*1 186 A.2d JERSEY, PLAINTIFF-RESPONDENT,
STATE OF NEW v. IBN ADAMS, (FACT), (AP- ALI IBN ADAMS ALI-IBN ADAMS A/K/A MIS) ADAMS, AND IBN A. DEFENDANT-APPELLANT. JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW v. JAMES COMER, COMER, JAMES B. COMER AND JAMES F. A/K/A DEFENDANT-APPELLANT. Arguеd October Decided March2008. *4 Perrone, Counsel, argued the for Designated cause Alison S. (Yvonne Defender, Segars, Public appellant Adams Smith Ibn Smith, Counsel, attorney; Designated Perrone and Alan I. Ms. briefs). Brody, Deputy Defender, Susan argued Assistant Public appellant cause for Segars, James Comer Smith Public Evonne Defender, attorney). Prosecutor, Cunningham, argued
LeeAnn Assistant the cause (Paula Dow, respondent Prosecutor, County for T. Essex attor- ney; Cunningham Brunell, Hilary Ms. and L. Executive Assis- briefs). Prosecutor, tant on the Screen, General, Deputy Attorney
Jeanne argued the cause for (Anne Attorney Jersey Milgram, amicus curiae General of New General, Attorney attorney). JR., WALLACE,
Justice opinion delivered the of the Court. In appeals, these back-to-back consolidated for the purpose opinion, this Ibn defendants and Adams James were Comer charged аrising multiple with various out offenses robberies defendant, Harrison, a A charged homicide. third Dexter with similar in separate During offenses but indictment. investigation, criminal police engaged in optimal than out- less photograph of-court techniques. Following a hear- ing admissibility to test defendants, of those identifications of the trial procedures unduly court found the used suggestive, but nevertheless reliable therefore admissible. Adams and together jury. Harrison, Comer were tried before a who reached plea agreement State, with the was a crucial witness for the against State its case Adams and Comer. Defendants did not request, specific and the trial court did not give, jury charge that guilty plea only Harrison’s could be considered assess his credibility jury and that the carefully should scrutinize his testi- mony in light special of his interest the case. Adams and felony-murder, robberies, Cоmer were convicted of multiple weapons Although offenses. both lengthy defendants received sentences, any beyond consecutive no sentence for charge was then-presumptive for Appellate sentence each offense. The Divi- sion affirmed the convictions and peti- sentences. Defendants certification, tioned granted this Court for separate and we
191
Adams,
petitions.
650,
State v.
(2007);
189 N.J.
A .2d724 require do not remands.
I. A. Briefly, 2000, Adams, April Comer, and Harrison stole a car and robberies, committed several armed one of which resulted shooting in the George car, death of Paul. After the stolen a white Civic, Honda gas, they ran out of pushed it Stop to Tullo’s Truck they eventually where apprehended. A search of the three suspects and the stolen incriminating vehicle revealed evidence police the robberies. The suspects drove the headquar- three agreed ters where give Harrison a statement. He admitted they had committed two robberies in Orange East and that he had parked left his car on the police street. The obtained a search Nissan, warrant and searched Harrison’s from which recov- bar, boots, ered a snatch bookbag, pair jacket. and a Based statement, on Harrison’s Plaugir Detective John drove Harrison back to Stop Tullo’s Truck and retrieved a loaded .25 caliber handgun from During the bathroom. ensuing investigation, various police victims met with photographs and identified *6 property personal items of that had perpetrators and various from them.
been taken (1) and were indicted for second- Defendants Adams Comer robbery, N.J.S.A. degree conspiracy to commit armed 2C:5-2 2C:11-3(a)(3) (count (2) murder, one); first-degree felony N.J.S.A. (count (3) three); robbery, first-degree N.J.S.A. four counts (4) (counts ten, thirteen); four, seven, and six counts of 2C:15-1 third-degree possession handgun, of a N.J.S.A. 2C:39- unlawful 5(b) (counts eleven, fourteen, seventeen, five, eight, eighteen); and (5) possession weapon purpose, for an unlawful four counts of of a 2C:39-4(a) (counts (6) six, nine, twelve, fifteen); N.J.S.A. 2C:20-3(a) (count sixteen). theft, third-degree In addi N.J.S.A. murder, tion, first-degree charged was with N.J.S.A. Adams (2) (count two). 2C:11-3(a)(1) and separately. Harrison was indicted He entered Co-defendant pled guilty plea agreement into a with the State which he charges exchange for a sen- various recommended concurrent twenty years eighty-five-percent parole with an bar. The tence of depending quality quantity could on the sentence be lowered testimony against of Harrison’s the other defendants.
