State v. Lazo

34 A.3d 1233, 209 N.J. 9, 2012 WL 280413, 2012 N.J. LEXIS 23
CourtSupreme Court of New Jersey
DecidedFebruary 1, 2012
StatusPublished
Cited by170 cases

This text of 34 A.3d 1233 (State v. Lazo) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lazo, 34 A.3d 1233, 209 N.J. 9, 2012 WL 280413, 2012 N.J. LEXIS 23 (N.J. 2012).

Opinions

Chief Justice RABNER

delivered the opinion of the Court.

In this cáse, we consider whether it was proper for a police officer to testify at trial about how and why he assembled a photo array. Although the officer had no personal knowledge of the crime committed, he told the jury that he believed defendant closely resembled a composite sketch of the assailant and therefore included a photo of defendant in the array. The officer showed the array to the robbery victim, whose eyewitness identification was the only evidence linking defendant to the offense.

The officer’s testimony should not have been admitted in light of the principles outlined in State v. Branch, 182 N.J. 338, 865 A.2d 673 (2005). As Branch explained, an officer’s reasons for placing [13]*13a particular photo in an array are irrelevant and prejudicial. Id. at 352, 865 A.2d 673. Here, the testimony improperly bolstered the victim’s account and invaded the role of the jury to weigh the victim’s credibility. For those and other reasons, including certain concerns about eyewitness identification testimony considered in State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011), we do not find that the error was harmless. We therefore reverse the judgment of the Appellate Division, which affirmed defendant’s conviction, and remand for a new trial.

I.

The jury heard the following evidence at trial. Early in the morning on August 5, 2005, Angel Chaleo left his home in Newark and headed toward the Bloomfield Avenue subway station to catch a train to work. He arrived at around 6:05 a.m. and noticed three men walking behind him as he entered the station. Seconds later, as he walked down the stairs, the men grabbed Chaleo by the neck from behind, pulled him backward, and demanded money. One of the three men walked in front of Chaleo and pointed a knife at his stomach. Chaleo later identified that individual as the defendant. The men took the victim’s wallet—with $200 and an identification card in it—and his cell phone. They then hit him on the head and kicked his stomach, causing him to lose consciousness and fall down.

After Chaleo regained consciousness, he returned home and called the police. Soon after, he met with New Jersey Transit Police Detective Miguel Valido and described one of his assailants as a Hispanic male with a light complexion, eighteen to twenty-five years old, about five feet nine inches tall, and 150 pounds. Chaleo added that the suspect was wearing a white t-shirt, blue jeans, and a baseball cap turned backward. That description was broadcast to patrol units. Chaleo could not describe the other men who held him from behind.

The police transported Chaleo to their headquarters, where he viewed about thirty photographs—on a computer—-of people who [14]*14fit the suspect’s description. Detective Valido testified that the photos came from the New York/New Jersey High Intensity Drug Trafficking Agency (HIDTA) network. At the time, Chaleo did not identify anyone as his assailant.

While Chaleo examined the photographs, Detective Valido learned that the police had detained a suspect in the area of the Broad Street station who matched Chaleo’s description. The detective took Chaleo to the nearby scene and asked if he could identify the individual. From a distance of thirty feet or more, Chaleo initially believed the person may have been one of his assailants. After getting a closer look at the suspect at the stationhouse, Chaleo declared that the individual was not involved in the robbery.

Shortly afterward, and still within about ninety minutes of the robbery, a police sketch artist worked with Chaleo and prepared a sketch of the assailant based on Chaleo’s description. Detective Valido was also present and helped translate for Chaleo, who spoke Spanish. Chaleo viewed samples of different facial features and selected the ones he believed were the closest matches to the attacker’s features.

According to the detective, Chaleo was “very certain” that the final version looked like the assailant. The police then disseminated the composite drawing to all patrol units. Detective Valido testified that he did not give a copy to Chaleo.

Days later, the detective came across an arrest photo of Danny Lazo taken after he had jumped a turnstile on August 8, 2005. The detective thought Lazo’s photo closely resembled the composite sketch. For that reason, Detective Valido included a photo of Lazo in an array of six photos he compiled. To comply with guidelines from the Attorney General, the detective used a two-year-old photo of Lazo from the HIDTA network instead of the more recent arrest photo. Chaleo never saw the arrest photo.

Detective Valido showed Chaleo the photo array on August 10, 2005, and Chaleo identified the picture of Lazo as his assailant. [15]*15According to Chaleo, when he looked at the array and made the identification, he also had a copy of the composite sketch in hand.

Detective Valido obtained an arrest warrant for defendant Lazo and arrested him the following day. A grand jury in Essex County later indicted defendant on two counts: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; and first-degree robbery, N.J.S.A. 2C:15-1.

Defendant’s trial began on November 28, 2006. Defense counsel did not request a Wade hearing before trial to challenge the identification procedure. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

The State called Detective Valido and the victim, who recounted the above facts. During the detective’s testimony, the State introduced in evidence the composite sketch, defendant’s arrest photo, and the photo array. The detective also explained how he prepared the array. He noted that once he received the arrest photo, he noticed how closely it resembled the sketch, and he included Lazo’s picture in the photo array because of his similarities to the victim’s description. Defendant vigorously objected to both the introduction of the arrest photo and the testimony.

In addition to recounting the events of the robbery and his identification of defendant from the photo array, the victim identified defendant at trial. The victim’s identification was the only evidence linking defendant to the crime. No physical evidence or other corroboration of the identification was presented.

Defense counsel offered an alibi defense. Defendant’s mother, two brothers, and a friend, Angel Febus, testified that defendant was asleep at home at the time of the robbery. They testified that all four slept in the apartment that night and remembered the evening of August 4, 2005 and early the next morning—when the robbery occurred—for a number of reasons. In particular, the witnesses explained that defendant did not have to attend summer school that morning, that defendant’s mother permitted Febus to sleep over, a rare occurrence, and that she checked herself in a [16]*16mirror in the boys’ room and kissed them between 5:30 and 6:30 a.m.

The prosecution challenged and undermined defendant’s alibi on cross-examination. Witnesses testified inconsistently as to whether anyone was ever permitted to sleep over at defendant’s home and whether Febus had slept over before August 5, 2005.

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Cite This Page — Counsel Stack

Bluebook (online)
34 A.3d 1233, 209 N.J. 9, 2012 WL 280413, 2012 N.J. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lazo-nj-2012.