STATE OF NEW JERSEY v. MAYLEEK MCINNIS

NOT FOR PUBLICATION WITHOUT THE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.

MAYLEEK MCINNIS,

Defendant-Appellant.

___________________________

Before Judges Fuentes and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-02-0163.

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

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

PER CURIAM

Defendant appeals from a May 29, 2013 order entered on remandfinding that the State complied with the dictates of Statev. Delgado,188 N.J.48, 58-64(2006) (addressingthe importance of recordation of identification procedures). We affirm.

A Mercer County Grand Jury indicted and charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and -3a(2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Approximately one month after the events giving rise to the charges, defendant confessed to shooting the victim in self-defense. After the judge conducted Wade1 and Miranda2 hearings and denied defendant's motions to suppress his statement and the witnesses' out-of-court identifications, defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and, as part of the plea agreement, the State agreed to dismiss the remaining charges. At the plea hearing, defendant testified, admitting that he shot and killed the victim, and the judge accepted the plea.

Defendant appealed from his conviction and raised for the first time that the State failed to follow the dictates of Delgado regarding two out-of-court identifications. We remanded and directed the judge to address defendant's contention, and, if the judge concluded that the State failed to follow Delgado, to determine whether defendant was prejudiced by that failure. State v. McInnis, No. A-1346-11 (App. Div. Apr. 1, 2013).

In May 2013, the judge followed our instructions and conducted a hearing, took testimony from Detective Gary Britton, and entered the order under review. The judge rendered a written opinion and stated that

[Det. Britton] acknowledged that no verbatim record was made of the identification process on either April 1 or April 30, 2008; however, statements were prepared and signed by the two lay witnesses . . . after their respective . . . identifications on both of those dates. . . .

[Det. Britton] acknowledged the . . . [p]olice headquarters . . . had the capability of preparing an audio and video recording of the witness identifications. While a verbatim record does not exist . . . the court has . . . an accurate summary of the dialogue and interactions between the two witnesses and the neutral detective conducting the photo array. [Det. Britton] was able to both listen and view [from another room] the entire interaction and dialogue by the closed-circuit video recording device employed. The court finds that this accurate summary was made by Det. Britton within hours of the actual event, that is, the crucial identification of the defendant occurred on the morning of April 30, 2008, and Det. Britton testified that he updated his report . . . with the summary

. . . .

. . . .

This summary was consistent with both the testimony provided by the two lay witnesses and theirrespective signedstatements . . . . Accordingly, the court finds defendant did not suffer any prejudice. Although the better procedure would have been for law enforcement to make a verbatim record of the identification procedures, the court finds that the detailed summary is sufficient for purposes of Delgado. Defendant was entitled to discovery and received all of the reports prepared by Det. Britton, as well as detailed statements prepared by their individual witnesses[3] for each of the respective identification procedures of April 1 and 30, 2008.

On appeal, defendant raises the following points:

POINT I

THE COURT ERRED IN RULING THAT THE STATE HAD SATISFACTORILY COMPLIED WITH STATE V. DELGADO.

A. The Court Erroneously Saddled Defendant with the Burden of Proof, Invalidating the Entire Decision.

B. The State Fell Woefully Short of its Obligation to Memorialize the Identification Procedures.

POINT II

DEFENDANT WAS PREJUDICED BY THE STATE'S FAILURE TO COMPLY WITH STATE V. DELGADO.

In Delgado, the Court addressed whether to require the police to record "the details of out-of-court identification procedures that result in positive identifications and non-identifications as well as near misses and hits." Supra, 188 N.J. at 58. The Delgado Court stated that

[w]hen feasible, a verbatim account of any exchange between the law enforcement officer and witness should be reduced to writing. When not feasible, a detailed summary of the identification should be prepared. In the station house where tape recorders may be available, electronic recordation is advisable, although not mandated. Needless to say, the use of a tape recorder will minimize, if not eliminate, dueling testimony recounting what actually occurred at an identification procedure. Tape recording will serve as much to protect the police from claims of improper conduct as it will to preserve evidence. Defendants will be entitled in discovery to any reports or tape recorded statements covering an identification procedure.

[Id. at 63-64 (emphasis added) (footnotes omitted).]

The Court had previously stated that "enforcement authorities should . . . make a complete record of an identification procedure if it is feasible to do so, to the end that the event may be reconstructed in the testimony." State v. Earle, 60 N.J. 550, 552 (1972) (emphasis added).

We agree with the judge that it would have been better had the police made a verbatim record of the identification procedures, especially because the necessary recordation equipment was available. We conclude, however, that the detective's report, together with the signed witness statements, comprised a sufficient written record detailing the out-of-court identifications, including the place where the procedure occurred, the dialogue, and the results. The record reveals Det. Britton composed two eight-picture arrays; the individuals depicted in the arrays resembled defendant (the pictures are part of the record); the identification procedures occurred at headquarters in a witness room; two different detectives showed the arrays to the witnesses separately; and both witnesses were "100 percent" sure that defendant shot the victim.

Finally, there is no credible evidence in this record to suggest that defendant was somehow prejudiced by the absence of a verbatim record. At the outset, we note that this is not an identification case. Defendant confessed to shooting the victim. His purported defense was that he did so in self-defense. There is simply no evidence that defendant was deprived of meaningful discovery or a fair Wade hearing.

After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.

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

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Both witnesses and Det. Britton also testified at the Wade hearing.