B. trial, suppress Prior to Adams and Comer moved to the out-of- Sachdeva, Allyson by Abernathy, Deru court identifications Dinis Atiabóla, Wright. suppression hearing, and Tassandra At the Kearny Department Montgomery Detective David of the Police Wright Orange Department and Detective Tom of the Eаst Police testified on behalf of the State. Montgomery April that around 5:20
Detective testified a.m. attendant, 18, 2000, Sachdeva, gas Dinis station arrived at police gave Montgom- station and a statement. Detective When ery single photographs showed Sachdeva Polaroid of the three defendants, immediately photographs Sachdeva identified the Harrison, identify Comer and but could not Adams. Detective Montgomery photo- testified that he showed Sachdeva individual graphs just of the three men because had identified “[Sachdeva] them at the wanted to from scene and we take a statement him as his observations.” morning, Montgomery
Later that same Detective interviewed Wright.1 paycheck Tassandra She indicated that her stolen gun point. Montgomery from her at Detective showed Tassandra single photographs suspects the samе he had shown to Sachdeva. Tassandra identified Adams the man who as entered passenger paycheck, side of her car and stole her Comer as approached the man who pointed driver’s side window and handgun her, and Harrison as the Honda the driver of Civic. 20, 2000, Wright April days
Detective that on testified two after robbery, Abernathy Orange he interviewed Deru at the East *7 Department. Police Wright displayed Detective said that he time, twenty to pictures Abernathy, fifteen at a one and told people pictures may responsible him that “the in the be for the robbery against Abernathy that place took him.” identified passengers and Adams Comer as the in the car and Harrison as the driver. Wright explained
Detective that he he did not have knew an appropriate array, photos he was but unable to locate suitable despite contacting police departments. four other He claimed that he was under time constraints to obtain identification from the Orange charges East victims that so could be filed. Detective Wright would admitted that he not have used assortment of non-suspect photos Abernathy proper array showed to in a he depicted enough suspects. because the men were not similar Except photos Abernathy for the three defendants that select- ed, Wright photos. Detective testified he discarded the other Wright Allyson April
Detective met with also Atiabóla on single photos 2000. He showed suspects. her three of the three passenger, Atiabóla identified as the Adams rear Comer as the Wright Wright Because share Tassandra Detective Tom the same last Wright’s name, we use Tassandra first name to her. identify person present at Harrison as the third passenger, and
front seat proce- acknowledged that the Wright scene. Detective the crime procedures for identifica- from the standard used deviated dure he over, differently. it would do that if he had it to do he tions and suppress the motions to trial court denied defendants’ defi- procedures The court found identifications. sugges- not so process was nitely suggestive but “the identification degree that to such a the out-of-court identification tive as to taint support In process due of law.” defendants were denied their conclusion, had a found that: all of the witnesses of that the court defendants; they were certain about good opportunity to view identifications; prior no inconsistencies with their there were their defendants; on defen- their attention was focused descriptions of crimes; durations of time between the during the and the dants relatively were all short. incidents and the identifications C. trial, presented evidence to show that around 11:30 At the State Abernathy talking a friend April was in his car p.m. on by, stop, and pass Nissan phone on a cell when he noticed blue Abernathy each other. then reverse until the vehicles were beside occupants pointing guns at peered into the car and noticed the men, Abernathy identified as Adams him. Two of the whom later Nissan, Comer, Abernathy, approached forced got out of the car, yelled “stickup.” The assailants took him from his watch, chains, Abernathy’s gold Samsung phone, cellular Movado jacket, Abernathy that one of the men and boots. believed leather *8 hand- weapon and the other a .380 caliber held a nine-millimeter gun. left, Abernathy police. went home and called the
