NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0173-12T3
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, July 29, 2014 v. APPELLATE DIVISION ALFRED J. SMITH, a/k/a AL J. LEWIS, JEROME SMITH,
Defendant-Appellant. _______________________________
Submitted April 8, 2014 - Decided July 29, 2014
Before Judges Sapp-Peterson, Lihotz and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-12-1062.
Joseph E. Krakora, Public Defender, attorney for appellant (Jason A. Coe, Assistant Deputy Public Defender, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Jeffrey P. Mongiello, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
LIHOTZ, J.A.D.
Defendant Alfred J. Smith appeals from a judgment of
conviction for second-degree robbery, N.J.S.A. 2C:15-1 (count
one) and third-degree hindering apprehension, N.J.S.A. 2C:29- 3(b)(4) (count two), entered following a jury trial. Prior to
trial, defendant challenged the admissibility of the victim's
out-of-court identification. His motion to suppress was denied.
Following conviction, defendant was sentenced to a ten-year
term, subject to the eighty-five percent period of parole
ineligibility imposed by the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, on the second-degree robbery conviction, and
a concurrent five-year term on the third-degree hindering
apprehension conviction.
On appeal, defendant argues:
POINT I
THE TRIAL COURT SHOULD NOT HAVE ALLOWED THE SHOW[-]UP IDENTIFICATION TO BE USED AT TRIAL BECAUSE IT DID NOT SATISFY CONSTITUTIONAL STANDARDS OF RELIABILITY.
POINT II
THE PROSECUTOR'S APPEAL TO THE JURY TO CONVICT SMITH IN ORDER TO PROTECT THEMSELVES AND THE COMMUNITY WAS IMPROPER AND HIGHLY PREJUDICIAL. (not raised below)
POINT III
OFFICER MARTINA IMPROPERLY PROVIDED LAY OPINION TESTIMONY ON AN ISSUE WHICH WAS NOT BEYOND THE KEN OF THE AVERAGE JUROR. (not raised below)
Following our review, we conclude the motion judge erred in
denying defendant's motion to suppress the identification
testimony. Accordingly, we reverse the suppression order,
2 A-0173-12T3 vacate his conviction and remand for further proceedings,
including a new trial.
These facts are taken from the pre-trial Wade1 hearing. The
State presented the testimony of Plainfield Police Officers
Edward Jackson and Charles Martina. The defense called the
victim, Josephine DiMeglio.
Officer Jackson testified he responded to a call received
at approximately 10:30 p.m., on July 10, 2009, from DiMeglio who
was assaulted and robbed as she walked toward her home.
Specifically, DiMeglio was suddenly attacked from behind by a
man trying to snatch her purse. A struggle ensued, during which
the assailant slapped DiMeglio, injuring her and causing her to
fall to the ground. The scuffle continued briefly as DiMeglio
resisted, but ultimately she relaxed her grip and the assailant
fled with her purse.
DiMeglio called 9-1-1. Then, approximately ten minutes
after the robbery, DiMeglio described her attacker to Officer
Jackson as "a tall black male" wearing "jeans and a dark shirt."
She also stated the attacker wore a brown windbreaker. Officer
Jackson confirmed on cross-examination the description was
"[j]ust a tall black male and a clothing description."
1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
3 A-0173-12T3 Officer Jackson radioed the description and within ten
minutes, Officer Martina, who was canvassing the area,
encountered defendant four blocks away sitting in a park with
others. Officer Martina believed defendant matched the radioed
description and he informed Officer Jackson, who in turn told
DiMeglio "we might have someone fitting the description
. . . ." Officer Jackson "asked her if she can take a ride [to]
see if she can make a positive ID on the person." Officer
Jackson brought DiMeglio to the park. He recalled defendant was
standing next to Officer Martina. Without hesitation, DiMeglio
identified defendant as her assailant.
After DiMeglio viewed defendant at the show-up, she
provided her written statement to police. In that statement,
DiMeglio described her attacker as: "Afro-American, 6feet [sic]
tall, 5-8, brown shirt, cap and black pants."
Officer Martina also testified. He recalled the
description of DiMeglio's assailant radioed from Officer Jackson
was "[a] black male, black shirt, brown windbreaker, over six
feet tall." As he drove toward the park he aimed his spotlight
on "a group of people, [and an] individual matching the
description[] immediately looked startled and scared."
