STATE OF NEW JERSEY v. PAUL D. LEE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1689-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL D. LEE,
Defendant-Appellant.
________________________
Argued February 1, 2022 – Decided April 22, 2022
Before Judges Fisher, Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 18-05-1173.
Margaret McLane, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Margaret McLane, of
counsel and on the briefs; John Boyle, on the briefs).
Maura M. Sullivan, Assistant Prosecutor, argued the
cause for respondent (Grace C. MacAulay, Camden
County Prosecutor, attorney; Maura M. Sullivan, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Paul D. Lee appeals from the trial court's orders denying his
motions to suppress his video-recorded statement to police and to suppress an
out-of-court identification. Law enforcement properly read defendant his
Miranda1 rights, and defendant understood them and did not later invoke any of
the rights during the portion of the interrogation at issue. In addition, there was
no error in the administration of the photo array and the out-of-court
identification. Therefore, we affirm both orders.
I.
In January and February 2018, a man, later identified as defendant,
committed a series of robberies in Camden County while holding an airsoft gun
with its red tip removed. During the January 27 robbery of a Bath and Body
Works store in Cherry Hill, defendant "pulled out what appeared to be a black
handgun and pointed it at store employees demanding money from the register."
The store clerk gave him approximately $1000 in cash. The next night,
defendant entered the same store and "display[ed] a handgun, demanded money,
and obtained approximately $750.00 in cash from the register."
1
384 U.S. 436 (1966).
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On February 27, a woman called the Collingswood police and reported
she had been robbed. She told officers she was in her car in the Bank of America
parking lot after withdrawing $100 from the ATM when a man approached the
car with what appeared to be a gun in his hand, extended his arm into the car's
open window, and demanded she give him the money. The woman handed the
man her wallet, which contained $150, her driver's license, and various credit
cards; he then fled. She later described the man to police as a "white male in
his late thirties approximately 5'8" and weighing approximately 150 pounds."
Police located two eyewitnesses to the crime, one of whom described the robber
as "a Hispanic or Asian male with sunglasses and a scarf . . . ." 2
On February 28, another woman was in the ShopRite parking lot in Cherry
Hill loading groceries into the trunk of her car when defendant approached her.
He brandished an airsoft gun that resembled a real firearm because its red tip
had been removed and demanded the woman give him money. In response, she
ran away from defendant and back into the ShopRite.
2
After defendant was arrested, police searched his car and found a knit winter
hat, dark sunglasses, a grey and tan scarf, a brown wallet containing defendant's
driver's license, and a card with the victim's name on it. The victim identified
the hat and sunglasses as items worn by the man who had robbed her. She also
confirmed the card belonged to her.
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3
A few hours later, defendant was stopped by Cherry Hill police
approximately three miles away from the ShopRite parking lot. In defendant 's
waistband, officers found a black airsoft handgun without a tip. Defendant was
arrested at approximately 9:30 p.m. and transported to the police department.
A.
Defendant was placed in an interview room, and shortly after 11:00 p.m.,
Detectives Rene Lobanov and Thomas Leone entered and began speaking with
him. The videotaped recording of the interview was played during the
suppression hearing. Detective Lobanov was the only witness who testified at
the hearing.
Prior to advising defendant of his rights, the detectives asked him a series
of routine questions regarding his address, age, social security number, phone
number, education level, and marital status. Defendant indicated he was thirty-
nine, had attended several years of college (but did not receive a degree), and
was unmarried but lived with his girlfriend of six years.
After concluding this line of questioning, Detective Lobanov advised
defendant that "[b]efore [they] go any further," the detectives had to advise him
of his rights. Detective Leone clarified they "want[ed] to straighten everything
out," but first had to "get the formalities out of the way." After reading each
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right, the officers asked defendant to confirm that he understood his rights. He
said "yes" each time. He also stated he understood he could exercise his rights
at any time during questioning. Pertinent to his appeal, Lobanov stated: "Any
statement that you make can be held against you. Do you understand that?"3
Defendant confirmed he was willing to talk to police without consulting a lawyer
or having one present.
