STATE OF NEW JERSEY v. STEPHON G. WRIGHT
DOCKET NO. A-4309-13T2
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
February 29, 2016
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4309-13T2
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
STEPHON G. WRIGHT, Defendant-Appellant.
Submitted December 7, 2015 – Decided February 29, 2016
Before Judges Sabatino, Accurso and O‘Connor.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-11-2039.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Rookmin Cecilia Beepat, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Following the denial of defendant Stephon G. Wright‘s motions to exclude the testimony of the victim identifying
POINT I
THE COURT BELOW COMMITTED REVERSIBLE ERROR IN DENYING THE MOTION TO SUPPRESS THE IDENTIFICATION, AS [THE VICTIM‘S] OUT-OF-COURT IDENTIFICATION PRESENTED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION, AND THE IDENTIFICATION PROCEDURE WAS NOT PROPERLY RECORDED. (Partially Raised Below).
POINT II
MR. WRIGHT WAS NOT APPRISED OF HIS MIRANDA RIGHTS PRIOR TO BEING SUBJECTED TO A CUSTODIAL INTERROGATION, AND THEREFORE, THE COURT BELOW ERRONEOUSLY DENIED HIS MIRANDA MOTION.
POINT III
THE MATTER SHOULD BE REMANDED FOR RESENTENCING.
A. The Sentencing Judge Engaged in Double Counting.
We find no error in the court‘s decision to admit the identification evidence under the test established in State v. Henderson, 208 N.J. 208 (2011), and thus reject defendant‘s arguments on that point. We also reject Wright‘s arguments regarding his sentence. We agree, however, that his statements to the police were the product of the equivalent of custodial interrogation without required Miranda1 warnings and should have been suppressed. Accordingly, we reverse the court‘s decision to admit the statements and remand for further proceedings.
The Pre-trial Hearing
Walking home from the Journal Square PATH station in Jersey City at about three a.m. in the middle of the summer, three brothers were accosted by a man on a bicycle. The man pointed a silver gun at them and demanded they give him what they had in their pockets. The brothers handed over an iPhone and about fifteen dollars. After the man rode off, the young men hurried toward their uncle‘s house and used a cell phone they had not relinquished to call the police.
The officers drew their weapons and entered the garage. Although none of the occupants claimed ownership of the bike, the officers noticed one man, later identified as defendant, who appeared nervous and matched the description of the robber. The officers separated him from the group to speak to him outside the garage. Officer Andrek testified at the hearing that the officers immediately informed defendant he was being detained because he fit the description of the perpetrator of an armed robbery that had just taken place near Journal Square. He also radioed the precinct they had a suspect.
Three other officers arrived as backup within a minute or so. Officer Andrek detained defendant outside the garage, while Officer Harrison joined the three newly arrived officers in a search of the area. Shortly thereafter, Andrek was advised by
Before the victim arrived, however, one of the other officers found a gun in an alleyway two houses away from where Officer Andrek was holding defendant. Andrek testified that when he was informed a gun had been recovered, he relayed that information to defendant as well. That testimony led to the following exchange:
Prosecutor: What, if anything, was Mr. Wright[‘]s reaction, expression, however you want to word it, when you informed him of these two things?
Officer Andrek: His expression was so — he was caught. He put his head down and sighed, and then he said fuck you, I got the cell phone, it‘s over there. And he motioned his head towards the direction of the gun.
The prosecutor followed up with this question.
Prosecutor: And, again, this wasn‘t based on questioning by you or [Officer] Harrison, this was Mr. Wright saying this only after you informed [him] the victim was on the way, and the handgun was recovered?
Officer Andrek: Correct.
Although the officer conceded on cross-examination that it would have been “prudent” to have advised defendant of his rights when the officer began “relaying information to [defendant] about the
Following Wright‘s admission, officers quickly recovered the phone in an alley near where the gun was found and radioed the information to the other units involved in the investigation. The victim heard that radio transmission while seated in the back seat of Detective Frascino‘s car on the way to the showup. The victim testified he also heard over the radio the police had recovered the gun as well. He claimed that not only had he heard other officers had recovered his cell phone before they arrived at the place the police were holding defendant, but that Detective Frascino told him that as well.2
The victim testified that when they arrived at the showup, he remained in the car while some officers stood nearby with a man in handcuffs whom they said was “the guy we found with the phone” and asked, “is this the guy who robbed you[?]” He testified he was “positive” that defendant was “the right guy” and that the entire incident, from robbery to identification, took place in less than an hour. In response to the judge‘s
Detective Frascino testified that he explained the identification procedure to the victim,3 but denied telling him the suspect had been found with the phone at the time of the showup. Instead the detective maintained the information that the phone had been located “came over the air, and [the victim] was excited in the car and said they found my phone, and I only stated that that‘s what they said over the air.” The detective also testified defendant was in handcuffs when they arrived for the showup, but that he had the cuffs removed before walking defendant to the car for the victim‘s identification. He did allow, however, that it was possible the victim saw defendant in handcuffs when they first pulled up.
that we were [en] route to a location where there would be a subject that we want him to — that I would like him to take a look at. And when we get there, when you look at him you tell me if there‘s anything about him that he can tell me regarding that subject.
