NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3818-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY L. ROSS, a/k/a ROSS TIMOTHY L, LEVI JAMES, TIMOTHY LEVI, JAMES ROSS, SHOTGUN, and TODD WRIGHT,
Defendant-Appellant. _____________________________
Submitted May 11, 2020 – Decided July 13, 2020
Before Judges Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 18-01- 0032.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa A. Aiello, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher L.C. Kuberiet, Acting Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Timothy L. Ross appeals from his conviction for second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1), and second-degree possession of a
handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). He pleaded guilty to
both charges, reserving the right to appeal the trial court's orders denying his
motion to suppress the out-of-court identification made by the victim he shot
and admitting, under N.J.R.E. 404(b), evidence of threats defendant made to the
victim shortly before the shooting. He argues on appeal:
POINT I
THE TRIAL COURT ERRED IN RULING THAT THE IDENTIFICATION EVIDENCE WAS ADMISSIBLE.
A. The Henderson1 Framework For Testing The Admissibility Of Out-Of-Court Identifications.
B. The Recordation Requirements Under Delgado2 And Rule 3:11.
C. [The Detective's] Failure To Record The Exchange He Claimed To Have Had With [The Victim] Regarding Confirmatory
1 State v. Henderson, 208 N.J. 208 (2011). 2 State v. Delgado, 188 N.J. 48 (2006). A-3818-17T4 2 Feedback Was A Clear Violation Of Delgado And Rule 3:11.
D. [Defendant's] Inability to Establish Suggestiveness, Which Resulted From [The Detective's] Flagrant Violation Of The Recordation Requirements, Did Not Support The Trial [c]ourt's Ruling That The Photo Identification Was Admissible.
E. Because The Police Presented A Record Bereft Of Details As to Whether [The Detective] Asked [The Victim] About Confirmatory Feedback, And If So, What She Said, And Because [The Detective's] Violation Of The Recordation Requirement Was Part Of A Pattern Of Flagrant Police Misconduct, The Identification Evidence Should Be Stricken. In The Alternative, The Matter Must Be Remanded For A Hearing At Which [Defendant] Is Free To Explore The Full Range Of Estimator And System Variables That Bear On Admissibility.
POINT II
THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO ADMIT TESTIMONY FROM [THE VICTIM] AND HER BROTHER THAT [THE VICTIM] FELT THREATENED AND AFRAID DURING PRIOR ENCOUNTERS WITH [DEFENDANT].
We disagree and affirm.
A-3818-17T4 3 Further to defendant's request for a pretrial hearing to challenge the
victim's identification of defendant, the trial court granted a Wade3 hearing, and
heard testimony from the New Brunswick Police Department major crimes unit
detective who investigated the shooting that took place on Remsen Avenue in
New Brunswick. As we "must uphold the factual findings underlying the trial
court's decision so long as those findings are supported by sufficient credible
evidence in the record," State v. Rockford, 213 N.J. 424, 440 (2013) (quoting
State v. Robinson, 200 N.J. 1, 15 (2009)), we glean the pertinent facts from the
trial court's written decision. "Those factual findings are entitled to deference
because the motion judge, unlike an appellate court, has the 'opportunity to hear
and see the witnesses and to have the "feel" of the case, which a reviewing court
cannot enjoy.'" State v. Gonzales, 227 N.J. 77, 101 (2016) (quoting State v.
Johnson, 42 N.J. 146, 161 (1964)). A "trial court's findings at the hearing on
the [reliability and] admissibility of identification evidence are 'entitled to very
considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008) (quoting State
v. Farrow, 61 N.J. 434, 451 (1972)). "To the extent that the trial court's
determination rests upon a legal conclusion, we conduct a de novo, plenary
3 United States v. Wade, 388 U.S. 218 (1967). A-3818-17T4 4 review." Rockford, 213 N.J. at 440; see also State v. Gandhi, 201 N.J. 161, 176
(2010).
Sixteen days after the victim was shot, the detective went to the hospital
to which the victim was admitted and ascertained from her that she was able to
participate in a photographic array. He had attempted to speak to the victim
"various times" before that date but was prevented because of the victim's
injuries and condition. From the detective's testimony, the trial court described
"the victim who had 'around [eighteen] holes in her,' [as] close to death and
extremely fragile for many days. The [d]efense acknowledged that the victim
underwent several medical procedures which made her unavailable to police ."
