Lewis, Matthews and Mintz.
Defendants were each convicted, after a joint trial, of armed robbery. Both appealed, and although the appeals were not consolidated, we treat the questions raised in both appeals in this opinion, which shall be filed as the opinion of the court in each case.
The facts adduced at trial disclosed that Wallace and Jordan entered the Brass Rail Bar in Atlantic City approximately ten minutes before the robbery occurred. They wandered around for a few minutes and then each ordered a beer. The bartender, Patten, who testified at the trial, poured and served the beers and engaged the two "in quite a conversation." Thereafter, Wallace approached Patten who was in front of the cash register, showed him the butt end of what he believed to be a gun, and said, "I want the money and I am not kidding." Patten placed all the money in the cash register on the bar and Wallace and Jordan took all they could and ran out the door. Patten then grabbed a telephone which was the property of a taxicab
company and asked the dispatcher to send the police. Policemen arrived in less than five minutes and set out in search of the two robbers as soon as Patten had given them "fast" descriptions. Within five to ten minutes the police returned to the bar with Wallace who was identified by Patten who said, "that is the man."
At the request of the police, Patten went to Atlantic City police headquarters after he finished work at 8 A.M., where he again identified Wallace as one of the robbers. At this identification, Wallace was not in the lineup but was brought into a room where a police clerk was taking Patten's statement; as defendant was brought near the clerk's desk, Patten volunteered the identification. Patten also identified certain items of clothing as belonging to defendant Wallace. Patten, in testifying about his identification of Wallace, stated it was not based upon the fact that the police officers brought Wallace to the bar, but rather because he "had much time to observe Mr. Wallace and know what he looked like." Patten described Wallace as wearing a very thin-pointed, well-shaped beard, a cast on his right arm, a three-quarter length black leather or simulated leather coat, dress slacks, a hat, a sweater, and shined shoes.
Sergeant Callender of the Atlantic City police testified that when he received the radio dispatch describing the robbers, he began searching the area and when he entered the Place Bar, which is located a block and a half from the Brass Rail, he saw Wallace who was wearing blue trousers, brown shoes, a tan sweater, a cast on his right arm, and a mustache growing into a goatee. Callender testified that he had known Wallace for at least seven years and that he had seen him earlier that day dressed as described by Patten. Callender stated that as he entered the Place Bar, Wallace "immediately started toward a door" until ordered to halt. After frisking him, Callender noticed Jordan who was also in the Place Bar and determined that he fit the description of the other man who had committed the robbery at the Brass Rail. Jordan was ordered to remain where
he stood. Callender then ordered a barmaid to call for assistance. At this point, Jordan smashed his way through a locked door and escaped.
On the evening following the robbery, Patten was again summoned to police headquarters where he identified Jordan who stood in a lineup comprised of four or five other men. According to Patten, he could not remember how the other men looked, but remembered that "Mr. Jordan stood out very well."
Both Wallace and Jordan testified on their own behalf at trial and each denied any participation in the crime.
On this appeal both defendants argue that the trial court erred in denying their motions to dismiss the indictments on their challenges to the array of the grand jury and, further, in denying their requests to hold evidentiary hearings on their challenges to the array; they also claim that each should have been acquitted at the end of the State's case of count two of the indictment against him because the State failed to establish that the robbery was perpetrated with a gun. Finally, both defendants argue that the identification of each of them was unconstitutionally, impermissibly suggestive under United States v. Wade , 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The first argument dealing with the challenge to the array may be dispensed with summarily. Both defendants, in their briefs to this court, have informed us that an evidentiary hearing on a challenge to the same array was held on April 27, 28 and 30, 1970 before Judge Horn, the assignment judge of Atlantic County, in the case of State v. Dickerson, et al. , Indictment No. 614-68-M, et al. Both defendants agree that they should be bound by the facts adduced at that evidentiary hearing, and the decision of Judge Horn in the Dickerson case. ...