The detective made no mention of having warned the victim that the suspect might not have been the perpetrator and that the victim should not feel compelled to make an identification, as is required by the Attorney General Eyewitness ID Guidelines and Henderson. See Henderson, supra, 208 N.J. at 261, 276-78.
The judge issued a written opinion denying the Wade4 motion. After summarizing the testimony of the witnesses and reviewing the Supreme Court‘s discussion of system and estimator variables5 in Henderson, the judge found that without doubt the showup was impermissibly suggestive. He wrote:
After extensive questioning by the attorneys and the Judge, the victim stated that he was told “they have the person who has the phone.” The victim specifically stated that the Officers told him this prior to showing him the suspect. The “suspect” was brought to the police car in handcuffs and positively identified as the perpetrator. There was only one individual that was brought to the unmarked vehicle for identification. These factors conveyed to [the victim] that the police believed they had the robber.
Notwithstanding the impermissible suggestiveness of the showup, the judge concluded the victim‘s identification of defendant as the man who robbed him and his brothers was
The judge acknowledged other estimator variables that could affect the reliability of the identification, including the presence of a gun, which he found “could have distracted the victim‘s focus on the perpetrator‘s face.” Having considered both the suggestiveness of the showup and the estimator variables, the judge concluded based on the witnesses’ testimony “that the victim made the identification from his own independent recollection” and that it “was not tainted in any significant way by the suggestive identification procedure.”
The judge also denied defendant‘s motion to exclude his statements to the police, but did so in an oral opinion. He concluded custody was not in issue as “defendant was actually detained [outside the garage] and, therefore, legally and
I don‘t believe that the action of the police in advising him what was going on would have caused them to reasonably expect to elicit from him an incriminating response as to where the phone was. I just don‘t find it to be a functional equivalent of interrogation as per the Ward7 case . . . .
[The officers] . . . did nothing to elicit the response from [defendant] indicating where the phone was. That‘s something he blurted out based upon all the circumstances of what‘s going on and, frankly, it‘s probably something common that happens in human nature, you just — you know, it is what it is.
So I don‘t find that his constitutional rights were violated by virtue of the fact he was not Mirandized, as in fact . . . the police comment did not constitute an interrogation or the functional equivalent of an interrogation. Nothing was done to elicit a response by the police.
Accordingly, the judge denied defendant‘s motion.
Standard of Review
Our standard of review on a motion to bar an out-of-court-identification (or a statement made without benefit of Miranda
Our Supreme Court has long held that “[a]n appellate court ‘should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses . . . .‘” State v. Elders, 192 N.J. 224, 244 (2007) (quoting Johnson, supra, 42 N.J. at 161). That deference is grounded in the understanding that our “reading of a cold record is a pale substitute for a trial judge‘s assessment of the credibility of a witness he has observed firsthand.” State v. Nash, 212 N.J. 518, 540 (2013). Appellate review of the trial court‘s application of the law to the facts, however, is plenary. State v. Coles, 218 N.J. 322, 342 (2014);
Identification Issue
We turn first to defendant‘s contention that the trial court erred in admitting the victim‘s out-of-court identification. There is no dispute that under the Henderson framework, which applied in this case, the inherent suggestibility of a showup entitled defendant to a Wade hearing. See Henderson, supra, 208 N.J. at 261 (“showups, while sometimes necessary, are inherently suggestive“). With “actual proof of suggestiveness” supplied by the showup, augmented by the victim‘s credible testimony that the officers told him before he viewed the suspect that they had the person who had his phone, the court was required to consider both system variables and estimator variables in evaluating the overall reliability of the identification in determining its admissibility. See id. at 291.
