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November 7, 2014


Argued September 23, 2014 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-07-0630.

Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief).


Tried by a jury, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and acquitted of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). The trial judge sentenced defendant as a persistent offender to life without parole for first-degree robbery, pursuant to N.J.S.A. 2C:43-7.1(a).

On appeal, defendant raises the following contentions for our consideration.


A. The Trial Judge Erred in Admitting an Irreparably Suggestive Show-Up Identification.

B. The Trial Court Erred in Excluding Expert Testimony on Eyewitness Identification, Which Has Been Recognized as Scientifically Valid and Of Aid to the Trier of Fact.


A. The Prosecutor Committed Misconduct When She Argued In Summation That The Third-Party Guilt Suspect Would Not Face Charges For The Robbery (Not Raised Below).

B. The Prosecutor Mischaracterized Officer Katula's Testimony And Unfairly Inferred That During The Motor Vehicle Stop Defendant Was Preoccupied With The Gun Concealed In The Car.

We have considered these arguments in light of the applicable law. We affirm.


We discern the following facts from the testimony at trial. On April 21 2007, a man entered a liquor store in Roselle Park shortly before 10:00 a.m. After walking around the store for a few minutes, he approached the counter, asked the store cashier for a six-pack of beer, then pulled out a handgun and demanded money from the register. The robbery victim refused and hit the panic alarm button. The robber immediately fled. The victim ran after him and observed the robber get into a silver Dodge Neon.

The Roselle Police arrived a few minutes later. The victim told the police that the robber was an African American man, between 30 and 40 years old, with a medium build, about five-feet-eight to five-feet-ten, wearing a green shirt, blue pants, a hat, and carrying a blue bag. He also described the gun and provided the robber's license plate number.

After determining that the suspect's car was registered to an Edison resident, the police contacted Edison police for assistance. Within minutes, the Edison police located the vehicle, unoccupied, in front of an apartment complex. After about ten minutes, Edison Police Officer Gerry Katula observed a man enter the car and drive away; several other officers immediately pulled over the vehicle. Defendant was removed from the car and arrested at 10:55 a.m. The police searched the vehicle incident to the arrest and found a green shirt on the front seat, a black skull-cap hat in the rear passenger seat, and a blue bag and a handgun on the back passenger-side floor.

Upon learning a suspect was apprehended, Roselle Park Detective Richard Cocca told the victim that the vehicle and suspect had been located in Edison, and he needed to go to the scene in order to make a positive identification. They arrived at the scene at 11:48 a.m. The victim stood in front of the Roselle Park police car, and police removed defendant, who was handcuffed, from the back of the Edison police car. Several policemen were present, some with tactical rifles, as the arrest of defendant had drawn a hostile crowd. When the victim saw defendant, he immediately responded, "that's him." According to Cocca, the victim had "absolutely no doubt" that defendant was the robber, "there was no second-guessing and there was no other communication other than . . . that's him."

Suzette Bethea, defendant's sister and the owner of the vehicle, testified that she lived in Edison with defendant and her then eighteen-year-old son James.1 According to her testimony, at about 10 a.m., she noticed her car was not parked where she left it and her spare key was gone. She believed that her son James may have taken the car without permission, as he had previously done. Since she suspected James might have driven it to the nearby housing complex, his usual hang-out spot, she asked defendant to walk over there and retrieve the car.

Defendant's nephew James testified that he borrowed his mother's car whenever his car was not working. He could not recall if he took the car on the day of the robbery but denied any involvement in the robbery. At the time of defendant's trial, James was serving a prison sentence for a 2008 robbery he committed using his mother's car. He acknowledged that if he admitted to committing the subject robbery, he would be exposed to additional charges and punishment.

Prior to the trial, in 2009, the court held a Wade2 hearing, where he testified in accord with his report to the police. He was unable to identify defendant as the robber at that hearing.3 The court determined that the victim's identification of defendant was admissible at trial. The trial judge heard and granted the State's motion to bar a defense expert's testimony on the subject of eyewitness identification. After a multiday trial, the jury found defendant guilty on the armed robbery and weapons charges. At sentencing, the trial judge merged count one with count two and sentenced defendant to life without parole for first-degree robbery, pursuant to N.J.S.A. 2C:43-7.1(a). On the third-degree unlawful possession of a weapon conviction, the judge sentenced defendant to five years with a two-and-a-half year period of parole ineligibility, which was to run concurrently to count one and two. This appeal followed.