Defendant was among those in the group. He wore a black hoodie
and brown pants; he did not have a windbreaker. Officer Martina
4 A-0173-12T3 acknowledged the description he received was not the most
detailed and did not include the alleged assailant's age, the
presence or absence of facial hair, or whether he was bald.
When asked by Officer Martina, defendant gave his name as
"Thomas J. Smith." Once Officer Martina was told DiMeglio
identified defendant as her attacker, he was arrested and
charged with second-degree robbery and third-degree hindering
apprehension.
When arrested, defendant possessed a $5 bill, $1.75 in
change, a silver chain, four keys, two shoestrings, a driver's
license, three cell phone batteries, a cell phone, and a brown
cap. DiMeglio's later-provided police statement listed the
following as stolen: "a gold canvas bag" containing her wallet,
two money orders, $100 cash, and her identification cards. None
of these effects were found on defendant's person or recovered.
Defendant called DiMeglio during the hearing. She
described the incident, confirming an assailant approached her
from behind and grabbed her purse, but she would not let go.
She was "shocked" and "started to scream," because she did not
want the assailant to take her property. The attacker slapped
DiMeglio on her right cheek, bruising her lip and causing her to
fall. She was still holding the leash of her bag when the
assailant dragged her in an effort to get her to release her
5 A-0173-12T3 grip. She ultimately let go and he fled with her purse.
DiMeglio admitted the events unfolded "very quickly."
DiMeglio noted the attack took place at nighttime, but
there was one streetlight across the street. Defense counsel
asked her to describe the most prominent details she recalled
about her attacker. For the first time, DiMeglio stated her
assailant "was smoking a cigar," saying he had a "Black and Mild
in his mouth." She explained he had hair, although noting
defendant as he sat in the courtroom was bald. The remaining
details of the attacker's description included that he "was
tall," had a scar on his mouth, "a cap on his head," and wore
"something black and something brown[.]"
DiMeglio was also questioned about the show-up. When she
was taken to the park, she was told "they had apprehended him
and he was across the street in the park, . . . [and they wanted
her] to take a look at him and to see if he was the man that
mugged [her]." DiMeglio recalled a man standing between two
police officers. She immediately recognized his face. When
asked "[w]hat was the greatest feature that confirmed to you
this was the same man[,]" she stated: "[h]e had the same clothes
on when he robbed me and it was him. He had the black jacket
[and] brown pants. I recognized his face when he mugged me. It
was his features." Pressed to reveal the identifying features
6 A-0173-12T3 of her attacker, DiMeglio stated: "It was his eyes. . . . They
were mean." When questioned by the State, DiMeglio stated she
was one "[h]undred percent sure" defendant was her attacker.
Considering defendant's motion to suppress DiMeglio's out-
of-court identification, the motion judge found the police
officers' testimony credible in establishing the events.
Further, the motion judge found DiMeglio "extremely credible"
and "extremely accurate." Despite the suggestiveness of the
procedure, the motion judge determined DiMeglio's identification
was reliable because she "had a close physical one-on-one
contact with . . . defendant and had ample opportunity to view
him"; her account was detailed suggesting she "paid attention to
the details of her assailant"; "the show[-]up occurred almost
immediately after the incident and defendant was wearing similar
clothes and was similar in appearance to [DiMeglio's] original
description . . . made about ten minutes earlier"; DiMeglio was
able to identify defendant, with certainty, a finding supported
by the officers' testimony about the immediacy of her
recognition of defendant and her own testimony that she was "one
hundred percent" certain defendant was her assailant; and she
provided the identification proximate to the attack, "shortly
after the incident, approximately ten minutes[,]" and only three
7 A-0173-12T3 or four blocks from the scene of the crime. Defendant's motion
to suppress the identification was denied.
The case was tried over two days by another Law Division
judge. Defendant attacked the State's identification evidence.
We note DiMeglio's trial testimony varied in many significant
respects from her testimony at the Wade hearing. DiMeglio
stated her attacker approached her not from behind, but
"sideways," from her left side. She stated she saw the
assailant's face, first as she walked along the street then the
entire time he tugged at her purse until he successfully
dislodged her grip and ran off. She identified two working
streetlights in the area and recalled her description of the
attacker as an "Afro-American male, tall . . . wearing [a] black
hoodie and brown pants."
