STATE OF NEW JERSEY v. DAQUAN R. BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAQUAN R. BROWN,

Defendant-Appellant.

______________________________________

August 14, 2014

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-09-0885.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 

Defendant Daquan R. Brown appeals from his conviction, after a jury trial, on one count of first-degree robbery, N.J.S.A. 2C:15-1; one count of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); one count of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); and one count of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was also charged with one count of second-degree witness tampering, N.J.S.A. 2C:28-5(a), which the State withdrew after the jury deadlocked on that count. Before trial, defendant unsuccessfully moved to suppress the victim's out-of-court identification of defendant. At sentencing, the court merged the theft, assault and weapon counts into the robbery count and imposed a fifteen-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on that count. The court also imposed appropriate penalties and assessments. Defendant filed this appeal. Having considered defendant's arguments in light of the record and controlling law, we affirm.

The State developed the following facts at an evidentiary Wade1 hearing, at which Detectives Otis Wood and Brian Jones of the Trenton Police Department testified.

On the afternoon of the incident, Wood was assigned to investigate the armed robbery of Mr. James. A witness and James were brought into headquarters by another officer who told Wood that defendant was a likely suspect, in that the "victim's brother gave him a possible name of the suspect based on the victim's description to him." Defendant contends, and the prosecutor agrees, that the brother's statement was made in the presence of James, prior to James being brought to headquarters. However, when James made the identification, he did not state defendant's name. Also at trial, James testified that he did not tell the police or anyone that he had previously seen the robber until after he saw defendant's photograph.

At headquarters, Wood commenced taking a statement from James. At some point, Wood asked James to go to a computer terminal to view some pictures of individuals. Based on James' description of the suspect, Wood entered descriptors into the computer: race, height, weight, ethnicity, and age. As Wood testified, "the data base generates approximately thousands of photographs based on the descriptions that I put in for the suspect, in an attempt to identify the suspect." Wood advised James "that the suspect may or may not be in the photographs. Take [your] time, look through each photograph, as much time as [you need]. And if [you are] able to identify anyone, let me know." Eight unidentified photographs appear on each single screen and James could proceed to the next screen by clicking the mouse. Wood left James at the computer terminal "cycling through the photographs."

After approximately twenty-five minutes, James called Wood over to the computer terminal. He pointed to an individual on the screen and told him that was the person who robbed him. The picture that James identified as the robber was that of defendant. He did not identify defendant by name, but according to Wood's testimony, James "was pointing to the screen and said, That's him, that's the guy that robbed me." Wood then, in James' presence, "double clicked on the photograph to get the name and date of birth."

Wood testified that he did not instruct James on the procedure of double-clicking to access the name associated with a picture, nor did he see James double-click on any picture. Further, Wood testified that James never indicated that he double-clicked on the defendant's photograph. However, Wood was not present observing James during the computer review of the photographs and therefore could not say "one way or the other whether he ever double clicked on any picture." After making the identification of defendant, James continued to review the computer-generated photographs, but made no further identification.

Outside of James' presence, Wood prepared an eight-photograph array, which included defendant's photograph, and gave it to Detective Jones. Wood prepared the array "to confirm that [James] actually was positive that this was the same guy, and to have it documented with him signing and dating the photograph if he I.D.'d him again." Jones had no knowledge or participation in the investigation and his only involvement was to show the array to James.

Jones did not see the preparation of the array nor did Wood tell him anything concerning the array. Jones also did not know who the suspect was. Outside of Wood's presence, Jones instructed James that he was going to show him eight photographs, one at a time, and "that the suspect may or may not be in these photographs." James identified the sixth photograph as the person who robbed him, which was the same photograph of defendant that the victim identified from the computer photobook. Even though James identified defendant, Jones proceeded to show James the remaining two photographs. Jones had James sign and date photograph number six. Jones then returned the array to Wood.

At the conclusion of the hearing, the judge issued a comprehensive oral opinion concluding that defendant "has not proffered pretrial evidence showing that the police identification procedures utilized were impermissibly suggestive entitling them to a Wade hearing[.]" The judge noted that when the robbery took place, "it was daylight. That the victim, James, had a good view of the suspect as he was being robbed and was able to give a description of the clothing as well as a physical description of this suspect to Detective Otis Wood."

The judge further found that the robbery and James' identification of defendant were "just a few hours apart." The judge recounted the James' review of the computer generated photobooks and the fact that he "positively identified the individual [who] had robbed him a few hours ago." Addressing defendant's contention that, having heard the name of a possible suspect from his brother, the identification was tainted, the judge determined that there was no evidence to support the assertion that James was ever advised that he could double- click to learn the name of any individual, "nor is there any indication that he did this in fact." The court also determined that the identification from the eight-photograph array was not impermissibly suggestive.