Lobanov asked defendant to sign a notification of rights form. Defendant
responded affirmatively and signed the form, checking "yes" in response to
questions asking if he understood his rights and was willing to speak to the
detectives without an attorney present.
In response to detectives' questioning, defendant stated he worked at a gun
show and had been "trying to show" and sell an airsoft gun with its red tip broken
off to "a couple of people that [he] kn[e]w." He said he was on his way to show
the gun to "a guy at the gas station" when he was stopped by police.
After police asked defendant what he had done that day, Lobanov referred
to "facial recognition cameras" that are "out there all over the place . . ." and
stated the police have access to the feed. The detective advised defendant that
3
The transcript indicates defendant gave "[n]o audible response"; however, in
the interview video, defendant is nodding his head and audibly says "yes."
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"honest[y] is the best policy" and inquired whether he had tried to sell the airsoft
gun in the ShopRite parking lot.
Defendant initially denied trying to sell the gun in the parking lot. But
after Lobanov stated he might be on camera in the area, defendant admitted
"[Y]eah, I went there . . . to sell a[n Airsoft] gun," but not the gun missing the
red tip because he could not legally sell that one. He said he went to the parking
lot to meet a "friend of a friend" but did not know his name.
Defendant further stated that he walked up to the car he thought belonged
to the individual he was supposed to meet and pulled out the gun, but instead
there was a woman who "flipped the f*** out" upon seeing him. Defendant
said: "I guess she thought I was trying to rob her," so he told her, "I'm not going
to hurt you," and he left.
Lobanov asked defendant where he went after that incident, again advised
him that "honesty is the best policy," and gestured to a large folder on a nearby
table, stating he had a "big pile" to work through. When defendant continued to
maintain that he went straight home, Lobanov once again referenced the stores
in the shopping center, representing there were "[v]ery very good cameras" and
asked defendant to "help me out to help you . . . ." Lobanov said, "[I]f you aren't
going to help me, I can't help you." Lobanov also told defendant, "I know what
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happened" and "I have this," referring again to the large folder. When defendant
asked the detective to show him what was in the file, the detective replied that
some of "this stuff is confidential."
Eventually, defendant admitted he walked through the parking lot towards
ShopRite. He said he "walked up to . . . a woman . . . and . . . pulled out the
gun" and told her, "I'm not going to hurt you and all I need is . . . money."
Defendant denied pointing the gun at the woman's face and instead said he
pointed it "at the floor."
As the interrogation continued, Leone told defendant, "[W]e already
know, pretty much, what happened. We . . . even understand . . . from talking
to some of the witnesses, you were polite."
The detectives then told defendant, "[W]e know you were responsible for
. . . another incident . . . ." Leone said defendant had a "distinct sort of . . . facial
features, the clothes you wear, you have this distinct sort of gait also, like
walking," and his voice was "very specific." The detectives further stated they
knew what had happened at Bath and Body Works and there was "video in that
store." Leone also said they had eight or nine witness statements from the two
nights of robberies. Defendant repeated several times he had never been in the
Bath and Body Works store and he did not rob it. The detective also represented
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they had collected DNA from the store and were awaiting the results of the
testing.
Defendant continued to assert he did not rob the Bath and Body Works
store even after Lobanov suggested the detectives would "probably have to
impound" his vehicle and "apply for a search warrant . . . ." The detectives also
told defendant they had surveillance video from six stores in the area of the
robberies but had not yet had the chance to fully review it. Leone even described
the footage he had seen and stated, "I got a good view of you." When defendant
asked to see the surveillance videos, the detectives advised him it was evidence
and his "attorney [could] request discovery."
They continued to encourage him to confess and stated, "[I]t always works
out better when there's cooperation . . . ." However, even after the detectives
reiterated that they had "so much evidence," defendant continued to deny any
involvement.
Defendant then stated, "I just want to go to sleep. I'm so tired." Shortly
thereafter, the following exchange took place:
[DEFENDANT]: I didn't do it. I'm not going to say I
did it if I didn't f[***]ing do it. Can you please take me
to jail now or whatever you're going to do?
[DETECTIVE LOBANOV]: [Y]eah, we will. Are you
. . . all done?