After the men phone phone reported the thеft of his cellular He also later, A company to deactivate it. short while and instructed them phone company if the had his cellular number to see he called request and was shocked to hear one complied with his Abernathy anger hung up, expressed his assailants answer. but then received a call back from a man who told him that “we got you, could you have saying.” trial, know what Pm At Aberna- thy identified Comer as passenger the front seat handgun, with a and Adams as the back passenger approached seat who him with a gun. He also testified that previously he had made an out-of-court identification of Adams and Comer. night
That George same Paul was shot to death on Park Avenue Orange. East Except for testimony, Harrison’s which is sum- below, presented marized eyewitnesses State no to the shoot- ing. police recovered Paul’s spent wallet and a nine-millime- ter casing shell at the scene. 18, 2000,
Attabola testified that April around 2:00 a.m. on she parked car in parking her lot Prospect Street across from her Orange East street, home. As carrying she crossed the bookbag groceries, and some stopped a white car alongside of her and two people jumped men, out. One of the whom she identified as Adams, pointed handgun a black repeatedly at her and asked her “where it was at.” She testified that Adams pockets searched her and took bookbag containing wallet, her identification, her picture t-shirt, sweatpants, and her husband’s bank card. Attabola also testified that she made out-of-court identifications of both Adams and Comer. night Tassandra,
The final victim that was postal worker at trial, Airport. Newark At following. she testified to the Around a.m., 3:00 driving she was home on Kearny Route & 9 in when a white Honda Civic cut her off. The stopped same car beside her lights, three consecutive red permitting her to see the three Later, men inside. while parking Tassandra was her car on the home, Jersey City street near her the white Honda crashed into the front of her car. Harrison driving. Tassandra turned to tap see Comer on her window handgun money. with a and demand Adams then passenger entered her front door and removed her paycheck employee identification. As soon as men de- parted, Tassandra Jersey City called the police report incident. During her interview with a detective later that mom- *9 specified and the role that each
ing, all three men she identified played during the crime.
Sachdeva, Stop Kearny, testi- at Tullo’s Truck the attendant 4:00 when he three working fied was around a.m. observed that he told young a Honda into the station. He pushing men white Civic gas a.m. to they them would to wait until 5:00 receive have pumps not until then. Sachdeva because the activated for of the for fuel suspicious became when one men asked diesel gas-fueled A conversa- car. truck driver who overheard the suspicious police. called tion became and also Dougan and Kearny Sergeant police John officer Dennis Gascier responded stop. to the to the truck Sachdeva directed them ignition missing. Sergeant Dougan Honda. noticed that the was men, approached having knowledge any He who denied three bookbag point, dropped of the At he vehicle. some Harrison carrying and and Comer walked into bathroom. Adams police backup. Montgomery for David and The called Detective responded opened two officers to the scene. One of officers bookbag handgun, phone, and found a loaded .380 a cellular a headset, recorder, tape sunglasses, clothing. some a women’s police placed The the three men under arrest and searched them. watch, police gold two phones, The recovered several cellular a chains, charm, gold jewelry paycheck out made to Tassandra Wright, an card in name. the same police transported headquarters.
The Detective defendants to Harrison, Haverty Plaugir John interviewed who Officer agreed give a that the statement. Harrison said three defen- Orange dants had committed two robberies in East and that handgun had hidden loaded .25 caliber the bathroom stop. police stop truck returned to the truck and located handgun that was in the hidden bathroom. acknowledged He
Harrison testified on behalf the Statе. second-degree pled guilty aggravated manslaughter, that he robbery, conspiracy, first-degree receipt four stolen counts of *10 property, fourth-degree and exchange criminal mischief in for a twenty-year recommended eighty-five-percent sentence with an parole disqualifies that, He part stated as of plea agreement, his agreed testify against he to Adams and Comer.