At trial the 9-1-1 tape was played. During her call,
DiMeglio told the operator it was dark, but she described the
man as wearing a black shirt, a brownish windbreaker and black
pants. When asked about the variations of her descriptions of
the assailant's clothing from her initial 9-1-1 call to trial,
DiMeglio testified she was initially "shaken up" and "didn't
really get to match everything, put everything together[.]"
DiMeglio did not describe any specific facial or physical
features of her attacker. In her trial testimony, DiMeglio
8 A-0173-12T3 never mentioned the attacker was wearing a cap; insisted he had
no facial hair; and stated defendant could not have had a scar
on his mouth.
In recounting the show-up, DiMeglio testified she was told
police had someone matching the description of her attacker.
They drove her to the park. She viewed the man standing between
two police officers and she identified him as her attacker.
DiMeglio stated she was "a thousand percent sure" because she
remembered his face.
On cross-examination, DiMeglio admitted the events occurred
"quick[ly]," taking "ten minutes." She stated she was extremely
scared after her assailant struck her and it was dark. She also
acknowledged that when she described her attacker to police she
stated only that he was tall, black and wore a black shirt and
blue jeans. Next, in giving her statement to police, she
described the assailant as 5'8" or 6' and wearing a brown cap,
black pants and brown shirt.
The jury returned a guilty verdict on both charges.
Defendant appealed.
The Due Process Clause of the Fourteenth Amendment
prohibits the admission of an unreliable out-of-court
identification, which resulted from impermissibly suggestive
procedures. Manson v. Brathwaite, 432 U.S. 98, 106, 97 S. Ct.
9 A-0173-12T3 2243, 2249, 53 L. Ed. 2d 140, 149 (1976); see also United States
v. Wade, 388 U.S. 218, 227-32, 87 S. Ct. 1926, 1932-35, 18 L.
Ed. 2d 1149, 1157-60 (1967) (holding pretrial identification is
a critical juncture in the course of a criminal prosecution).
On one hand, eyewitness evidence is "inherently suspect";
however, on the other, it is "equally well recognized that in
criminal actions an eyewitness's identification may be the most
crucial evidence." State v. Madison, 109 N.J. 223, 232 (1998)
(citation omitted), abrogated in part by State v. Henderson, 208
N.J. 208 (2011).
A sea change has recently occurred in the methodology for
examining suggestive police identification procedures and
ascertaining the reliability of resulting out-of-court
identifications. See Henderson, supra, 208 N.J. at 288-99;
State v. Chen, 208 N.J. 307, 327 (2011). Historically, courts
followed the United States Supreme Court's two-part test to
determine the admissibility of an eyewitness's out-of-court
photographic identification, set forth in Manson v. Brathwaite,
432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), which was
adopted by the New Jersey Supreme Court in State v. Madison, 109
N.J. 223 (1988).
In Manson, the Highest Court expounded on the test
initially identified in Simmons v. United States, 390 U.S. 377,
10 A-0173-12T3 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), which requires a court
to determine whether the out-of-court photographic
identification procedures used were impermissibly suggestive.
Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d
at 154. If so, the court then must examine whether the
objectionable procedure resulted in "a very substantial
likelihood of irreparable misidentification." Id. at 116, 97 S.
Ct. at 2254, 53 L. Ed. 2d at 155. When examining a challenge to
the admissibility of identification testimony, a court must
assess whether the impermissibly suggestive procedures used by
law enforcement prejudicially affected the identification, by
weighing five factors to "'determine whether . . . sufficient
indicia of reliability'" would "'outweigh the "corrupting effect
of the suggestive identification itself."'" Madison, supra, 109
N.J. at 239 (quoting State v. Ford, 79 N.J. 136, 137 (1979)
(quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53
L. Ed. 2d at 154)). These factors "include the opportunity of
the witness to view the criminal at the time of the crime, the
witness' degree of attention, the accuracy of his prior
description of the criminal, the level of certainty demonstrated
at the confrontation, and the time between the crime and the
confrontation." Manson, supra, 432 U.S. at 114, 97 S. Ct. at
2253, 53 L. Ed. 2d at 154.