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[DEFENDANT]: I have nothing else to say. I have told
you everything. Can I make a phone call?
[DETECTIVE LOBANOV]: All right. Give me a
second.
Although detectives resumed their questioning for approximately eight
more minutes, during which defendant confessed to the Bath and Body Works
robberies, the State stipulated during the motion hearing that defendant's
statement, indicating he had "nothing else to say," was an unequivocal
invocation of the right to remain silent and that all questioning should have
ended at this point. The State conceded the confession regarding the Bath and
Body Works robberies was inadmissible.
During cross-examination at the suppression hearing, Lobanov stated he
had video evidence of the Bath and Body Works robberies but was not sure
whether footage had yet been obtained from the ShopRite parking lot incident s.
He stated there was no DNA evidence. The detective explained his reference to
various types of evidence was investigative and interview/interrogative
techniques.
B.
Defendant sought to suppress the entire statement, arguing (1) he did not
knowingly and intelligently waive his Miranda rights because Lobanov advised
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9
him that his statements could be used against him, rather than could and would
be used against him; (2) he did not voluntarily waive his Miranda rights because
Lobanov suggested defendant could help himself by providing information
regarding the offenses; (3) Lobanov's gesturing towards the large folder in the
interview room constituted impermissible fabrication of evidence; and (4) his
statement that he was tired amounted to an unequivocal invocation of his right
to remain silent.
On December 12, 2018, the court issued a comprehensive, well-reasoned
opinion denying defendant's motion, with the exception of the suppression of
the portion of defendant's statement agreed to under the parties' stipulation. The
judge found Lobanov was a "credible witness." In addressing defendant's
arguments regarding his waiver of Miranda rights, the judge found it was
sufficient to advise defendant that any statements "could" be used against him,
instead of "could and would" be used against him, because the language "was
substantively adequate to inform [defendant] of his Constitutional rights,
notwithstanding" the minor variation in the words.
The court rejected defendant's argument that he did not voluntarily waive
his Miranda rights because Lobanov advised him he could help himself by
confessing. The court distinguished the circumstances present here from
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authority cited by defendant, noting Lobanov administered the Miranda
warnings prior to making any comments about help and the detective did not
suggest that defendant could not hurt himself by confessing or would only hurt
himself by refusing to confess. The judge stated, "Lobanov's statement to
[defendant] merely encouraged a reluctant defendant to make a statement . . .
[and] did not negate the Miranda warnings . . . by making a false or inaccurate
statement to [defendant] regarding his decision to speak." Therefore, Lobanov's
conduct fell "within the psychological tactics which law enforcement officers
are permitted to use." In reaching this conclusion, the judge considered
additional factors such as defendant's age, education, and familiarity with the
criminal justice system resulting from prior felony and misdemeanor arrests in
multiple states and time spent in jail or on probation.
In turning to defendant's contentions regarding the detectives' reference to
the folder of evidence, the judge stated those actions "did not amount to a
preparation of false incriminating documents." Lobanov merely "claimed to
have . . . pieces of evidence . . . , which he was permitted to do"; he did not
create and show defendant falsified evidence. Lastly, the court did not find
defendant invoked his right to silence when he said, "I just want to go to sleep.
I'm so tired." The judge found this statement was made in response to the
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detectives asking defendant whether he wanted some coffee or water, and that
his willingness to talk after making the statement demonstrated "it was not his
intention to terminate questioning . . . ." The judge stated defendant "appeared
alert, communicated clearly, and responded to each of the detectives' questions
appropriately" during the interview.
II.
Defendant also moved to suppress the out-of-court identification made by
an eyewitness to the theft in the Bank of America parking lot in Collingswood.
He argued that numerous system variables rendered the photo array
impermissibly suggestive and inadmissible. Specifically, he asserted the photo
array was suggestive because: (1) defendant was the only white male, and the
fillers were of Asian descent; and (2) the detective conducting the array did not
ask the eyewitness about her percentage of certainty regarding her identification
of a photo other than the one she identified as defendant.
A.
The court held a Wade4 hearing and heard oral argument on the motion.
The State called Sergeant Martin Farrell as its first witness. He testified
regarding his qualifications, which included sixteen years with the Camden
4
United States v. Wade, 388 U.S. 218 (1967).