Defendant first argues that the victim's out-of-court identification was not sufficiently reliable, and therefore, the identification should not have been admitted.4 Specifically, defendant points to the State's concession that the procedures used in this case were impermissively suggestive. Defendant contends the trial court improperly applied the five reliability factors set forth in the Manson/Madison test when admitting the identification as reliable. Defendant urges us to hold that the judge should have used the social science studies contained in the Special Master's report prepared for the Supreme Court in Henderson to reject the Manson/Madison reliability factors. We do not agree.

At the time of defendant's Wade hearing and trial, the admissibility of out-of-court identifications was analyzed under the two-step test set forth in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), as adopted by our Supreme Court in State v. Madison, supra, 109 N.J. 223, 232-33 (1988), abrogated in part by Henderson, supra, 208 N.J. at 285-93. Under the Manson/Madison test, the court must first determine whether the identification procedure was "in fact impermissibly suggestive." Madison, supra, 109 N.J. at 232. The preliminary inquiry must be "'whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)).

If the court finds the procedure was impermissively suggestive, it must then decide whether the procedure resulted in "a substantial likelihood of irreparable misidentification." Farrow, supra, 61 N.J. at 450-51. In this prong, the court focuses on whether, despite the impermissibly suggestive procedure, the facts sufficiently prove the identification was reliable. Adams, supra, 194 N.J. at 203. See also Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154 ("[R]eliability is the linchpin in determining the admissibility of identification testimony. . . .").

The reliability determination is reached by analyzing the totality of the circumstances, including: (1) the witness's opportunity to view the criminal during the commission of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the witness's level of certainty at the time of the identification; and (5) the time between the crime and the identification. Madison, supra, 109 N.J. at 239-40 (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). "If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness's identification is reliable, then the identification may be admitted into evidence." Adams, supra, 194 N.J. at 204 (citing State v. Herrera, 187 N.J. 493, 503-04, (2006)).

A reviewing court affords substantial deference to a trial court's factual findings. State v. Locurto, 157 N.J. 463, 472 (1999). "[T]he trial court's findings at the hearing on the admissibility of identification evidence are 'entitled to very considerable weight.'" Adams, supra, 194 N.J. at 203 (quoting Farrow, supra, 61 N.J. at 451).

Defendant argues that the facts do not show that the identification was reliable. In particular, defendant contends that the victim only provided a vague description of the robber, at the Wade hearing two police officers differed in their testimony as to how far away the victim was when identifying defendant,5 and a photo taken immediately after the arrest showed that defendant had a mustache and a beard, despite the victim never mentioning facial hair in his description. Defendant further points out that the victim testified the suspect was in the store for only two minutes before he pulled the gun, and then immediately fled. Defendant noted that under Madison, supra, 109 N.J. at 244, the indicia of reliability is lacking where the witness views the suspect "for no more than three minutes[.]"

The court agreed that the identification was impermissibly suggestive. However, after weighing the totality of the circumstances and applying the five-factor Manson/Madison reliability test, the court determined the identification was sufficiently reliable and therefore admissible at trial. The judge reasoned that the victim had the composure to push the panic alarm, run after defendant, get an accurate description of the vehicle, and write down the license plate number. The judge found that these activities strongly suggested that the victim was not likely confused about the identification.

The judge also found indicia of reliability in that the show-up occurred within two hours of the incident, the victim immediately identified defendant without any uncertainty, the distance discrepancy between the victim and defendant at the show-up was minor, and nothing obstructed defendant's view of defendant. Regarding the facial hair inconsistency, the judge noted that defendant's photograph on the day of his arrest did not necessarily show a beard and a mustache; rather, it looked like a few day's growth. Hence, the judge concluded it was insignificant that the victim did not report this as a beard. Accordingly, the judge found, based on the totality of circumstances, the victim's identification was sufficiently reliable.

Here, the judge properly applied these principles in determining that the out-of-court identification was sufficiently reliable. We must reject defendant's claim that the judge should have determined reliability based upon the social science data in the Henderson Special Master's report as Henderson made it abundantly clear that the new framework only applied to future cases. Henderson, supra, 208 N.J. at 302. The judge thoroughly addressed the five Manson/Madison reliability factors, noting that the victim's initial description of the suspect, his clothing, bag and gun, and the license plate number were very detailed and matched what was later discovered. Consequently, as the judge's decision is supported by sufficient credible evidence in the record, the admission of the out-of-court identification was an appropriate use of discretion. See Locurto, supra, 157 N.J. at 470-71; see also Adams, supra, 194 N.J. at 203.