11 A-0173-12T3 Underscoring "that reliability is the linchpin in
determining the admissibility of identification testimony[,]"
Chen, supra, 208 N.J. at 318 (quoting Manson, 432 U.S. at 114,
97 S. Ct. at 2253, 53 L. Ed. 2d at 154), we note any reliability
determination must be made after assessing "the totality of the
circumstances adduced in the particular case." Madison, supra,
109 N.J. at 233 (citing Neils v. Biggers, 409 U.S. 188, 199, 93
S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).
After Madison, the Court again considered eyewitness
identification challenges in State v. Delgado, 188 N.J. 48
(2006). Noting "[m]isidentification is widely recognized as the
single greatest cause of wrongful convictions in this
country[,]" id. at 60, the Court chose to exercise its
supervisory powers, granted by Article VI, Section 2, Paragraph
3 of the New Jersey Constitution, "to require, as a condition to
the admissibility of out-of-court identifications, that the
police record, to the extent feasible, the dialogue between the
witnesses and police during an identification procedure." Id.
at 51. The Court held the admissibility of out-of-court
identifications was conditioned upon the preparation of
a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results. Preserving the words exchanged between the witness and
12 A-0173-12T3 the officer conducting the identification procedure may be as important as preserving either a picture of a live lineup or a photographic array. When feasible, a verbatim account of any exchange between the law enforcement officer and witness should be reduced to writing. When not feasible, a detailed summary of the identification should be prepared.
[Id. at 63.]
By that time, "[t]he State's Attorney General ha[d] . . .
recognized that eyewitness identification 'evidence is not fool-
proof,' and made New Jersey the first state to adopt the United
States Department of Justice's procedural recommendations to
increase reliability in photo and live lineups." State v.
Romero, 191 N.J. 59, 74 (2007) (citing Letter from Attorney
General John J. Farmer, Jr., to All County Prosecutors et al.,
at 1 (Apr. 18, 2001) (accompanying Attorney General Guidelines
for Preparing and Conducting Photo and Live Lineup
Identification Procedures)).
The Supreme Court revisited and comprehensively considered
this thorny issue in State v. Henderson, 208 N.J. 208 (2011),
which established a more detailed framework to examine the
admissibility of out-of-court identification testimony, provide
new guidelines to reduce the possibility of misidentification,
offer a more adequate measure for reliability, and deter
potential police misconduct. Id. at 288-99. However, this case
13 A-0173-12T3 was decided before Henderson's new rule of law took effect and
remains subject to the prior rubric of Manson/Madison.2
Following our review, we conclude the motion judge
erroneously found factual support satisfying the Manson/Madison
factors and determined DiMeglio's out-of-court identification
was reliable and admissible at defendant's trial. We determine
the evidence of record insufficient to overcome the fact that
suggestive identification procedures result in a "very
substantial likelihood of irreparable misidentification."
Manson, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155.
Accordingly the out-of-court identification should have been
suppressed.
Show-up procedures used to illicit identification are
suggestive. See State v. Herrera, 187 N.J. 493, 504 (2006)
(recognizing that "one-on-one show[-]ups are inherently
suggestive[,]" because "the victim can only choose from one
person, and, generally, that person is in police custody").
However, indicia of reliability results because the on or near-
the-scene identification is made close in time to the event.
State v. Wilkerson, 60 N.J. 452, 461 (1972). The procedure
also facilitates efficient police work; consequently, the tool
2 See id. at 220 (applying new test prospectively, from September 4, 2012).
14 A-0173-12T3 has been found permissible. Ibid. Standing alone, a show-up is
not considered impermissibly suggestive. Herrera, supra, 187
N.J. at 504. See also State v. Wilson, 362 N.J. Super. 319, 327
(App. Div.) ("[T]here is no question that there was
suggestiveness present because the defendant was identified
while seated and handcuffed in the back of a police car.
However, such suggestive circumstances did not render the
identification procedure per se improper and
unconstitutional."), certif. denied, 178 N.J. 250 (2003).
Nevertheless, show-up procedures must be scrutinized to
assure police conduct, direct and inadvertent, does not
impermissibly suggest a result to the witness. In this matter,
defendant challenged the procedure used, asserting police failed
to satisfactorily comply with the Delgado recording
requirements. The motion judge rejected this argument and found
the identification procedures were properly executed, such that
they "did not result in a substantial likelihood of irreparable
misidentification." We cannot agree with such an assessment.