The detective returned to the hospital later that day with another detective
who acted as the "blind administrat[or]" for the array.4 See Henderson, 208 N.J.
at 248 (holding an "identification may be unreliable if the lineup procedure is
not administered in double-blind or blind fashion. Double-blind administrators
do not know who the actual suspect is. Blind administrators are aware of that
4 The trial court did not specify the exact role the administrator played. During the identification procedure, the administrator told the victim he was going to let the detective "go over . . . any other issues with [her] in regards to the case [be]cause [he did not] know anything about it[.]" Whether the administrator was a "blind administrator" or "double-blind administrator" does not impact our decision. Defendant does not challenge the administrator's status. A-3818-17T4 5 information but shield themselves from knowing where the suspect is located in
the lineup or photo array"). Although the photo array procedure, including the
victim's selection of defendant's photograph, was recorded, defendant argues the
State's failure to record the completion of the photo array eyewitness
identification procedure worksheet (worksheet),5 specifically question sixteen,
violated our Supreme Court's mandate regarding the need to make a record of
identification procedures, citing Rule 3:11, Delgado and Henderson.
The worksheet contains twenty-six questions. The worksheet instructions
promulgated by the Attorney General, addressing question sixteen, direct the
administrator to "ask the witness whether he or she has spoken to anyone (law
enforcement or civilian) about the identification." The detective disregarded
that instruction and filled out parts of the worksheet, including question sixteen,
because he wanted to save the administrator time as the photo array procedure
5 "In October 2012, after the promulgation of Rule 3:11, the New Jersey Attorney General issued a revised model worksheet directing police officers to 'document as detailed an account as possible of the exact words/gestures used by the witness' during the photographic identification process." State v. Anthony, 237 N.J. 213, 243 (2019) (Albin, J., dissenting) (quoting Office of the Attorney General, Photo Array Eyewitness Identification Procedure Worksheet 1-3 (Oct. 1, 2012), https://www.state.nj.us/lps/dcj/agguide/Eye-ID- Photoarray.pdf.). A-3818-17T4 6 took more time than it would have if it was conducted at the police station
instead of the hospital.
Further, the detective completed question sixteen, checking off the box
signifying an affirmative answer to the question, based on a conversation he had
with the victim during his initial meeting with her on the day of the photo array
procedure, before returning with the administrator. He did not bring a worksheet
to the initial meeting because he wanted to first learn if the victim was able to
participate in the identification procedure. After establishing her ability, the
detective testified he "most probably" asked the victim if she spoke to anyone
about the identity of the person who shot her. He said the victim denied having
any such conversation because had she said "yes," he would not have conducted
the photo array.
Defendant avers the victim's family members and friends influenced her
identification of defendant during their visits to the hospitalized victim prior to
the photo array procedure. He also contends the detective's answer to question
sixteen is ambiguous because he did not state the victim's response verbatim and
did not record his conversation with her, thus depriving defendant of the ability
to establish the suggestiveness of the procedure. He seeks suppression of the
identification because of the detective's failure to record his colloquy with the
A-3818-17T4 7 victim, and because the detective—not the administrator—completed a portion
of the worksheet and had the administrator sign the worksheet even though the
detective completed some questions.
Addressing first whether law enforcement officers are required to
electronically record the completion of the worksheet, we start with the Court's
mandate in Delgado "that, as a condition to the admissibility of an out-of-court
identification, law enforcement officers [must] make 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." 188 N.J. at 63. The Court directed, "[w]hen feasible, a
verbatim account of any exchange between the law enforcement officer and
witness should be reduced to writing. When not feasible, a detailed summary of
the identification should be prepared." Ibid.
In Henderson, the Court recognized that, among the variables to be
considered in determining "whether there is evidence of suggestiveness to
trigger a hearing," is if "the witness receive[d] any information or feedback,
about the suspect or the crime, before, during, or after the identification
procedure[,]" and, as a prelude to question sixteen, if "law enforcement
A-3818-17T4 8 elicit[ed] from the eyewitness whether he or she had spoken with anyone about
the identification and, if so, what was discussed[.]" 208 N.J. at 289-90.
Spawned by Henderson and Delgado, Rule 3:11(a) precludes admission
of an identification "unless a record of the identification procedure is made,"
Anthony, 237 N.J. at 228-29. Officers must
contemporaneously record the identification procedure in writing, or, if feasible, electronically. If a contemporaneous record cannot be made, the officer shall prepare a record of the identification procedure as soon as practicable and without undue delay. Whenever a written record is prepared, it shall include, if feasible, a verbatim account of any exchange between the law enforcement officer involved in the identification procedure and the witness. When a written verbatim account cannot be made, a detailed summary of the identification should be prepared. [6]
[Id. at 229 (quoting R. 3:11(b)).]