We reject defendant's argument that the identification was also flawed, because contrary to the mandate of State v. Delgado, 188 N.J. 48, 63 (2006), the police did not record a verbatim account of the exchange between law enforcement and the victim and did not provide a detailed summary of the identification. The judge found that the officer's failure to comply with Delgado was insignificant under the totality of the circumstances because a supplemental report had been written and a two day Wade hearing was held where defendant had an opportunity to cross-examine all the witnesses to the identification. We are satisfied, despite the deficiencies in the initial police report, defendant received full discovery of the identification procedure, and the trial court's refusal to exclude the identification on this basis was not an abuse of discretion. See Delgado, supra, 188 N.J. at 51.


Defendant next contends that the trial judge's decision to exclude defendant's expert on eyewitness testimony deprived defendant of his right to present a complete defense. Defendant maintains that the victim's show-up identification was the crux of the State's case, and the jury's initial report that it could not reach a verdict shows that the jury had doubts about the identification. Defendant submits that in seeking to admit his expert to testify about factors that affect the reliability of identifications, he was simply asking the court to do what has ultimately been required by Henderson, supra, 208 N.J. at 219, in the form of enhanced jury charges that sensitize the jury to those same factors.

In denying defendant's request for his proposed expert to testify, the judge reasoned that under N.J.R.E. 702 expert testimony is unnecessary when the subject can be understood by jurors utilizing common judgment and experience and that credibility determinations are uniquely within the province of the jury. The judge observed that in State v. Long, 119 N.J. 439, 495-96 (1990), a proffered defense expert in the subject of eyewitness identification was held to be properly excluded as the defendant there failed to establish that the subject was beyond the ken of the average juror.

The judge acknowledged that the Special Master appointed in Henderson had issued a report expressing concern about the accuracy of eyewitness identification. He recognized that defendant's expert intended to opine on similar problems of eyewitness identifications in areas such as "time estimation, deleterious effects of stress on memory, stress-induced retrograde amnesia, weapon focus, exposure duration, cross-race identification, suggestion, and memory." The judge found, however, that the Supreme Court had not yet adopted the Special Master's findings, and accordingly, the law set forth in Long was controlling.

Moreover, the judge determined that defense counsel would have the opportunity to vigorously cross-examine the witness regarding the identification and the jury would be able to judge the witnesses' credibility on identification. The judge found that defendant's proposed expert's report contained "very little in the way of specifics in regard to this case. It's helpfulness to the jury and general relevance is dubious."

In general, expert testimony may be admitted to "assist the trier of fact to understand the evidence or to determine a fact in issue[.]" N.J.R.E. 702. For expert testimony to be admitted it must meet three criteria

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[State v. Jenewicz, 193 N.J. 440, 454 (2008).]

At the time of the State's motion to exclude defendant's expert, the admissibility of expert testimony on eyewitness identification was guided by Long, supra, 119 N.J. at 495-96. There, the Supreme Court concluded that the trial court did not abuse its discretion in excluding expert testimony on eyewitness identification because

The proffered testimony was not clearly helpful to the jury's assessment of either the reliability of [the witness's] eyewitness identification or the effect of his seeing defendant's photograph in the newspaper. [The witness's] testimony was amply tested on cross-examination, and defendant failed to demonstrate that the subject matter (problems of eyewitness identification) was beyond the ken of the average juror.

[Id. at 496 (internal citations omitted)]

"[A]n abuse-of-discretion standard of review applies to the resultant admissibility determination made by the trial court." Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008) (citing Carey v. Lovett, 132 N.J. 44, 64 (1993)).

Contrary to defendant's argument that the judge misconstrued Long, the trial judge reasonably relied on its principles in determining that defendant's eyewitness identification expert should be precluded from testifying. The judge fully explained his reasoning and his decision was consistent with the law at the time of defendant's trial. We reject defendant's argument that the judge should have applied the studies relied on in the Special Master's report as the Supreme Court had not yet issued its ruling, which, in any event, was prospective only. Thus, the judge's decision was not "made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal citations omitted). Accordingly, the judge did not abuse his discretion in excluding defendant's expert. See Hisenaj, supra, 194 N.J. at 16.


Defendant next argues that the prosecutor's summation exceeded the bounds of propriety. Specifically, defendant challenges as unduly prejudicial, statements made by the prosecutor about Bethea's testimony concerning James and about a police officer's testimony. We do not agree.

It is well settled that "a prosecutor is afforded considerable leeway to make forceful arguments in summation." State v. Bradshaw, 195 N.J. 493, 510 (2008) (citing Bender v. Adelson, 187 N.J. 411, 431 (2006)). However, "prosecutors should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Reddish, 181 N.J. 553, 641 (2004) (internal citations omitted).