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County Prosecutor's Office and "experience in conducting and requesting photo
arrays." During his investigation of the February 27, 2018 robbery, he found
two eyewitnesses, one of whom was able to give a description of the suspect as
he ran by her.
After Farrell was contacted by the Cherry Hill police officers who had
arrested defendant and thought he might match the suspect in the Collingswood
robbery, he decided to conduct a photo array with the eyewitness. Farrell
selected Detective Andrew McNeil to administer the array because McNeil did
not have any knowledge of the case. Farrell also explained that he converted
the photos to black and white because he did not want the orange prison jumpsuit
defendant was wearing in the photo used for the array to "draw someone's
attention" to that particular photo. Farrell testified he was "satisfied" with the
similarity of the photos in the array based on hair color, hair style, and facial
features—including the eyes.
McNeil also testified, describing the process of the photo array and the
eyewitness's identification of defendant's photo. He stated the eyewitness was
seventy percent sure the photo she selected was of the man she saw run by her
on the day of the Collingswood robbery. The State then played a video recording
of the administration of the photo array.
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B.
On April 4, 2019, the judge issued a thorough written opinion denying
defendant's motion. She initially noted both witnesses were credible. She
rejected defendant's argument that the photo array was constructed in a
suggestive manner and found that defendant's photo did "not significantly stand
out." The judge also found all the photos had "consistent" backgrounds and
lighting, were taken from "approximately the same distance," and that it was
"necessary" for officers to convert the photos to black and white to "neutralize
[defendant]'s attire and prevent him from unduly standing out as potentially the
only individual depicted wearing a prison jumpsuit . . . ."
The court further found the conversion to black and white photographs did
not "[d]etract from the ability to determine that all eight individuals depicted
have similar, tan skin tones," and that all of the individuals had "substantially
similar features and appear[ed] similar in age." In addition, the judge noted the
individuals had similar "dark eye color and hair color," "shorter style haircuts,"
"thinner build[s]," and were clean shaven. Therefore, the court concluded
defendant did "not significantly stand out based on a difference in any particular
physical features, or based on the composition of the photographs . . . ."
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The judge then addressed whether the photo array was administered in a
suggestive manner. She found McNeil "credibly testified" that he was a double-
blind administrator with "no specific knowledge of the case" and she was
"satisfied" the array was properly conducted. The court found McNeil provided
the eyewitness with correct instructions and the witness signed a form indicating
she understood the instructions.
The court rejected defendant's argument that McNeil should have asked
the witness how confident she was about a second photograph she separated out
from the array along with that of defendant. Because the witness did not make
any identification other than the photo of defendant, the court stated McNeil was
only required to ask her about her confidence in her selection of defendant's
photo. The judge concluded the actions of the witness in setting aside two
photos and later returning to them were not suggestive. No authority was
presented to support defendant's argument that the procedure was inappropriate,
and the court found the witness properly reviewed each photo individually rather
than comparing them against each other. The court concluded that defendant
"failed to show any evidence of suggestiveness with respect to the photo array
administered to [the eyewitness]."
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Defendant pleaded guilty to two counts of armed robbery and was
sentenced to eleven years in state prison, subject to a parole disqualification
period.
III.
On appeal, defendant presents the following points for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
MOTION TO SUPPRESS BECAUSE MR. LEE DID
NOT KNOWINGLY AND VOLUNTARILY WAIVE
HIS RIGHTS, AND HIS STATEMENTS WERE NOT
VOLUNTARY UNDER THE TOTALITY OF THE
CIRCUMSTANCES.
POINT II
THE TRIAL COURT ERRED IN TERMINATING
THE WADE HEARING BECAUSE THERE WAS
MORE THAN SOME EVIDENCE THAT THE
PHOTO ARRAY ADMINISTERED TO THE
EYEWITNESS WAS SUGGESTIVE.5
A.
In his first point, defendant renews the arguments presented to the trial
court. In reviewing a grant or denial of a motion to suppress, we must uphold
5
Defendant's one-page pro se supplemental letter did not raise any additional
issues.
