STATE OF NEW JERSEY v. RAHQUAN MANNING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4526-04T44526-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAHQUAN MANNING, a/k/a HAKIM

STEVENSON, WESLEY EAVES,

Defendant-Appellant.

_________________________________________________

 

Submitted December 12, 2006 - Decided March 19, 2007

Before Judges Kestin and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment Nos. 03-01-0206 and 03-02-0524.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Ingrid A. Enriquez,

Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney

for respondent (Mary E. McAnally, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Following a bench trial, defendant, Rahquan Manning, was convicted of first-degree carjacking, N.J.S.A. 2C:15-2, and second-degree robbery, N.J.S.A. 2C:15-1. He was given concurrent sentences of four years on an unrelated charge of third-degree escape, N.J.S.A. 2C:29-5a, to which he had pled guilty, and of ten years on the first-degree carjacking conviction, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2d(10). The robbery conviction was merged and dismissed.

On appeal, defendant argues:

POINT I

THE COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO PRECLUDE THE OUT OF COURT PHOTO IDENTIFICATION OF THE DEFENDANT.

POINT II

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS OF THE ROBBERY AND CARJACKING; CONSEQUENTLY THE CONVICTIONS ON COUNTS ONE AND TWO MUST BE VACATED.

A. The Evidence Was Insufficient to Find a Verdict of Robbery Beyond a Reasonable Doubt.

B. The Evidence Was Insufficient to Find a Verdict of Carjacking [Beyond a] Reasonable Doubt. (Not Raised Below.)

POINT III

DEFENDANT'S CONVICTION MUST BE SET ASIDE AS

THE JURY'S [SIC] VERDICT WAS INCONSISTENT

AND AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV

NO OTHER CONCLUSION CAN BE REACHED BUT THAT

THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE

CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED

DEFENDANT OF A FAIR TRIAL AND WARRANT

REVERSAL.

At trial, Felix Bonet, a victim of defendant's crimes, testified that, at midnight on November 13, 2002, he left work at New Jersey Lawyer's Service by car, dropped off his supervisor at his home, and then drove with his friend and co-employee, Rodrigo DaSilva, to purchase cigarettes. While DaSilva waited in the passenger seat with the motor running, Bonet bought the cigarettes and, upon his return, saw four persons approaching the passenger's side of his car, whom he assumed DaSilva knew. As Bonet attempted to get into the driver's seat, he was accosted by two of the individuals. One asked him whether he was a "Blood" or a "Crip." When Bonet responded that he was neither, the other individual, who wore a grey skullie and carried a Hennessy bottle, either said "cut him" or asked "do you want to cut him," whereupon the questioner grabbed a cigarette out of Bonet's hand, and punched Bonet in the right cheek, causing an injury that was later visible to the police. The assaulter then assisted in forcing DaSilva out of the passenger seat, and the four persons drove away in Bonet's vehicle.

Bonet and DaSilva proceeded to Bonet's nearby residence, called the police and, when they arrived, Bonet provided a description of the individuals as three black males and an Hispanic female, and he gave the license plate number of the carjacked car, which belonged to Bonet's mother and was being driven by Bonet with her permission. Bonet testified that, while at the police station later that night, he was informed that an individual had been found in his mother's car, but that he did not see the person. Bonet was unable to identify any of the four people involved in the carjacking.

DaSilva's testimony generally corroborated Bonet's description of events, although they differed as to who had driven off in Bonet's car. DaSilva testified additionally that, when the individuals approached Bonet, DaSilva attempted to exit the car so as to assist him, but was told by one of the individuals: "No homey. Don't go, Don't go." DaSilva was later forcefully removed from the car by another of the individuals, and five dollars was taken from him. The four then took off in the car. DaSilva described the two individuals who had accosted him to the police by age, height, weight, hair style, and clothing. The person later identified as defendant was described by DaSilva as being a black male with short braids in his early twenties. He was further described as being about five feet eight inches in height, weighing 140 to 150 pounds, and wearing a black sweater with no hood. At trial, DaSilva testified that the person calling him "homey" and driving off in the car was defendant.

When the car was recovered by the police shortly after the carjacking took place, only defendant was present in it. In testimony given at trial, defendant claimed that he had been offered the car by two men that he had met in prison, and that he was using it, without knowledge that it had been stolen, to obtain food for the himself and his two friends. The judge did not credit the testimony given by defendant, who had five prior convictions, and found him to be guilty of carjacking and robbery.