The Rule specifies that
the record . . . should detail (2) the dialogue between the witness and the officer who administered the procedure . . . and (8) the identity of any individuals with whom the witness has spoken about the identification, at any time before, during, or after the official identification procedure, and a detailed
6 Although Rule 3:11(b) and (c) were amended effective June 8, 2020, we apply the version of the Rule that was in effect when the trial court decided defendant's motion to suppress the out-of-court identification. The amendments do not change our conclusion. A-3818-17T4 9 summary of what was said. This includes the identification of both law enforcement officials and private actors who are not associated with law enforcement.
[Ibid. (quoting R. 3:11(c)(2) and (8)).]
In Anthony, the Court seemingly distinguished between the recording of
an identification procedure and the written forms "that documented important
information about the process." Id. at 236. The Court concluded the officers
failed to comply with Rule 3:11 or Delgado "in full" because "[t]hey did not
prepare an electronic recording of [the witness's] out-of-court identification of
[the] defendant. They also did not prepare a contemporaneous, verbatim written
account of the exchange between [the witness] and the officer who administered
the photo array." Id. at 235 (emphasis added). The Court recognized that,
although the written forms memorialized certain aspects of the procedure,
"[r]eliance on the forms alone . . . did not create an adequate record in other
respects. There [was] no electronic recording or contemporaneous, verbatim
written account of the exchange during the identification procedure." Id. at 236.
The Court was concerned that
without a recording of the full exchange, or an opportunity to explore it at a hearing, it was not possible to know ahead of trial whether more subtle positive feedback was given, even if well-meaning. Similar concerns potentially apply to the conversation
A-3818-17T4 10 between [the investigating detective—not the administrator—and the witness], for which the record does not contain a detailed summary consistent with Rule 3:11(c)(8).
[Id. at 237.]
Thus, it appears the Court differentiated between a recorded identification
procedure and the associated written forms, both of which serve to accomplish
the goal of preserving the exchange between police and witness so as to assess
the reliability of the identification. See Delgado, 188 N.J. at 63. Indeed, the
Court recognized in its March 13, 2019 decision, "[p]rior case law calls for
electronic recording of identification procedures, if feasible." Anthony, 237 N.J.
at 230; see also Delgado, 188 N.J. at 63 (stating that "electronic recordation is
advisable"). "The [then] current court rule follow[ed] that approach. It
favor[ed] electronic recording and verbatim written recordings, both of which
are superior to detailed written summaries." Anthony, 237 N.J. at 230.
The Court, however, noted "the proliferation of recording devices in
recent years," and deemed electronic recording as the preferred method for
identification procedures. Ibid. The Court delineated its preferences:
To more clearly state the order of preference for preserving an identification procedure, Rule 3:11(b) should be revised along the following lines: Officers are to record all identification procedures electronically in video or audio format. Preferably, an audio-visual
A-3818-17T4 11 record should be created. If it is not feasible to make an electronic recording, officers are to contemporaneously record the identification procedure in writing and include a verbatim account of all exchanges between an officer and a witness. If a contemporaneous, verbatim written account cannot be made, officers are to prepare a detailed summary of the identification as soon as practicable.
[Id. at 231.]
Neither the detective nor the trial court had the benefit of the Court's most
recent guidance when this motion was decided in 2017. Nonetheless, we find
thin the detective's explanation, adopted by the trial court in excusing the
recording, that he was not expecting to conduct an identification procedure when
he first went to the hospital to meet with the victim on the day the identification
took place, and did not bring the worksheet; he, thus, could not
contemporaneously record the victim's response that she did not discuss the
identity of the shooter with anyone. Nothing prevented the administrator from
complying with the Attorney General's instructions and completing the
worksheet with the victim. And, despite the detective's disregard of thos e
instructions, nothing prevented him from asking the victim question sixteen after
the identification was made. Because the identification proceeding was captured
on video, there was no reason why the completion of the worksheet could not be
so recorded. Although there was perhaps no mandate to record the completion
A-3818-17T4 12 of the worksheet, common sense dictates that was the preferable method to
capture the victim's responses, even before the Court's clarification in Anthony,
and the subsequent Rule change. We further note our disapproval of the
administrator's signature on the worksheet even though the detective filled out
a portion of it.