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the factual findings underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243 (2007). Deference to these factual findings is required when they
are "substantially influenced by [an] opportunity to hear and see the witnesses
and to have the 'feel' of the case, which a reviewing court cannot enjoy." State
v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). We will only reverse when the trial court's determination is "so clearly
mistaken 'that the interests of justice demand intervention and correction.'"
Elders, 192 N.J. at 244 (quoting Johnson, 42 N.J. at 162).
A trial court's interpretation of the law, however, and the consequences
that flow from established facts are not entitled to any special deference. State
v. Gandhi, 201 N.J. 161, 176 (2010); Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995). Thus, a trial court's legal conclusions are
reviewed de novo. Gandhi, 201 N.J. at 176.
"A suspect's waiver of [their] Fifth Amendment right to silence is valid
only if made 'voluntarily, knowingly and intelligently.'" State v. Adams, 127 N.J. 438, 447 (1992) (quoting Miranda, 384 U.S. at 444). A determination of
the voluntariness of a custodial statement requires an assessment of the totality
of the circumstances surrounding the giving of the statement. State v. Roach,
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146 N.J. 208, 227 (1996). A court must look at the characteristics of the suspect,
such as their age, education, intelligence, and prior encounters with the law.
State v. Galloway, 133 N.J. 631, 654 (1993); State v. Miller, 76 N.J. 392, 402
(1978). It must also consider the nature of the interrogation, such as whether it
was prolonged and resulted in the suspect's mental exhaustion and also whether
the suspect was subjected to physical or psychological coercion. Galloway, 133 N.J. at 654.
"Because a suspect will have a 'natural reluctance' to furnish details
implicating themself in a crime, an interrogating officer may attempt 'to
dissipate this reluctance and persuade the [suspect] to talk.'" State v. L.H., 239 N.J. 22, 43-44 (2019) (alteration in original) (citing Miller, 76 N.J. at 403). One
permissible way is by "[a]ppealing to [the suspect's] sense of decency and urging
[them] to tell the truth for [their] own sake." Miller, 76 N.J. at 405. Our
jurisprudence even gives officers leeway to tell some lies during an
interrogation. See L.H., 239 N.J. at 44 (citations omitted).
Certain lies, however, have the "capacity to overbear a suspect's will and
to render a confession involuntary." Ibid. A police officer cannot directly or by
implication tell a suspect their statements will not be used against them because
to do so is in clear contravention of the Miranda warnings. See State in re A.S.,
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203 N.J. 131, 151 (2010) (holding that "[a] police officer cannot directly
contradict, out of one side of his mouth, the Miranda warnings just given out of
the other") (quoting State v. Pillar, 359 N.J. Super. 249, 268 (App. Div. 2003));
see also State v. Puryear, 441 N.J. Super. 280, 298 (App. Div. 2015) (holding
the interrogator's representation to the defendant was impermissible where the
interrogator said defendant "could not hurt himself and could only help himself
by providing a statement" because it "contradicted a key Miranda warning").
Other impermissible lies are false promises of leniency that, under the
totality of circumstances, have the capacity to overbear a suspect's will. See
State v. Hreha, 217 N.J. 368, 383 (2014) (holding a promise of leniency was
impermissible where officers told suspect he would avoid "traditional criminal
prosecution" and receive "a slap on the wrist" if he confessed). A "free and
voluntary" confession is not one extracted by "threats or violence, nor obtained
by any direct or implied promises, however slight, nor by the exertion of any
improper influence." Brady v. United States, 397 U.S. 742, 753 (1970) (quoting
Bram v. United States, 168 U.S. 532, 542-43 (1897)).
We are satisfied the trial court did not err in denying defendant's motion
to suppress and concluding defendant made the statement after knowingly and
voluntarily waiving his Miranda rights. We find no merit in the assertion that
A-1689-19
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the detectives' Miranda warnings were inadequate because they informed
defendant his statements can be, as opposed to can and would be, used against
him. As the trial court stated, the detectives' language was substantially similar
and adequately informed defendant of his rights. Defendant does not contend
he was "misled into . . . disclosing incriminating information in reliance upon
the warning he was given." State v. Melvin, 65 N.J. 1, 14 (1974).
