitted the jury to infer that the police had received information from an unknown source implicating defendant in the crime. Defendant further argues that because the only evidence of guilt was Johnson's identification of defendant as the individual who had robbed her, that the improper admission of the out-of-court photographic identification "had the clear capacity to [affect] the verdict." The State counters that "Detective Davis and Detective Neste's testimony concerning the photographic lineup shown to Ms. Johnson was entirely unobjectionable," and that "[t]heir testimony did not infer that they possessed superior knowledge of defendant's guilt." Alternatively, the State asserts that "Ms. Johnson's identification of defendant was so reliable that, if admission of the detectives' testimony was error, it was harmless."

At trial, Detective Davis testified concerning how the photographic array was assembled, after Johnson left police headquarters at 4:30 a.m. on the day of the robbery:

Q: Okay. Does anything else develop with respect to this investigation thereafter?

A: Yes. Later that same day when I returned to work a suspect was developed.

Q: Okay. And based on the continuing investigation, what, if anything, was done?

A: A photo lineup was put together and was shown by Detective Neste.

Q: Okay. And the photo lineup, who put that together?

A: I did.

Q: Okay. And can you describe more specifically what a photo lineup is in general for the jurors?

A: It -- we use six photographs of individuals that all look similar and have similar backgrounds.

Detective Neste testified to the photographic identification:

Q: And what was your involvement in [the] case?

A: I was to show a photo lineup for Detective Davis who was the initial investigator on the incident.

Q: And can you describe for the jurors the procedures that are followed by the Woodbridge Township Police Department with respect to photo lineups?

A: We use a photo display instruction form that is read to the -- to the victim in the case and they are subsequently shown six photographs for identification purposes.

Q: Okay. And you, in fact, did that on this case?

A: That's correct.

Q: And you -- who compiled the photo lineup?

A: Detective Davis.

Q: And had you had any other involvement in this investigation aside from displaying the photo lineup to the victim?

A: I provided Detective Davis with the information about a possible suspect.

Detective Neste also testified to the photo display instructions that he read to Ms. Johnson prior to showing her the array:

In a moment I will show you a number of photographs one at a time. You may take as much time as you need to look at each of them. You should not conclude that the person who committed the crime is in the group merely because a group of photographs is being shown to you. The person who committed the crime may or may not be in the group, and the mere display of photographs is not meant to suggest that our office believes that the person who committed the crime is in one of the photographs. You are absolutely not required to choose any of the photographs and you should not feel obligated to choose anyone. The photographs will be shown in a random order. I am not in any way trying to influence your decision by the order of pictures presented. Tell me immediately if you recognize the person that committed the crime in one of the photographs. All of the photographs will be shown to you even if you select a photograph.

Please keep in mind that hairstyles, beards and mustaches are easily changed. People gain and lose weight. Also photographs do not always show the true complexion of a person. It may be lighter or darker than shown in the photograph. If you select a photograph please do not ask me whether I agree with or support your selection. It is your choice alone that counts. Please do not discuss whether you selected a photograph with any other witnesses who may be asked to look at the photographs.

Because defendant did not object to the detectives' testimony, we review the argument under the "plain error" standard. R. 2:10-2. Although we agree there was no need for Detective Neste to have testified as to why he placed defendant's picture in the photo array, we are satisfied that the admission of the identification was not error, let alone plain error.

"The Sixth Amendment to the United States Constitution, and Article I, Paragraph 10 of the New Jersey Constitution guarantee a criminal defendant the right to confront 'the witnesses against him'" State v. Branch, 182 N.J. 338, 348 (2005) (quoting U.S. Const. amend. VI; N.J. Const., art. I, 10). See also Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 1374, 158 L. Ed 2d, 177, 203 (2004). A defendant's right to test the reliability of testimonial statements is "by testing in the crucible of cross-examination." Id. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. Although "not all hearsay implicates the Sixth Amendment's core concerns," id. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192, "[w]here testimonial evidence is at issue . . . the Sixth Amendment demands . . . unavailability and a prior opportunity for cross-examination." Id. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. "[B]oth the confrontation clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged." Branch, supra, 182 N.J. at 350 (citing State v. Bankston, 63 N.J. 263, 268-69 (1973)). Accordingly, "a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." Id. at 351.

Applying the confrontation clause to out-of-court identifications, the following principles were recently pronounced by the Court:

When a police officer testifies concerning an identification made by a witness . . . what counts is whether the officer fairly arranged and displayed the photographic array and whether the witness made a reliable identification. Why the officer placed the defendant's photograph in the array is of no relevance to the identification process and is highly prejudicial. For that reason, we disapprove of a police officer testifying that he placed a defendant's picture in a photographic array "upon information received." Even such seemingly neutral language, by inference, has the capacity to sweep in inadmissible hearsay. It implies that the police officer has information suggestive of the defendant's guilt from some unknown source.

. . . .

In contexts other than a photographic identification, the phrase "based on information received" may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the use of that phrase does not create an inference that the defendant has been implicated in a crime by some unknown person. The exception would be the defendant who opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive. In such a circumstance, the officer might be permitted to dispel that false impression, despite the invited prejudice the defendant would suffer.

[Id. at 352].

Contrary to the police officer's testimony in Branch that he developed a photographic array based "upon information received," Ibid., Detective Davis' testimony did not contain such an inescapable inference to imply that he "ha[d] information suggestive of defendant's guilt from some unknown source." Ibid. The statement that "a suspect was developed" is ambivalent or innocuous. Detective Neste's testimony that he "provided Detective Davis information about a possible suspect" did not infer that he had knowledge from a third party concerning defendant's guilt. We are satisfied that the testimony of the detectives did not imply why photographs of defendant, or any of the photographs of the five other individuals, were chosen for the array, and does not implicate defendant in the crime based on hearsay.

Defendant argues next that his sentence was excessive. Defendant contends that "the aggravating and mitigating factors in this case militate in favor of a minimum term, given the fact that defendant is subject to the 'No Early Release Act.'" We disagree.

When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court may review and modify a sentence when the trial court's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).

At sentencing, the trial judge found the following aggravating factors: N.J.S.A. 2C:44-1a(3) (risk that the defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). He did not find any mitigating factors. After weighing the factors, the trial judge imposed a term at the middle of the sentencing range, seven years. When making his findings, the trial judge noted defendant had an extensive record, including seventeen juvenile adjudications and two indictable convictions as an adult. We are satisfied that the sentence is not manifestly excessive, nor unduly punitive, and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

Affirmed.

 

The jury never heard testimony concerning the reason why defendant's photograph was placed in the array. At a pretrial N.J.R.E. 104(a) hearing, Detective Neste testified he had received information from another police department that defendant was a suspect for other burglaries and had relayed the information to Detective Davis.

(continued)

(continued)

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A-5922-04T4

December 8, 2006