Harrison that testified the three of them met and decided to rob people. handgun, some had a He .380 while Adams had a nine- handgun millimeter and Comer had handgun. a .25 caliber Harri- they Abernathy son Orange. said robbed in They East then drove Avenue, to Park got where Adams and Comer of out the ear and George robbed Paul. Harrison searching claimed that Adams was pockets Paul’s gun when he heard shot. Adams When and car, Comer why returned to the Harrison asked Adams he shot Paul. Adams replied that money. it because Paul no had that, time,
Harrison testified at that told he Adams and Comer more, that did not any he want to his car they use Nissan so They to steal decided a vehicle. to drove Newark where Adams used a snatch bar steal a white Honda Civic. Harrison then parked Avenue, his on leaving Nissan Central several stolen items in the car.
They proceeded then to rob Orange Attabola East and Jersey City. Tassandra they Harrison that said when were bridge driving over a Route & Adams tossed his nine- handgun out millimeter window. He testified that were gas Kearny at a arrested station in after the ran out gas Honda of police and the arrived. testify.
Adams Comer did not The sole witness defendants Wright, called was Detective who confirmed that he showed Abernathy twenty photographs fifteen him asked to identi- fy perpetrators. Wright Detective admitted he destroyed that photos Abernathy acknowledged not did select. He during photo by Attabola, only he showed her photos. three or four Wright Detective admitted that the identifi- procedures cation protocol, he used not standard but he was likeness, photos unable to quality, locate other of similar and color. murder, felony guilty conspiracy, two jury The found Adams second-degree rob- robbery, two counts of first-degree counts of theft, found not weapons Adams was bery, and seven offenses. weapons additional offenses. trial guilty of murder and three thirty-year imprisonment Adams to a term court sentenced Additionally, felony-murder conviction. parole without for fifteen-year for the sentences Adams received two consecutive Atiabóla, seven-year Abernathy and robberies of first-degree robbery Wright, second-degree all for consеcutive sentence disqualifiers, concurrent subject eighty-five percent parole aggregate four-year weapons offenses. Adams’ terms for prison years sixty-seven years in with 61.45 without sentence was parole. *11 murder, felony guilty conspiracy, of three jury
The found Comer second-degree robbery, count of rob- first-degree one counts of theft, acquitted of bery, weapons Comer was and nine offenses. imposed thirty- weapons The trial court one additional offense. murder, felony year imprisonment parole for the term of without eighty-five percent fifteen-year with three terms an consecutive Attabola, Abernathy, the of and parole disqualifier for robberies weapons Wright, four-year on offenses. and concurrent terms the seventy-five years aggregate was with 68.25 Comer’s sentence parole. years without separate appeals raising numerous
Adams and Comer filed arguments. Appellate appeals The Division consolidated the for unpublished per opinion affirmed in one purposes of Adams, A-4915-03T4, 2006 v. WL 3798760 opinion. curiam State (Dec. 2006) 1). 28, The credible (slip op. panel at found sufficient support the trial court’s conclusion that the out-of- evidence and, alternatively, if court were reliable even identifications erred, overwhelming guilt of trial the evidence so court panel also that a any was harmless. Id. at 4-5. noted error court, normally jury charge if requested, trial should evaluating testifying guilty plea when consider a co-defendant’s witness; credibility given only charge of that but the need be requested requested if and it was Finally, not here. Id. at 7-8. panel rejected defendant’s contentions that the trial court’s sentencing then-existing presumptive terms violated Nótale principles. at Id. 14-15. petitiоned
Both defendants
this Court for certification. We
granted
petition separately,
each
limited to the same three issues:
(1) whether the out-of-court and in-court identifications should
(2)
excluded;
have been
whether the trial court
plain
committed
failing
jury
error in
to instruct the
on how to consider Harrison’s
(3)
testimony
guilty plea;
imposed
whether the sentence
Natale,
principles
supra,
violated the
II. Division, Appellate Before the defendants asserted error that, trial finding notwithstanding court’s suggestiveness procedures, the identification the out-of-court identifications were time, us, reliable. For supplemental the first briefs before urge present defendants that we abandon the standard of admissi- bility identifications, for type one-on-one which allows this suggestive judicial identification to be admitted at trial based Instead, reliability. determination of argue defendants that we adopt a unnecessarily new standard that would exclude suggestive *12 regard judicial identifications without to a determination of relia- bility. Alternatively, that, urge defendants even under the cur- standard, rent procedures by police the identification used impermissibly suggestive very were and resulted in a substantial irreparable likelihood of misidentification. con- Defendants also limiting concerning tend that the absence of a instruction proper guilty plea deprived use of Harrison’s them of a fair trial. Finally, defendants that contend should be resentenced in light of our in decision Nótale. contrast, urges not consider defendants’
In the State that we supplemental in argument, raised for the first time defendants’ briefs, long-standing in to abаndon the adherence to our standards admissibility Ap- determining the of out-of-court identifications. here, that, argues although plying our current standards the State suggestive, the the out-of-court identifications of defendants were procedures suggestive not so to create a substantial were as Further, irreparable likelihood of misidentification. the State plain failing in contends that the trial court did not commit error provide limiting charge on sponte to sua the uses Harrison’s guilty plea, imposed and that the sentences do not violate the Additionally, Attorney urges principles of Nótale. General that sentences are consistent with Natale because the defendants’ then-presumptive sentences do not exceed the terms.