Moreover, these warnings were not negated by the detectives referring to
them as "formalities." 6 The record reflects the detectives thoroughly informed
defendant of his rights, asking if he understood each one before proceeding to
the next. Defendant also signed a notification of rights form, checking "[y]es"
in response to questions asking if he understood his rights and was willing to
speak to the detectives without an attorney present. The detectives, therefore,
adequately informed defendant about his Miranda rights and did not
impermissibly minimize their importance.
We also discern no error in the court's conclusion that the detectives did
not use impermissible interrogation techniques during the interview by telling
defendant he could help himself by confessing or by indicating they had
considerable evidence of his guilt. The detectives did not tell defendant they
6
This argument was not raised before the trial court.
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would help him or make any promises. They instead suggested defendant could
help himself by confessing. As found permissible in the cited case law, the
detectives attempted to appeal to defendant's "sense of decency and urg[ed] him
to tell the truth for his own sake." Miller, 76 N.J. at 405. This did not represent
a promise so enticing it overcame defendant's free will, Hreha, 217 N.J. at 383,
but was within the range of acceptable techniques police may employ to
encourage a reluctant suspect to speak, L.H., 239 N.J. at 43-44.
It was also not impermissible coercion for the detectives to represent to
defendant they had ample evidence of his guilt during the interview by gesturing
to the large folder. Our courts recognize a "distinction between verbal trickery
and the fabrication of false tangible evidence by police to elicit a confession."
State v. Chirokovskcic, 373 N.J. Super. 125, 133 (App. Div. 2004). The trial
court correctly held that the detectives engaged in the former and only "claimed
to have these pieces of evidence . . . , which [they were] permitted to do, and
then merely pointed to a folder indicating it was full of evidence."
The detectives did not fabricate any tangible evidence. They may have
exaggerated the amount of evidence they actually had. But that is permissible
under our case law. And, evidently the detectives' representations were not
convincing, as defendant repeatedly indicated he did not believe them and even
A-1689-19
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asked to see the evidence. Another clear indictor that defendant's will was not
overborne was, although he admitted to the ShopRite parking lot robbery
attempt, he repeatedly and adamantly denied committing the robberies at the
Bath and Body Works store.
Defendant's argument that the detectives engaged in pre-Miranda
questioning and then used his statements to procure further admissions during
the interview is equally unpersuasive. As we have stated, "[B]ooking
procedures and the routine questions associated therewith are ministerial in
nature and beyond the right to remain silent." State v. Mallozzi, 246 N.J. Super.
509, 515 (App. Div. 1991) (citation omitted).
Detective Lobanov testified that he asked defendant some routine
questions regarding "biographical information, his wellbeing, and whether or
not he wished to get anything to drink or eat" prior to the interview. Lobanov
denied asking any questions about the case. While it is clear from the interview
transcript that the two must have discussed defendant's girlfriend and his
financial troubles, there is nothing in the record to indicate defendant did not
volunteer this information in response to routine booking questions.
Following the submission of briefs, defendant asked this court to consider
the Supreme Court's recent decision in State v. Gonzalez, 249 N.J. 612 (2022).
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There, the Court found police must stop an interrogation when a defendant
indicates, even ambiguously, that they want a lawyer. Id. at 631-32. Here,
defendant did not request an attorney. Defendant argues he invoked his Miranda
right to remain silent when he stated he was tired. However, in observing the
recorded statement, the trial court found defendant was alert at that point. In
addition, he continued speaking with police and did not state he no longer
wished to talk. When he did state he "ha[d] nothing else to say," the State
conceded it was an invocation of his Miranda rights and the remainder of the
statement was inadmissible.
The totality of the circumstances surrounding the statement demonstrates
defendant knowingly and voluntarily waived his Miranda rights. The trial court
properly denied the motion to suppress the statement.
B.
Defendant argues that the trial court erred in terminating the Wade hearing
and denying his motion to suppress the out-of-court identification because there
was evidence of suggestiveness in the administration and construction of the
photo array. Specifically, he asserts the array was suggestive because: (1) "when
the witness was initially unable to make an identification, the administering
officer suggested eliminating photos for additional viewings"; (2) "police edited
A-1689-19
23
the images to appear in black and white, preventing the witness from evaluating
characteristics like skin and hair tone"; and (3) defendant stood out from the
filler photographs in his eye shape and hair style.