"[The] central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence[.]" United States v. Robinson, 485 U.S. 25, 33, 108 S. Ct. 864, 869, 99 L. Ed. 2d 23, 32 (1988) (citation omitted). The reviewing court "'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo'" to determine if the prosecutor's remarks were made as a measured response in an attempt to "'right the scale.'" State v. Engel, 249 N.J. Super. 336, 379 (App. Div. 1991) (quoting United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)). A prosecutor's comments will require reversal only when the conduct was "clearly and unmistakably improper" and "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Wakefield, 190 N.J. 397, 438 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

"Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999) (citing State v. Ramseur, 106 N.J. 123, 323 (1987)). The lack of a timely objection indicates that at the time they were made defense counsel did not believe the remarks were prejudicial thereby preventing the court from taking curative action. Ibid. (citing State v. Irving, 114 N.J. 427, 444 (1989)).

Defendant asserts that in his summation the prosecutor mislead the jury by implying that James would not face charges for the robbery even though his mother's testimony implicated him as the robber. Defendant asserts that the remarks violated the prosecutor's duty to confine summation to the facts presented at trial and completely undermined defendant's third-party-guilt defense.

During summation, defense counsel argued that Bethea was not lying to help her brother because "her testimony essentially is beginning to point [to] . . . her son. So is she really that biased toward her brother at the expense of her son?" The prosecutor later made the following remarks when referring to Bethea's testimony

[W]hy would she lie for her brother and throw her son under the bus? . . . why would she cas[t] suspicion on him? Why would she do that? It's very simple[,] her son is in absolutely no jeopardy whatsoever, by Suzette Bethea getting on that stand and saying well, my son could have had the car, and he sometimes drove the car. What teenager doesn't drive his mom's car. What jeopardy is she putting her son in, because James Bethea can't remember where he was on April 21st, 2007? . . . Do you think that Suzette Bethea would actually cas[t] these suspicions on her son if she thought for a second that they were true, if she thought for a second they could hurt him? Absolutely not.

. . . .

And the only reason why she would come up with this story is because she knows it can only help her brother if you believe it. It can't hurt her kid.

Defendant did not object to the prosecutor's remarks.

Here, the prosecutor's remarks in summation were not clearly and unmistakably improper and did not prejudice defendant's right to a fair trial. Wakefield, supra, 190 N.J. at 438. The prosecutor's remarks were reasonable inferences drawn from the evidence provided at trial. See Bradshaw, supra, 195 N.J. at 510. Bethea's testimony implied that her son might have had the car that morning, but stopped short of providing any evidence whatsoever that would actually link him to the robbery. No reasonable juror could infer that the prosecutor was suggesting she had special knowledge about James' potential "jeopardy." The prosecutor's remarks that Bethea did not "throw her son under the bus" because her testimony was insufficient to put her son in jeopardy of being charged with robbery is a reasonable inference based on Suzette's testimony. See Bradshaw, supra, 195 N.J. at 510.

Furthermore, the prosecutor's remarks in this regard were a fair and measured response to defendant's closing remarks stating that Bethea must be telling the truth, because a mother would never put her own child at risk of imprisonment by lying for her brother. See Engel, supra, 249 N.J. Super. at 379. Moreover, defendant did not object to these remarks, which indicates that counsel did not believe they were prejudicial at the time they were made. See Timmendequas, supra, 161 N.J. at 576.

Additionally, defendant contends that the prosecutor's summation prejudicially mischaracterized Officer Katula's testimony that defendant, while sitting in the car after being pulled over "kept looking to the right," by suggesting that defendant was actually looking toward the back seat where the gun was hidden. Defendant argues that this was not a legitimate inference to be drawn from the testimony, as the testimony does not state that defendant was looking in the back seat at all.

During closing statements, the prosecutor argued, "when Officer Katula and Sergeant Marino pulled the defendant over, why was he looking in the back right-hand seat of the car? Why was he looking there? Where was the gun found, ladies and gentlemen? In the back right-hand floorboard of the car." Defendant did not object to these remarks. In our view, this remark was a legitimate comment on the evidence. Furthermore, even if the remarks could be deemed somewhat improper, defendant's failure to object demonstrated that counsel did not find those remarks to be prejudicial and it deprived the judge of the opportunity to cure any prejudice. Consequently, these remarks should not be the basis of reversal. See Timmendequas, supra, 161 N.J. at 576.


1 We will refer hereafter to Bethea's son by his first name to avoid confusion. We mean no disrespect.

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

3 Defendant also did not identify defendant at the 2011 trial.

4 The Supreme Court significantly revised the rules governing out-of-court identification procedures in State v. Henderson, 208 N.J. 208, 285-93 (2011). Those provisions do not apply here, however, because defendant's trial occurred before Henderson and the decision is not retroactive. Id. at 302.

5 One stated it was about ten feet, whereas the other stated it was twenty-five to thirty feet.