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

POINT I

ADMISSION OF THE IMPERMISSIBLY SUGGESTIVE AND INSUFFICIENTLY RELIABLE OUT-OF-COURT IDENTIFICATION OF BROWN BY JAMES, VIOLATED BROWN'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO FOLLOW THE MANDATES OF R. 1:8-8(b) AND PERMITTED THE JURORS TO TAKE NOTES DURING THE READ BACK OF THE TESTIMONY OF STATE'S WITNESSES JAMES AND PAGE. (Not Raised Below).

POINT III

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

In his pro se supplemental brief, defendant raises the following additional points:

POINT I

THE TRIAL COURT ERRED IN ITS ANALYSIS BECAUSE THE STATE FAILED TO FOLLOW THE ATTORNEY GENERAL GUIDELINES AND FAILED TO ESTABLISH ADMISSIBILITY OF THE PROFFERED IDENTIFICATION.

POINT II

LAW ENFORCEMENT FAILED TO MEMORIALIZE THE IDENTIFICATION PROCEDURE CONDUCTED OUT OF COURT ON [VICTIM] IN VIOLATION OF OUR SUPREME COURT'S MANDATE REQUIRING THE EXCLUSION OF SAID IDENTIFICATION.

POINT III

THE IDENTIFICATION BY [VICTIM] WAS COMPLETELY UNRELIABLE AND THEREFORE THE TRIAL COURT ERRED.

POINT IV

AS [VICTIM'S] IDENTIFICATION WAS COMPLETELY UNRELIABLE THE REVIEWING COURT MUST CONSIDER THE IMPERMISSIBLY SUGGESTIVE NATURE OF THE PROCEDURE.

POINT V

THERE IS A SUBSTANTIAL LIKELIHOOD THAT THE IDENTIFICATION BY [VICTM] WAS TAINTED BY THE IMPERMISSIBLY SUGGESTIVE NATURE OF THE PROCEDURE.

Defendant contends that the out-of-court identification of defendant by James was impermissibly suggestive and violated his due process rights. We disagree.

"[S]uggestive police procedures may 'so irreparably taint the out-of-court and in-court identifications' that a defendant is denied due process." State v. Henderson, 208 N.J. 208, 285 (2011) (quoting State v. Madison, 109 N.J. 223, 239 (1988)) (internal quotation marks omitted). A trial court may hold a Wade hearing to determine whether a pretrial identification of a criminal defendant was properly conducted and therefore admissible under N.J.R.E. 803(a)(3), in order to test the identification's reliability and ultimate admissibility. See State v. Michaels, 136 N.J. 299, 319 (1994).

Wade hearings are not automatic in every case in which there is an out-of-court identification. State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). The court must first ascertain whether the identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503-04 (2006). A Wade hearing should be held when a "defendant presents 'some evidence of impermissible suggestiveness' in the identification process." State v. Cherry, 289 N.J. Super. 503, 517 (App. Div. 1995) (citation omitted). Furthermore,

the determination [of impermissible suggestiveness] can only be reached so as to require the exclusion of the evidence where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist.

[Madison, supra, 109 N.J. at 234 (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)).]

If the court finds that the identification procedure was impermissibly suggestive, it must then determine whether the procedure was nevertheless reliable. Herrera, supra, 187 N.J. at 503-04. "The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Ibid.

The factors to be considered in determining reliability include: (1) the opportunity of the eyewitness to view the criminal at the time of the crime; (2) the eyewitness's degree of attention; (3) the accuracy of the eyewitness's prior description of the criminal; (4) the level of certainty demonstrated by the eyewitness at the confrontation; and (5) the length of time between the time of the crime and the confrontation. State v. Adams, 194 N.J. 186, 204 (2008) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). 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, the identification may be admitted into evidence.2 Ibid. (citing Herrera, supra, 187 N.J. at 503-04).

When they are properly utilized for investigatory purposes, photobooks are not unduly suggestive. See State v. Janowski, 375 N.J. Super. 1, 8-10 (App. Div. 2005); Ruffin, supra, 371 N.J. Super. at 391-92. The record shows that the photobooks here were comprised of hundreds of photos organized by gender, race, age, and height only, criteria which constitute a "neutral presentation." Janowski, supra, 375 N.J. Super. at 10 (quoting Ruffin, supra, 371 N.J. Super. at 395).