The only written record memorializing the show-up procedure
is a brief mention in the July 9, 2010 police incident report:
At that time [Officer] Martina detained the possible suspect until I was able to drive the victim to the suspect to see if she could make a positive [identification] on this possible suspect. Once I got to the location of the possible suspect, . . .
15 A-0173-12T3 DiMeglio related right away that he was the one who robbed her.
The limited comments recorded by police include DiMeglio's
identification, but omit what she was told, her response, or a
statement of the specific procedures employed to effectuate the
show-up.
Officer Jackson testified at the Wade hearing that after
Officer Martina encountered defendant, he "told the victim that
[the officers] might have someone fitting the description and
. . . asked her if she can take a ride with [him] so — see if
she can make a positive [identification] on the person."
However, DiMeglio stated she was told by police "they had
apprehended [her assailant] and he was across the street in the
park, and for me to take a look at him and to see if he was the
man that mugged me." There is a difference in these two
accounts, which displays exactly why a near-contemporaneous
record of the procedure is required. Further, there is no
evidence police instructed DiMeglio that the person located may
not be her attacker; to the contrary the suggestion was the
opposite, as she was told a suspect was apprehended.
Also critical to assessing suggestibility is a description
of the manner in which defendant was detained. Here, it was
learned at the Wade hearing uniformed police officers flanked
defendant. Although not handcuffed, defendant was separated
16 A-0173-12T3 from the others to focus DiMeglio's observation toward him
alone.
We conclude the meagerness of detail recorded in this
incident report does not fulfill Delgado's clear requirements.
Delgado, supra, 188 N.J. at 63 (conditioning admissibility of
out-of-court identifications on creation of a written record
detailing "the out-of-court identification procedure"). See
also Chen, supra, 208 N.J. at 320 (holding Delgado mandates a
reasonable, contemporaneous and detailed account of
identification procedure); State v. Adams, 194 N.J. 186, 202-03
(2008) (same). In mandating the specific procedures to be
followed, the Court stressed, "[t]he importance of recording the
details of what occurred at an out-of-court identification flows
from our understanding of the frailty of human memory and the
inherent danger of misidentification." Delgado, supra, 188 N.J.
at 60. The record requirement protects a defendant's rights
allowing examination of whether the procedure was impermissibly
suggestive.
We next examine whether the identification was reliable.
We conclude it was not sufficiently reliable and determine the
motion judge's findings, articulated in support of the
Manson/Madison factors, was flawed.
17 A-0173-12T3 The judge found DiMeglio's identification reliable because:
(1) DiMeglio "had a close physical one-on-one contact with . . .
defendant and had ample opportunity to view him"; (2) DiMeglio's
description of the incident was detailed and she "paid attention
to the details of her assailant"; (3) "the show[-]up occurred
almost immediately after the incident[,] defendant was wearing
similar clothes[,] and was similar in appearance to [DiMeglio's]
original description that she had made about ten minutes
earlier"; (4) DiMeglio identified defendant with "one hundred
percent" certainty; and (5) the identification was made "shortly
after the incident, approximately ten minutes[,]" and only three
or four blocks from the scene of the crime.
Despite DiMeglio's insistence she viewed her assailant
before and throughout the attack, making her one-hundred and,
later, one thousand percent certain defendant mugged her, the
only consistent descriptive features given of the man who stole
her purse was he was "tall" and "black." As to the attacker's
height, DiMeglio stated her assailant was "tall" or "5'8" to
6'." It was Officer Martina, not DiMeglio, who suggested he
remembered the radio call mentioning the suspect was "over six
feet." We note defendant stands 6'4" tall, making him at least
four and as much as eight inches taller than DiMeglio's
described attacker. Other details provided by DiMeglio were
18 A-0173-12T3 also vague and varied. When the 9-1-1 operator asked her to
describe her attacker, DiMeglio first stated it was dark and
mentioned he wore a black shirt, black pants, and a brownish
windbreaker. That clothing description changed ten minutes
later when she first spoke to police and gave a description that
included "blue jeans" and a "dark shirt." After DiMeglio
observed defendant in the park standing between the police
officers, she adjusted her description to a "brown shirt,"
"black pants," and a "cap." During the Wade hearing, the
clothing description was muddled, as DiMeglio stated the mugger
wore "something black and something brown," and she added he
wore a cap on his head. When pressed by defense counsel,
DiMeglio, for the first time, stated the attacker "was smoking a
cigar" – he had a "Black and Mild in his mouth"; had hair,
although noting defendant as he sat in the courtroom was bald;
had a scar on his mouth; and had "mean" eyes. By the time of
trial, DiMeglio's description again changed and she related
exactly what defendant wore when arrested, a black hoodie and
brown pants.