III. A. request adopt turn first to defendants’ that we new We admissibility standards to determine the of out-of-court identifica Herrera, Recently, argument in tion evidence. we faced a similar recognized fallibility 187 N.J. at 902A.2d We 177. adopt of identification evidence but declined a new standard adequate without an record. 902 A.2d Id. 177. We said arguments [w]e if have no reason to doubt that defendant had raised these before the trial court and submitted the current research in of his for a support request determining new standard for identification, a different admissibility showup record would have been made. The trial court would have received the evidence and made its and the Division decision, then would have had a full record Appellate arguments In event, to review. defendant now makes would be properly light In in before us. the absence of such a of our consistent record, deciding of federal constitutional application precedent admissibility evidence, we dеcline to a new standard under our state adopt constitution. [Ibid.] Division, Appellate urged
Before defendants that the identi- procedures impermissibly suggestive, fication resulted
201 misidentifieation, and not reliable. of substantial likelihood record, argue, that and did not Defendants failed to make admissibility showup altered. for evidence should be standard our separate petitions for certification submitted after Even in the Herrera, arguments relied on the made decision in each defendant our suggest not that we alter Appellate in the Division and did supplemental not until filed their present standard. It was presented. argument that the briefs matter, part find no reason to light In of the record in this we Herrera, in after the trial from our decision in which we decided case, appropriate of an record in present that in the absence 501, court, аt adopt “decline to a new standard.” Id. the trial we encourage parties present A.2d 177. continue to 902 We gauging improve our standards for proper record in an effort to admissibility procedures. Until of out-of-court identification Herrera, then, made clear in as we followed the United States Court’s [o]ur analysis Court has consistently Supreme determining in-court identifications. State
in of outH>f-court and admissibility (1988). that a A.2d 254 Until we are convinced Madison, 223, 233, v. has been made in the trial is after a record proper different approach required we continue to follow the Court’s court, approach. Supreme [Id. 177.] 902 A.2d subsequent procedures note also that to the identification
We
case,
Jersey Attorney
in 2001 the New
General’s
conducted
this
insure
guidelines
[sic]
issued
that were intended “to
Office
in this state minimize the chance
procedures
identificаtion
Attorney
suspect.”
General Guidelines
misidentifieation of
for
Lineup
Preparing
Conducting
Photo and Live
Identification
2001)2 (the Guidelines).
explaining
In
(Apr.
Procedures
Attorney
improved
procedures, the
General
need for
cases, ninety
study DNA
that in “one 1998
exoneration
noted
analyzed
more mistaken
percent of the cases
involved one or
Herrera,
N.J. at 511-
are attached to our
The Guidelines
opinion
177.
902 A.2d
*14
Herrera,
eyewitness
identifications.” See
N.J. at
The Guidelines
that
to the identification
dure,
perpetrator
...
witness should be instructed
that the
“[t]he
and, therefore,
may
among
photo array
those in the
...
not be
they
compelled
should not feel
to make an identification.”