The court identified several system variables that could have affected the reliability of this identification. Beyond the inherent suggestibility of the showup itself, the court noted the victim heard the police radio transmissions that officers had recovered his cell phone and found a gun minutes before he was asked to identify the suspect. The victim
Exploring the estimator variables at the hearing as Henderson requires, see id. at 293, the court noted that the presence of a gun certainly “could have distracted the victim‘s focus on the perpetrator‘s face.”8 It found other estimator variables, however, that could positively affect the reliability of the identification, including that the victim stood within three feet of the perpetrator and that the two exchanged words, which allowed the victim to get a good look at his assailant. The court further noted that the identification was made shortly after the encounter, within an hour according to both the police and the victim. The court emphasized that the victim was able to provide police with a “highly accurate” description of the
Weighing the system and estimator variables present in this record led the court to find that although “the identification procedure was impermissibly suggestive,” it could not conclude that defendant had proved a “very substantial likelihood of an irreparable misidentification” as was his burden. Id. at 289 (“[I]f after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable
Although the Henderson Court noted the enhanced framework it established for admission of identification testimony “may provide a greater role [for appellate review] in certain cases,” id. at 295, we do not conclude the Court intended by that observation to endorse a standard that would allow us to set aside findings that have adequate support in the record, as these do.10 To be sure, the Court in Henderson continued to endorse its conclusion in State v. Herrera, 187 N.J. 493, 504 (2006), that showups are inherently suggestive. Henderson, supra, 208 N.J. at 261; see also Jones, supra, 224 N.J. 70 (slip op. at 22). It did not, however, limit their
We recognize, of course, that the inherent suggestibility of a showup was compounded in this instance by several system variables, most notably the witness hearing the radio transmissions and the detective‘s failure to try to neutralize the harm by declining to confirm the information and warning the witness that the suspect may not be the perpetrator and that he should not feel compelled to make an identification, and instead telling him they had “the person who has the phone.” We also acknowledge that neither counsel nor the court was accustomed to
The central point of Henderson is the recognition that suggestive identification procedures can skew a witness‘s report of his opportunity to view the crime, his degree of attention, and, most importantly perhaps, his level of certainty at the time of the identification. 208 N.J. at 286. Thus it is critical that the court identify particular police procedures — the system variables – and consider whether and to what extent any may have distorted the witness‘s perception at the time of the identification and the witness‘s certainty as to the identification thereafter. The court is to weigh those system variables along with any applicable estimator variables, some of which are also capable of altering memory and thus tainting an identification, in determining, based on the totality of the
Here, the trial court, after listening to the testimony and weighing the factors, concluded defendant had not demonstrated that very substantial likelihood and that it would be for the jury to decide whether the victim credibly identified defendant, guided by enhanced instructions on eyewitness testimony from the trial judge.12 See Model Jury Charge (Criminal), “Identification: Out-of-Court Identification Only” (2012); State v. Lazo, 209 N.J. 9, 24 (2012). The court based its ruling on the victim‘s ability to see the robber and provide a “highly accurate” description of him less than an hour before he was called on to make his identification. Although finding the police impermissibly signaled the victim in a variety of ways that “the police believed they had the robber,” the court concluded the
Delgado Claim
Defendant also contends, in an argument not raised to the trial court, that the out-of-court identification should not have been admitted under State v. Delgado, 188 N.J. 48, 63 (2006), which conditions admissibility on adequate documentation of the identification procedure. See also R. 3:11.
Specifically, defendant argues that “[t]he absence of even a single report regarding ‘the dialogue between the witness and the interlocutor,’ . . . renders [the victim‘s] out-of-court identification inherently suspect and per se inadmissible.”
Because this issue was not raised to the trial court,14 it is defendant‘s burden to demonstrate that the police failed to create an adequate record of the showup in those reports and that such failure was clearly capable of producing an unjust result. See R. 2:10-2; Delgado, supra, 188 N.J. at 64; State v. Macon, 57 N.J. 325, 337 (1971). As defendant has not included
Miranda Issue
We turn now to defendant‘s argument that his statements to
the police should have been suppressed. It is beyond well
settled that “every natural person has a right to refuse to
disclose . . . to a police officer . . . any matter that will
incriminate him or expose him to a penalty . . . .”
The United States Supreme Court has made clear that Miranda warnings are required “whenever a person in custody is subjected to either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 308 (1980). Our Supreme Court
The Supreme Court in Innis, explained that “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response [whether inculpatory or exculpatory] from the suspect.” 446 U.S. at 301, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308 (footnotes omitted). The Court explained its reasoning thus:
The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that
the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
[Id. at 301-02, 100 S. Ct. at 1690, 64 L. Ed. 2d at 308 (footnotes omitted).]