The motion judge's finding that DiMeglio "paid attention to
the details of her assailant" and offered an accurate
description of her attacker is unfounded. Not only was the
19 A-0173-12T3 clothing description wrong, defendant also had no scar on his
face or mouth and was bald.
Further, there are several facts not discussed by the
motion judge that impact the accuracy of DiMeglio's
identification and undermine any finding of reliability. These
include the darkness of the area, the suddenness of the attack,
and the resulting stress of the assault. See Henderson, supra,
208 N.J. at 247 (citing Gary L. Wells, Applied Eyewitness-
Testimony Research: System and Estimator Variables, 36 J.
Personality & Soc. Pyschol. 1546, 1546 (1978)) (noting
"distance, lighting, or stress" are variables capable of
"affect[ing] and dilut[ing] memory and lead[ing] to
misidentifications").
First, the area of the attack was dark. DiMeglio admitted
it was after nightfall and there was only one streetlight in the
area, located across the street. When she spoke to the 9-1-1
operator she stated she could describe the attacker's clothing,
but offered no distinguishing features other than height and
race. Interestingly, the only distinguishing features DiMeglio
eventually revealed about her attacker were he had hair and a
scar; neither of which corresponded with defendant's appearance.
Second, the attack was sudden, from behind, and was of
brief duration. DiMeglio herself admitted, the assault was
20 A-0173-12T3 "[n]ot too long," "it happened actually very quickly," and she
was "shocked" and "[s]cared."
Another significant issue not addressed by the motion judge
is the Court's prior discussions addressing "cross-racial
impairment," that is, difficulty in "identifying members of
another race[,]" which is "strongest when white witnesses
attempt to recognize black subjects." State v. Cromedy, 158
N.J. 112, 120-21 (1999) (internal quotation marks and citation
omitted). See also Romero, supra, 191 N.J. at 69 (discussing
"the convincing social science data demonstrating the potential
unreliability of cross-racial identifications of African-
American defendants specifically"). "Research suggests that
people generally are better able to identify persons who
resemble themselves or who share familiar physical
characteristics." Id. at 72-73 (citation omitted).
The vagueness and inaccuracy of DiMeglio's description
illustrates this difficulty and casts doubt on her ability to
perceive and describe her attacker. Rather than evaluate the
inconsistencies evinced by the facts, the motion judge simply
honed in on DiMeglio's statement she saw her attacker's face and
was certain it was defendant. DiMeglio's confidence in her
identification and the temporal proximity of the show-up cannot
sufficiently mitigate against the other factors that weigh in
21 A-0173-12T3 favor of a finding of unreliability. See Adams, supra, 198 N.J.
at 204.
The judge also erred in finding DiMeglio accurately
described defendant's clothing. In fact, the various clothing
descriptions offered by DiMeglio were inconsistent and did not
coincide with defendant's appearance on the night of the
robbery. Defendant's pants were brown not black or blue jeans.
Further, he wore a black hooded sweatshirt not a brown
windbreaker. It cannot be overlooked that DiMeglio modified her
description of defendant's clothing over time. After she saw
him at the park, she changed the color of his pants. During the
Wade hearing, the black pants and brown windbreaker morphed to
"something black and something brown." This changed again at
trial and she described her attacker wearing exactly what
defendant wore when he was stopped.
We reject the State's notion these are "[s]mall
differences" that are "immaterial." The clothing description
was the only specific detail DiMeglio offered to describe the
assailant. Yet, DiMeglio's shifting descriptions show she
either did not initially perceive or could not recall what her
attacker wore. She continued to add details as time passed and
those details, inexplicably, corresponded with other evidence
the State presented on this issue.