Id. at
provide
1. in Include one each identification only suspect procedure. (nonsuspects) generally 2. Select fillers who fit the witness’ of the description When there is a limited or of the perpetrator. inadequate description perpe- trator or when the witness, of the provided by description perpetrator significantly differs from the of the fillers should resemble appearance suspect, significant in features. suspect 3. Select a that resembles the or at the photo suspect’s description appearance if time of the incident are available multiple photos suspect reasonably investigator. (nonsuspects) Include a minimum of five fillers 4. identification per procedure. placing 5. Consider different each when conduсt- suspect positions lineup ing more than one for a case due to witnesses. lineup multiple reusing showing 6. Avoid fillers in shown to the same witness when a new lineups suspect. arrest(s) writings concerning 7. Ensure that no or information will be previous visible to the witness. 8. View the once to ensure that the does not array, completed, suspect unduly stand out. 9. Preserve the order of the In presentation photo lineup. addition, photos original themselves should be in their condition. preserved [Ibid] addition, recently supervisory powers
In
we
exercised our
over
impose
the administration of our criminal courts to
several limita-
tions on the
of out-of-court
require
use
identifications. We now
officers,
law enforcement
a condition
as
to the admission of out-of-
identifications,
court
make
maintain a written record detail-
48, 68,
Delgado,
procedure.
v.
N.J.
ing the identification
State
(2006). And,
year
model
last
we directed that our
B.
pro
now to consider whether the identification
We turn
impermissibly suggestive
in this case
so
cedures
by
reliability.
making that
any
saved
indicia of
In
could not be
determination,
findings at the
we are mindful that the trial court’s
admissibility
are “entitled
hearing on the
of identification evidence
*15
Farrow,
434, 451,
v.
very
weight.”
considerable
State
61 N.J.
(1972).
is,
findings
trial
that
A.2d
That
the
court’s
294
873
not be
photographic
procedures
identification
were reliable should
in the record to
if there is sufficient credible evidence
disturbed
Locurto,
470-71,
463,
findings.
v.
157 N.J.
support
the
See State
(1999).
In our
determine
identification,
must
reviewing
the
court
bility of an out-of-court
“
procedure
impermissibly
‘аscertain whether the identification
first
” Romero,
76,
A.2d
sugg
supra, 191
at
922
N.J.
estive.’
177).
Herrera,
503,
at
A.2d
(quoting
supra, 187 N.J.
902
693
admissibility
inquiry
being
preliminary
tested in the
as to
“What is
his own
by
represents
choice
the witness
is whether
the
made
the
it in fact resulted from
independent
recollection or whether
Far
words or conduct of a law enforcement officer.”
suggestive
row,
451,
is
supra,
procedure
declared that is the the ” admissibility testimony.’ Madison, of identification State v. 109 (1988) 232, Brathwaite, 223, (quoting N.J. 254 A.2d Manson v. 98, 114, (1977)). 432 U.S. S.Ct. 53 L.Ed.2d Court forth Manson set the factors should be considered determining reliability. [T]hе of of the witness view the criminal at the time the the crime, opportunity degree witness’ of the of his of the attention, accuracy prior description criminal, the level demonstrated at the time certainty confrontation, the between the Against weighed corrupting crime and the is to be the confrontation. these factors suggestive effect of the identification itself. [Ibid,]
If the after evaluation those factors the is court convinced that, notwithstanding suggestive procedure, nature the reliable, is may witness’s identification then the identification be Herrera, 503-04, into admitted evidence. 187 N.J. at A .2d 177. here,
Applying those standards is not disputed it procedures by police followed with each of the impermissibly suggestive. witnesses were question The essential reliability is whether there was sufficient in the identifications to suggestive overcome the nature and еstablish that was not there irreparable substantial likelihood of misidentification. identifications, considering reliability In the trial following: court found Each of these one witnesses were about identification, certain notwith- quite