Having reviewed defendant's arguments in light of the evidence adduced at the bench trial, we affirm defendant's conviction, finding none of defendant's arguments to have sufficient merit to warrant discussion in a written opinion with the exception of the identification issue raised in Point I, which we will address below. R. 2:11-3(e)2. In particular, we note that evidence of accomplice liability sufficient to support defendant's conviction for carjacking, the crime for which he was sentenced, was presented. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Williams, 289 N.J. Super. 611, 616-17 (App. Div.), certif. denied, 145 N.J. 375 (1996) (construing N.J.S.A. 2C:15-2a(1)); State v. Taccetta, 301 N.J. Super. 227, 243 (App. Div.) (discussing principles of accomplice liability), certif. denied, 152 N.J. 187, 188 (1997).

Evidence with respect to the issue of identification was offered at a Wade hearing by police detective Luis Hernandez and by DaSilva. Hernandez testified that a photo array procedure was utilized in the identification of defendant by DaSilva that consisted of compiling six photographs of persons matching the description given by DaSilva of defendant; showing them seriatim to DaSilva; obtaining his identification of defendant as depicted in the fifth picture; causing DaSilva to sign, date and provide the time of the identification on the back of that picture; and then obtaining a statement from DaSilva regarding the identification. Hernandez testified further that he was not otherwise involved in the investigation of the incident and was chosen to conduct the photo array procedure because of that lack of involvement. Prior to DaSilva's identification, he did not know who the likely target of the photo array was. Hernandez also testified that he was unaware, at the time of the photo identification, of the fact that defendant had been arrested.

The identification took place approximately two hours after the incident occurred and after DaSilva had assured Hernandez that "[y]eah, hell yeah," he would be able to identify the individuals who accosted him because he had a good memory. According to Hernandez's report, when shown the picture of defendant, DaSilva "automatically" stated: "That's the guy, yep. That's him. I know, I know that for sure."

At the conclusion of the hearing, the trial judge ruled that the photo identification of defendant was admissible, finding that the array itself was not suggestive; adherence to the Attorney General's guidelines had occurred; DaSilva had a "good opportunity" to view defendant at the scene; DaSilva expressed great confidence in his identification; the physical description given by DaSilva of the person driving from the scene basically fit defendant; and the identification occurred only two hours from the time of the carjacking. On this basis, the judge concluded: "There is nothing whatsoever that is suggestible here, and therefore the evidence of identification is certainly admissible."

At trial, DaSilva confirmed that the identification had occurred as described by Hernandez, and he confirmed that his signature appeared on photograph number five. However, on cross-examination, when confronted with his testimony before the grand jury, DaSilva also confirmed that, while at police headquarters, he had been shown an image of defendant, who had by then been apprehended, on the screen of a digital police camera. DaSilva also admitted that the police had told him: "This is the guy that I found in the green Taurus," and that he was asked whether the person was one of the perpetrators. DaSilva was unable to recall whether he was shown the digital image before or after he had made the identification from the photo display. He denied that he had ever seen defendant at police headquarters, whereas defendant stated that not only had he been seen, but that the two had gotten into an argument. In his post-trial findings, the judge acknowledged the use of the digital camera image, but he did not find that this evidence affected the admissibility of DaSilva's identification, which the judge characterized as "very positive" - an observation that the record supports.

On appeal, defendant challenges the trial judge's conclusion in this regard. In evaluating defendant's arguments in light of the record of trial, we will assume that the identification procedures utilized by the police were suggestive, since the record does not permit a conclusion as to whether the digital camera show-up preceded or followed the police's use of a full photo array. State v. Madison, 109 N.J. 223, 232 (1988). However, the record does not support defendant's argument that the procedures resulted in a "'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). In reaching this conclusion, we have focused on the reliability of the identification, and have found such reliability to have been demonstrated, despite the procedures that may have been used on the night in question. Ibid. (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).

Madison holds that a determination of reliability must be based upon the totality of the circumstances and a weighing of "the corruptive influence of the suggestive identification against the 'opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation.'" Id. at 239-40 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 97 L. Ed. 2d at 154).

At the Wade hearing and at the bench trial in this matter, testimony by Hernandez and by DaSilva was sufficient to support the conclusion that DaSilva had a reasonable opportunity to view defendant at the time that the carjacking took place; that he gave a full description of him that included age, hair style, height, weight and clothing; that defendant's appearance conformed to the description; that only two hours passed between the time of the carjacking and the identification; and that DaSilva expressed full confidence in the accuracy of that identification. The trial judge found the testimony of the State's witnesses, including DaSilva, to have been credible, and on that basis determined that the identification was reliable. Although defendant argues to the contrary, we find the record supports the judge's conclusion in that regard, and we decline to disturb it. Locurto, supra, 157 N.J. at 471; State v. Johnson, 43 N.J. 146, 161 (1964).

Defendant's conviction is affirmed.

 

A similar question also may have been asked of DaSilva.

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

(continued)

(continued)

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A-4526-04T4

March 19, 2007