Defendant argues that James' knowledge of his name was suggestive and that his selection of him was also likely influenced by the fact that James had seen him several times "around town." James' trial testimony is informative. He recounted that he told Wood that the suspect was "light skinned, black male, 20, five foot nine tall, 150" and that "he had teardrop tattoos on his mouth and eyes." In other words, James gave a detailed description of the person who had robbed him at gunpoint only a few hours earlier. Wood also testified at the hearing that James never told him the name of the suspect.

Defendant also contends that the use of the photograph array after the photobook identification was suggestive. The judge stated that the array was used because the police "wanted the victim to be able to write his name and date on the photograph and that could not be done on the computer." The record indicates that Wood printed out the computer-generated photograph and inserted it in the array. Obviously, that picture could have been signed and dated without the use of an array. Defendant contends the array procedure unduly emphasized him as the perpetrator by the repetition, however, we conclude that the use of the array was not impermissibly suggestive.

After reviewing each of the five factors set forth in Adams, supra, 194 N.J. at 204, and applying the facts in the record to each of the factors, the judge concluded that the pretrial identification procedures were not impermissibly suggestive. We agree.

Most significantly, there is no evidence that James' selection of defendant's photograph, after viewing numerous other photographs, was in any way unreliable. Wood did not tell James that the robber would appear in the photographs. Nor did Wood say anything to James while James was viewing the computer-generated photographs. Because Wood made no attempt to influence the victim to choose defendant's photograph, there is no evidence to support the claim that the out-of-court identification was impermissibly suggestive.

In short, there was no evidence that the out-of-court identification procedure at issue here was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968).

Defendant next argues that the trial judge erred in permitting the jurors to take notes during readbacks of the testimony of a witness and James. The jurors requested permission from the court to take notes in connection with the two readbacks. The prosecutor consented and defense counsel left the decision to the discretion of the court. We therefore employ the plain error standard of review as to this point. As called for by Rule 2:10-2, we will disregard the alleged error unless it was of "such a nature as to have been clearly capable of producing an unjust result." See State v. Macon, 57 N.J. 325, 337 (1971). The error must be of such magnitude that it raises "reasonable doubt as to whether [it] led the jury to a result it would otherwise might not have reached." Id. at 336. The judge instructed the jury regarding its note-taking during the readbacks, that it is the juror's recollection of the testimony not what someone else recorded that controls. As in State v. Jumpp, 261 N.J. Super. 514, 527 (App. Div.), certif. denied, 134 N.J. 474 (1993), "[t]here is simply no evidence of confusion, distraction or prejudice caused by juror note-taking in this case which would warrant a reversal of defendant's convictions."

Finally, defendant contends that his sentence is manifestly excessive. Defendant argues his sentence is excessive because the judge placed too much weight on the three aggravating factors the judge found: N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense;" N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;" and N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from violating the law," and did not find any mitigating factors, N.J.S.A. 2C:44-1(b).

The judge found that defendant "ran up to Mr. James, put the barrel of a handgun against his throat," and "told him to give up all his personal belongings[.]" The judge also reviewed defendant's prior juvenile and adult criminal history. After reviewing defendant's presentence report, the judge noted that defendant's physical health is good, but that he suffers from bipolar disorder and takes medication at times.

The court reviewed potential mitigating factors and rejected mitigating factor eight, N.J.S.A. 2C:44-1(b)(8), "[t]he defendant's conduct was the result of circumstances unlikely to recur;" nine, N.J.S.A. 2C:44-1(b)(9), "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense;" eleven, N.J.S.A. 2C:44-1(b)(11), "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents;" and twelve, N.J.S.A. 2C:44-1(b)(12), "[t]he willingness of the defendant to cooperate with law enforcement authorities." The judge found that balancing the aggravating and non-existing mitigating factors that the aggravating factors substantially predominated. The court concluded that under "all the circumstances and weighing the aggravating and mitigating factors, the court finds that this mid-range [sentence] for first-degree offense is appropriate."

Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we review a sentence for abuse of discretion to determine whether: "(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.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

The record contains competent, credible evidence supporting the judge's findings of aggravating and mitigating factors. Defendant had numerous juvenile charges and was adjudicated delinquent on four occasions, including for aggravated assault, N.J.S.A. 2C:12-1(b)(1). As an adult, he had one indictable conviction for obstructing the administration of law, N.J.S.A. 2C:29-1(a). The sentence the judge imposed in this case met the sentencing guidelines, and it does not shock our judicial conscience.

Affirmed.

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

2 In Henderson, supra, 208 N.J. at 288-93, our Supreme Court set forth a modified framework for assessing eyewitness identification evidence. However, the Court specified that the new framework only applies prospectively. Id. at 303. Thus, the Court's 2011 decision does not affect the analysis in this case.