Nonetheless, we agree with the trial court that suppression of the
identification was not warranted under the circumstances of this case. The entire
identification procedure was recorded. As the trial court found, there is no
evidence of any feedback or suggestion on that recording. The only variabl e
defendant cites is the taint evidenced by the visits by the victim's family in the
hospital, the "word on the street" that defendant was the shooter, and the victim's
brother's theory that defendant was the shooter. The trial court found that the
victim was debilitated from her serious injuries and "may not have been in a
condition to communicate with her friends and family during that period." More
so, as the trial court found, there was no evidence that the victim spoke to anyone
before the identification about the shooter's identity. We agree with the trial
court that defendant's proffer that someone spoke to the victim in advance of the
identification is notional. Defendant did not identify any private actor's
suggestive words or conduct. Cf. State v. Chen, 208 N.J. 307, 322 (2011).
A-3818-17T4 13 We also discern the victim—who said during the recorded identification
proceeding that she could not use her injured right hand to write—initialed the
photograph display result form attached to defendant's appendix. Two of the
printed representations—read aloud to the victim by the administrator during the
recorded proceeding—with which the victim agreed were: "I was not told by
anyone whether others had selected any particular photograph or failed to select
any one. I was not told by anyone the status of identity of any of the individuals
in the photographs."
Moreover, the trial court conducted a Wade hearing. Although defendant
now contends if the identification is not suppressed he is entitled to a hearing to
explore the variables described in Henderson, 208 N.J. at 218, he had a full
opportunity to do so at the initial hearing. The trial court granted his request for
a hearing. As the Henderson Court ruled, "all relevant system and estimator
variables [are allowed] to be explored and weighed at [such] pretrial hearings[.]"
208 N.J. at 288 (emphasis omitted). In order to meet his ultimate burden of
proving "a very substantial likelihood of irreparable misidentification,"
defendant could have "cross-examine[d] eyewitnesses and police officials and
present[ed] witnesses and other relevant evidence linked to system and estimator
variables." Id. at 289. That included calling the victim who could have testified
A-3818-17T4 14 about her answer to question sixteen. Defendant is not entitled to a second bite
of the apple.
The record on appeal pertaining to defendant's second argument that "the
trial court erred in ruling that [the victim] and her brother could testify that [the
victim] felt threatened and afraid of [defendant]" also reveals a fact not adduced
to the trial court until November 2017, around a month before trial was set to
begin: "specific information regarding the [v]ictim's earlier interactions with
[d]efendant[.]"7 Over three months passed between defendant's request for a
Wade hearing and the November 2017 hearing before the trial court was
informed of specific prior encounters between defendant and the victim. At the
November 27, 2017 hearing, the assistant prosecutor admitted an alleged threat
by defendant that the State sought to introduce pursuant to N.J.R.E. 404(b),
"wasn't flushed out . . . by the detectives and [he had not] prepped [the victim ]
for testimony [and was] not able to flush out in great detail . . . how deeply the
threat went." From the victim's testimony at the evidentiary hearing on the
State's N.J.R.E. 404(b) application in early January 2018, the trial court found
the victim "had known [d]efendant for a month prior to" the shooting, speaking
7 Defense counsel generally alluded that the victim knew defendant during the August 2017 request for a Wade hearing, stating defendant was "the only person [the victim] knew in the array, or ever had contact with in the array[.]" A-3818-17T4 15 to him "on the phone twice, and [meeting] with him in person three or four
times" in order to consummate a transaction for drugs that the victim planned to
sell. The court continued its findings:
On one of these occasions, [d]efendant asked her to sell crack cocaine for him in his territory, which was on Seaman and Lee Avenue. The [v]ictim believed that [d]efendant made this offer because of the amount of money she was bringing to him and her good reputation as a drug dealer. The [v]ictim declined this offer. Defendant threatened her stating that if she was not going to sell for him, she could not sell in his territory. Approximately two weeks after this encounter, the [v]ictim saw [d]efendant as she was leaving His and Hers Clothing Boutique. According to the [v]ictim[, d]efendant seemed angry and upset, when he asked her, "[d]o you remember me?" The [v]ictim felt as though this question was a threat going back to the previous encounter in which he warned her not to sell in his territory.
While we do not rely on evidence of those prior encounters in determining
whether defendant's motion to suppress the identification was properly granted
because the State did not present that evidence at the identification suppression
hearing, see State v. Wilson, 178 N.J. 7, 17 (2003) (declining "to infer proofs
that were not presented expressly before the trial court"), we note such evidence
exists and would surely be introduced if we deemed a remand was appropriate,
greatly bolstering the reliability of the victim's identification.