standing suggestibility. *16 had what They every—based said to had upon they officers, every opportuni- to view the time of ty defendants at the the crime. had their certainly attention focused on the defendants who were They commit- ting the crimes. regard no There was inconsistencies with to their of defendants. descriptions And the time between the crime and confrontation was ... short. relatively notwithstanding is, There therefore, little doubt that, identifica- quality suggestibility tion used, the of procedures the identification used, the, procedures regard lack with frankly, the identification competence exercised, procedures notwithstanding suggestive and were nоt so as to a they create substantial being the out-of-court case, That misidentification. likelihood of irreparable in their entirety. identifications are admissible us that there was record convinces examination of the Our court to reach those for the trial credible evidence sufficient court, by the evidence showed found the trial conclusions. As opportunity to view the defendants had an all the witnesses witnesses wearing not masks and the Defendants were identified. distance. Aside from a short to observe defendants were able Tassandra, lighting poor, as witness to describe the from the lone lighting adequate as described the other witnesses all gas many lights on at the that there were good: testified Sachdeva good” station; visibility “pretty Abernathy that his said overhead; described streetlight and Attabola was a because there “coming streetlights from the visibility due to the as “fine” her building. witnesses also light her parking lot” and the behind respective they paid to their encounters the attention testified to good at got she a look Tassandra testified that with defendants. at got good look eyes, Attabola testified that she Comer’s Harrison, defendants, get good look at but did not two of the addition, inability identify him. In Aberna- explained which her primary focus was on the acknowledging that his thy, although every- face, was able to view that he gun pointed in his testified thing got good look defendants. else were no inconsisten- court found that there Although the trial prior descriptions, both accuracy the witnesses’ cies with inaccuracies in on cross-examination established defense counsel Abernathy’s ini- example, descriptions. initial For the witnesses’ height same at about the listed defendants tial statement cleаrly taller than Comer is weight, that is not correct because but hand, noted properly of the witnesses all Adams. On the other complexion than Comer and several a darker that Adams was of Furthermore, height differences. correctly noted the witnesses back seat consistently that Adams was the stated all of the victims passenger. was the front seat passenger while Comer and the the initial encounters Additionally, the times between identi- relatively short. All of the photo identifications later *17 206 days
fications were
two
the
made within
of
incident. Sachdeva’s
actually was
made a little over an hour after the
incident, and Tassandra’s identification was made within a few
See,
Brathwaite,
e.g.,
hours.
Manson v.
432 U.S.
97
at
S.Ct.
(1977) (“The
2253-54,
photographic
at 155
L.Ed.2d
identifica
place only
days
tion took
two
later. We do not have here the
of
passage
viewing
weeks or months between the crime and the
of
Madison,
photograph.”);
supra,
the
109 N.J. at
A.2d
(“A
lapse
month
two
time
without more ... does not cause us to
inadmissible.”);
conclude that
the
evidence
identification is
Herrera,
(noting
We based there was sufficient evidence the record for the trial court to conclude that, despite suggestive clear nature the identification procedures, the identifications were reliable and did not result in a substantial likelihood of Consequently, misidentification. we find no reversible error in the admission of the out-of-court identifica- tions.
IV. give Defendants assert error in court’s the trial failure limiting concerning plea instruction guilty of co-defendant Speсifically, Harrison. defendants trial contend that court jury guilty plea failed to instruct that only Harrison’s could be credibility jury considered assess his should view testimony his suspicion light plea agreement. with of his Fur ther, they urge court jury that the should have instructed the guilty plea Harrison’s could not be as used substantive evidence of guilt. their trial, object
Because defendants did not instructions at we plain consider these issues under the error R. rule. 2:10-2. Generally, a right defendant waives the to contest an instruction *18 required by as appeal object does not to the instructions if he Nevertheless, may appellate court reverse on the Rule 1:7-2. an unchallenged if the court finds that the error was basis of error “clearly unjust 2:10-2. producing of an result.” R. capable explained plain in the context of a have error
We
“[ljegal
charge prejudicially
in
jury charge
improрriety
is
the
sufficiently
affecting
griev
rights
substantial
of the defendant
the
by
reviewing
justify
notice
court and to convince the
ous
the
capacity
bring
a
possessed
court
itself the error
clear
that of
Jordan,
409, 422,
unjust
an
result.”
v.
147 N.J.
688
about
State
(1997) (citations omitted).
charge
jury
A.2d 97
to the
must be
any
determining
read as whole
whether there was
error.
a
that, “[although arguments
by
of counsel can
Ibid. We note also
court,
by
no
as a
for instruction
means serve
substitute
prejudicial
of an
instruction must be evaluated in
effect
omitted
totality
circumstances—including
light of
all
instruc
jury,
arguments
of counsel.” State v.