We applied the Innis rule in State v. Ward, 240 N.J. Super. 412 (App. Div. 1990). Ward involved a robbery of a mini-mart in Newark by three males, one of them a juvenile. Two of the robbers, Kevin Miller and the juvenile, S.S., fled in a car and were quickly apprehended by police. Miller implicated Ward, who was then identified by one of the victims in a photo array. The following week, a detective investigating the robbery learned that Ward was in custody on an unrelated charge. The detective went to Ward‘s cell with photographs of Miller and S.S. The detective showed Ward the pictures and, without giving him Miranda warnings, told him he was going to be charged with the robbery of the mini-mart, and that Miller and S.S. had already been arrested. Ward looked at the pictures and told the
We determined that the detective‘s confrontation with Ward had been the functional equivalent of an interrogation, and that Ward‘s response “was not simply a spontaneous outburst elicited casually or innocently without the State‘s purposeful enticement or encouragement.” Id. at 417. “[M]indful that ‘the modern practice of in-custody interrogation is psychologically rather than physically oriented,‘” ibid. (quoting Miranda, supra, 384 U.S. at 448, 86 S. Ct. at 1614, 16 L. Ed. 2d at 708), Judge King wrote that
the Detective‘s undertaking . . . was designed to elicit a response, both helpful to the investigation and incriminatory of his suspect. . . . Defendant should have been given the Miranda warnings before, not after, the Detective started the process so clearly designed to entangle the defendant in the criminal event.
[Id. at 418.]
We concluded that a scrupulous respect of Ward‘s rights would have required Miranda warnings before the detective confronted Ward in his cell, told him of the robbery and of the formal
Officer Andrek testified he provided defendant information at three different times while defendant was in custody outside the garage before providing him Miranda warnings. Upon escorting defendant out of the garage, Andrek advised defendant he was being detained because he fit the description of the perpetrator of an armed robbery that had just taken place near Journal Square. Several minutes later, Andrek advised defendant that one of the victims was being brought over to see if the victim could identify him. Some minutes after that, Andrek advised defendant that officers searching the area had located a gun a few doors down from where they stood.
The trial judge concluded on the basis of that testimony that Officer Andrek “did nothing to elicit the response from [defendant] indicating where the phone was.” Instead the judge found it was “something [defendant] blurted out based upon all the circumstances of what‘s going on and, frankly, it‘s probably something common that happens in human nature, you just — you know, it is what it is.”
We agree that it is not surprising that defendant “blurted out” an expletive and acknowledged he had the cell phone “based upon all the circumstances” transpiring. Defendant knew police
To be clear, like the trial judge, we see no objection to the officers’ initial statements to defendant about why he was being detained. If defendant had at that point blurted out that he had the cell phone, we would not hold the officers accountable for such an unforeseeable result. See Innis, supra, 446 U.S. at 301-02, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308;
Here, however, Officer Andrek continued well beyond his initial communication informing defendant of the reasons for his detention. The officer‘s actions in continuing to engage defendant by providing him updates on the progress of the investigation were unnecessary, and the officer should have known they would be likely to elicit an incriminating response, either exculpatory or inculpatory. See Innis, supra, 446 U.S. at 301 n.5, 100 S. Ct. at 1689 n.5, 64 L. Ed. 2d at 308 n.5. They should not have been undertaken prior to providing defendant with Miranda warnings. Accordingly, we reverse the decision to admit defendant‘s statements to the police and remand for further proceedings consistent with this opinion.
Defendant‘s Sentence
Because our decision does not mandate the reversal of defendant‘s conviction, but only allows him the opportunity to withdraw his guilty plea, R. 3:9-3(f); State v. Cummings, 184 N.J. 84, 100 (2005), we address, and reject, his arguments regarding his sentence.
Conclusion
The decision to admit the identification evidence is affirmed. The decision to admit defendant‘s statements to the police is reversed and the matter is remanded to the trial court, where defendant may elect either to withdraw his plea and proceed to trial with his statements to the police excluded, or
Affirmed in part; reversed in part and remanded.
Notes
Similarly, the court made no mention of Detective Frascino‘s failure to have warned the victim that the suspect might not have been the perpetrator, and that the victim should not feel compelled to make an identification, as is required by the Attorney General Eyewitness ID Guidelines. See supra, note 3. Although the Court in Henderson rejected the notion that violation of the Attorney General Guidelines would require per se exclusion of the resulting eyewitness identification, pre-identification instructions are a critical system variable that must be weighed on a Wade motion under the revised Henderson framework. See Henderson, supra, 208 N.J. at 250, 261, 290, 292-93.