22 A-0173-12T3 While we agree DiMeglio described the events of the attack,
we find no support for the motion judge's finding she was able
to give a "detailed description" of her attacker. Because of
the importance of the identification testimony and the dearth of
corroborating evidence to support reliability of her
identification, the trial judge had an obligation to scrutinize
the facts. See Romero, supra, 191 N.J. at 75 ("We believe that
particular care need be taken in respect of this powerful
evidence--the eyewitness."). Instead, the judge's critical
findings are generally unsupported. We find unfounded the
judge's determination that defendant "was wearing similar
clothes and was similar in appearance [to] [DiMeglio's] original
description . . . ." The only description DiMeglio gave of the
features of her attacker that matched defendant was his race and
an approximate, yet inaccurate, height range. DiMeglio's
suggestion she had ample time to view her assailant is belied by
the fact that the only distinguishing feature she accurately
offered was the color of his skin.
Based on our review of the totality of the circumstances
presented in this record, we conclude DiMeglio's show-up
identification was unreliable. We find no basis to conclude she
had an independent recollection of his appearance. In light of
DiMeglio's inability to identify the features of her attacker
23 A-0173-12T3 except that he was "a tall black male," together with the
suggestive show-up procedures, we conclude when DiMeglio viewed
defendant, a tall black man, she concluded he assaulted her.
Accordingly, the out-of-court identification is inadmissible.
See Cherry, supra, 289 N.J. Super. at 517-18.
The denial of defendant's suppression motion is reversed.
Defendant's conviction is vacated. Retrial is subject to any
determination on the sufficiency of the State's remaining
evidence.
We briefly address the two remaining challenges raised on
appeal, in an effort to avoid possible repetition of error in
the event of a retrial. First, we reject defendant's claim of
prosecutorial misconduct and do not agree the State's summation
equated to an impermissible call to arms. See State v. Buscham,
360 N.J. Super. 346, 364-65 (App. Div. 2003) (finding
prosecutor's express plea to jury "to protect this child" was
improper). Nor can it be said to amount to a plea to the jury
to protect members of a specified group. See State v. Acker,
265 N.J. Super. 351, 356 (App. Div. 1993) (deeming inappropriate
"the prosecutor's argument that it was the function of the jury
to protect young victims of alleged sexual offenses as a group"
and the implication jurors would violate their oaths by failing
to convict the defendant), certif. denied, 134 N.J. 485 (1993).
24 A-0173-12T3 There was no trial objection. When considering the "fair
import" of the summation in its entirety, State v. Jackson, 211
N.J. 394, 409, the cited statement was not "so egregious that it
deprived . . . defendant of a fair trial," State v. Frost, 158
N.J. 76, 83 (1999).
Finally, defendant argues Officer Martina's testimony that
suspects "normally get rid of [the proceeds of a crime] so they
can't be tied to the crime" was inadmissible lay opinion.
Again, no objection followed this testimony. Despite the lack
of objection, we conclude it was error to admit that statement
and the error was "clearly capable of producing an unjust
result." R. 2:10-2.
"Lay opinion testimony . . . can only be admitted if it
falls within the narrow bounds of testimony that is based on the
perception of the witness and that will assist the jury in
performing its function." State v. McLean, 205 N.J. 438, 456
(2011). "[A] lay witness must have actual knowledge, acquired
through his or her senses, of the matter to which he or she
testifies." State v. LaBrutto, 114 N.J. 187, 197 (1989).
Further, lay opinion "is limited to testimony that will assist
the trier of fact either by helping to explain the witness's
testimony or by shedding light on the determination of a
disputed factual issue." McLean, supra, 205 N.J. at 458.
25 A-0173-12T3 Although New Jersey courts have permitted police officers
to testify as lay witnesses, LaBrutto, supra, 114 N.J. at 198,
"[t]he Rule does not permit a witness to offer a lay opinion on
a matter 'not within [the witness's] direct ken . . . and as to
which the jury is as competent as he [or she] to form a
conclusion[.]'" McLean, supra, 205 N.J. at 459 (alterations in
original) (quoting Brindley v. Firemen's Ins. Co., 35 N.J.
Super. 1, 8 (App. Div. 1953)).
Here, Officer Martina was not relating what he observed or
perceived. See N.J.R.E. 701. Rather, he offered what amounted
to an expert opinion interpreting facts for the jury bearing
directly on defendant's guilt. The statement from a lay witness
impermissibly intruded on the jury's function and is not
admissible without an appropriate expert foundation. See
McLean, supra, 205 N.J. at 463.
Reversed and remanded.
26 A-0173-12T3