[and]
tions
(1991) (citations
1, 145,
85,
Marshall,
N.J.
A.2d
123
586
denied,
929,
omitted),
113
quotations
internal
cert.
507 U.S.
S.Ct.
1306,
(1993). Nevertheless,
694
because clear and
122 L.Ed.2d
trial,
jury
correct
instructions
fundamental to a fair
erroneous
are
“poor
in a criminal
are
candidates for rehabilita
instructions
case
Jordan,
theory.”
plain
tion
error
147 N.J. at
under the
omitted).
(citations
422,
quotations
688 A .2d97
and internal
long
may
“a
be convicted
have
noted that
defendant
We
testimony
accomplice.”
solely
of
State
on the uncorroborated
an
(1961). However,
35, 54,
Begyn, N.J.
A.2d 161
because
v.
34
167
testimony,
conflict in
“a defendant has
of
inherent
such
upon
jury
to a
‘that the evidence
right,
request,
specific
instruction
carefully
in the
accomplice
an
is to be
scrutinized and assessed
of
”
(quoting
proceeding.’
in the
Ibid.
specific
context
his
interest
(1954)).
80,
sure,
To be
v.
16 N.J.
106 A.2d
Spruill,
State
278
“
accomplice
invites
‘the
of a witness as an
or codefendant
status
credibility.”
special
respect
to that witness’s
consideration’ with
(1998)
Harris,
122, 179,
(quoting
v.
Although
may
guilty plea
co-defendant’s
be consid
credibility purposes, may
ered for
it
be
not
used as substantive
Stefanelli,
State v.
78 N.J.
guilt.
evidence
the defendant’s
(1979).
430-33,
recognize
In present the trial court should have instructed the jury carefully scrutinize testimony, co-defendant Harrison’s not guilty to consider plea his as substantive evidence of defen- guilt only assessing dants’ but credibility. Harrison’s Defen- dants, however, requested neither those nor instructions did object given. to the instructions question that were then is trial, whether in the clearly context of the capable error was of bringing unjust an about result. plain
We find no
give
error
the court’s
cautionary
failure
instruction on the allowable
guilty plea
uses Harrison’s
and his
Stefanelli,
See
testimony.
supra, N.J.
at
In
because
impose
the trial
could
sentence that
court
term as
maximum
resentencing,
“a sentence above
for
we held that
without a remand
finding
solely
judicial
statutory
on a
presumptive
term based
conviction,
factors,
prior
than a
criminal
aggravating
other
guarantee.”
jury trial
Sixth Amendment
violates
defendant’s
added);
v.
see State
(emphasis
VI.
judgments
Appellate
Division are affirmed.
ALBIN, concurring.
JUSTICE
Herrera,
493,
(2006),
In State v.
187 N.J.
However,
Herrera,
by my
I stand
dissent
in which I
stated
is time for this Court to
“[i]t
announce that the use of
unnecessarily suggestive
procedures
identification
violates the due
I,
proсess guarantees of
Paragraph
Jersey
Article
of1
the New
(Albin, J.,
Constitution.”
N.J.
at
A.2d 177
dissent
ing).
suggestive
“The
permits highly
current standard
identifica
procedures,
unnecessary,
long
tion
however
so
as a court later
Romero,
ratifies the identification as otherwise reliable.” State v.
59, 81,
(2007) (Albin, J.,
This Court should unnecessarily using a discourages from law enforcement potential for mistaken identifications technique that maximizes the today, based on the wrongful prepared I am convictions. Court, highly suggestive prohibit to arguments made to our showing single suspect of a procedures, such as the witness, necessary exigen- except due an when photograph developed record be majority proper insisted that a cy. The has given altering our consideration is the trial level before day open, majority left the door law. has present Because record, come, for our to articulate proper Court will soon with the minimizes, rather than standard identification cases increases, the likelihood of misidentifications exponentially wrongful convictions. joins opinion. in this LONG
Justice LONG, Justice and Justices RABNER For affirmance—Chief LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO HOENS—7.
Opposed—None.