To challenge an out-of-court identification, "defendant has the initial
burden of showing some evidence of suggestiveness that could lead to a
mistaken identification." State v. Henderson, 208 N.J. 208, 288 (2011). Once
a hearing has been granted, the State must present proof that the identification
is reliable. Id. at 289. The State's burden is the same as the burden of producing
evidence described in N.J.R.E. 101(b)(2), which is sometimes referred to as the
"burden of going forward." State v. Henderson, 433 NJ. Super. 94, 107 (App.
Div. 2013). "The burden of producing evidence has been described . . . 'as so
light as to be little more than a formality.'" Ibid. (quoting State v. Segars, 172 N.J. 481, 494 (2002)). The evidence need not be persuasive; the State must
merely "provide evidence on the issue that is germane to the inquiry with
sufficient clarity so that the opposing party has a full and fair opportunity to
respond." Ibid.
Although the State must present proof that the identification is reliable, it
is defendant's ultimate burden to "prove a very substantial likelihood of
irreparable misidentification." Id. at 106. Defendant may cross-examine the
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State's witnesses and present their own witnesses and relevant evidence related
to system and estimator variables to meet this burden. Ibid. If, under the totality
of the circumstances, defendant meets this burden, the court will suppress the
out-of-court identification. Ibid.
A defendant's evidence of suggestiveness "must be tied to a system
[variable]—and not an estimator—variable." Henderson, 208 N.J. at 288-89.
System variables are "factors . . . within the control of the criminal justice
system." Id. at 247. Estimator variables are "factors related to the witness, the
perpetrator, or the event itself . . . over which the legal system has no control."
Ibid.
Defendant renews the arguments he made before the trial court. We are
not persuaded.
There was no error in converting the photos to black and white. As the
trial judge stated, it was done to "neutralize [defendant]'s attire and prevent him
from unduly standing out as potentially the only individual depicted wearing a
prison jumpsuit." The photos continued to depict eight individuals with similar,
tan skin tones. The trial court considered hair style and eye shape and found
that all the individuals depicted had "similar shorter style haircuts" and
"substantially the same or substantially similar features, including the eyes."
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Therefore, defendant's photo did "not significantly stand out based on a
difference in any particular physical features, or based on the composition of the
photographs . . . ." The trial court's findings are supported by the evidence in
the record.
Moreover, there is no merit to defendant's argument that the array was
administered in a suggestive fashion. Detective McNeil, who the court found
credible, testified that he was a double-blind administrator who had no specific
knowledge of the case, and he provided adequate pre-identification instructions.
McNeil showed the witness each photo sequentially and reminded her to
"take as much time as you need." McNeil then gave her the option to review all
the photos again or to only view certain ones. When the witness asked to see
two photos again, McNeil reminded her she was "not required to choose any of
the photographs" and then ensured she turned the first photo over before looking
at the next to avoid comparing them. There is no evidence in the record that
McNeil improperly administered the photo array.
There also is no merit to defendant's contention regarding "multiple
viewings." The concern with multiple viewings is the effect of viewing a photo
again at a subsequent identification procedure such as a lineup—not viewing a
photo again during the same photo array. See Henderson, 208 N.J. at 255-56.
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Here, there was a single photo array; McNeil initially showed the witness all the
photos sequentially. When he finished, he gave the witness the option to view
all the photos again or to only look at certain ones. The witness chose to only
look at two photos and then identified defendant with seventy percent
confidence after reviewing both photos. This process took approximately six
minutes.
These circumstances do not implicate the same concerns outlined in
Henderson. Id. at 255-56. Because there was only a single photo array, the
witness's identification could not have been based on an earlier procedure.
There is no error in a witness setting aside photos for further review during the
same array. Defendant has failed to demonstrate the photo array was suggestive.
Therefore, we affirm the trial court's denial of defendant's motion to
suppress the out-of-court identification.
Affirmed.
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