A-3818-17T4 16 Under Rule 3:11(d), the trial court had the discretion to "declare the
identification inadmissible, redact portions of the identification testimony,
and/or fashion an appropriate jury charge to be used in evaluating the reliability
of the identification" if it found the record of the identification prepared by the
State "lacking in important details as to what occurred at the out-of-court
identification procedure . . . if it was feasible to obtain and preserve those
details[.]" Although we look askance at the detective's failure to adhere to the
letter of the Attorney General's instruction and the spirit, if not the letter, of the
Court's recording mandate, under the circumstances of this case, we see no abuse
of discretion in allowing in denying defendant's motion to suppress. See
Henderson, 208 N.J. at 289 (holding the trial court enjoys the discretion to
determine whether an identification is reliable).
Defendant also contends the trial court abused its discretion in allowing
the State to introduce defendant's prior threats to the victim as proof of
defendant's motive and intent. Defendant argues the evidence does not reveal
that defendant directly threatened the victim; the trial court erroneously admitted
the evidence based on the victim's subjective belief that defendant's words were
a threat, speculating that his remarks related to protecting his drug territory from
A-3818-17T4 17 the victim's continued drug sales in that area; and the motive was robbery as
originally charged in the indictment. 8
"Traditional rules of appellate review require substantial deference to a
trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998).
The trial court's rulings will "be upheld 'absent a showing of an abuse of
discretion, i.e., there has been a clear error of judgment.'" State v. Perry, 225
N.J. 222, 233 (2016) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "An
appellate court applying this standard should not substitute its own judgment for
that of the trial court, unless 'the trial court's ruling was so wide of the mark that
a manifest denial of justice resulted. '" Ibid. (quoting State v. Marrero, 148 N.J.
469, 484 (1997)); see also State v. Fortin, 189 N.J. 579, 597 (2007).
The trial court considered the evidence under the four-prong test adopted
by our Supreme Court in State v.Cofield, "to avoid the over-use of extrinsic
evidence of other crimes or wrongs[.]" 127 N.J. 328, 338 (1992). The test
8 The indictment handed down against defendant charged him with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second- degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five). Defendant pleaded to an accusation. The indictment, and another charging second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b), was dismissed pursuant to the plea agreement. A-3818-17T4 18 requires "the evidence . . . be: (1) admissible as relevant to a material issue, (2)
similar in kind and reasonably close in time to the act alleged, (3) clear and
convincing, and (4) of sufficient probative value not to be outweighed by its
apparent prejudice." State v. Krivacska, 341 N.J. Super. 1, 39-40 (App. Div.
2001).
The trial court considered the victim's conversation with defendant—after
she declined defendant's offer for her to work for him selling drugs—about her
drug sales in his territory, and the subsequent encounter when he asked if she
remembered him; the court determined them relevant to defendant's motive and
intent for shooting the victim after defendant's warning not to sell drugs in his
territory. The trial court, in finding the second prong was met, found the prior
encounters between the victim and defendant took place "just weeks before the
shooting[.]" The trial court credited the victim's testimony at the N.J.R.E. 104
hearing on the state's motion, and found the details presented by the victim, and
her demeanor and candor on the stand presented clear and convincing evidence
of the threats. The trial court concluded "[t]he [v]ictim's testimony at the
[N.J.R.E.] 104 hearing made it clear that not only did . . . [d]efendant and the
[v]ictim know each other prior to the shooting, but . . . they had previous
encounters and dealings, giving him a motive to harm her because she was
A-3818-17T4 19 encroaching on [d]efendant's territory." The court found the evidence probative
as it was the only evidence to prove defendant's motive and intent. The court
recognized the obvious prejudice inherent in evidence that defendant was
alleged to be a threatening drug dealer, and prohibited the State from introducing
the victim's testimony "as to the extent of [d]efendant's drug[-]dealing activities
and/or his interactions with other[s] in regard to drug distribution." The court
also stated it would instruct the jury as to the limited use of the evidence.
We affirm the trial court's admission of the evidence substantially for the
reasons it set forth in its written opinion. We add only that we find meritless
defendant's argument that the court based its decision on the victim's belief that
he threatened her. Defendant's words and conduct, in context, were reasonably
and objectively found by the court to be threats. The admission of the evidence
based on the trial court's careful consideration of the Cofield factors, and subject
to the proposed limiting instruction, was not an abuse of discretion.
Affirmed.
A-3818-17T4 20