On appeal from the Superior Court, Law Division, Union County.
Michels, Pressler and Bilder. The opinion of the court was delivered by Bilder, J.s.c. (temporarily assigned). Michels, J.A.D. (dissenting).
This is an appeal from a conviction of armed robbery (N.J.S.A. 2A:141-1 and N.J.S.A. 2A:151-5) in which defendant contends as error: (1) the admission of tainted identification evidence; (2) the admission of a .45-caliber automatic, admittedly unrelated to the crime, as an example of the weapon described by witnesses, and (3) the denial of a continuance to produce an additional witness.
At about 8:45 on the morning of July 21, 1975 a McDonald's restaurant in Elizabeth was held up by two black males armed with revolvers. One man wore a ski mask and the other (allegedly Ford) had a woman's stocking covering his face as far down as his chin.
Three employees who were present at the time witnessed the events and later identified defendant as one of the participants. All three had unobstructed views of defendant in a well-lit environment from distances of a few feet for periods of less than a minute to three to four minutes.
Within minutes after the commission of the robbery police arrived at the scene. Before receiving any descriptions from the victims, the investigating officers displayed a flier containing
mug shots of defendant and asked, "Is this him?" Defendant contends this identification procedure was impermissibly suggestive; that the ensuing identifications were tainted. We agree.
Due process requires that the identification procedure be fair and reasonable. Neil v. Biggers , 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). If the identification results from a procedure which is so unnecessarily suggestive as to give rise to a substantial likelihood of mistake, it must be excluded. See Stovall v. Denno , 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).
In the instant case the procedure was highly suggestive, and gratuitously so. The police who arrived within five minutes of the robbery report immediately showed mug shots of two men to the witnesses. The very circumstance of being shown mug shots of two men by police responding to a robbery by two men suggests official suspicion of guilt. Implicit in the immediate flier viewing is the notion that this guilt is evidenced by other facts known to the police. Here are witnesses, still fresh in the ambiance of an armed robbery -- from whom descriptions of masked men will be sought -- confronted with photographs of men obviously suspected by the police without even a question as to descriptions. The notions thus planted in the witnesses' minds make their subsequent identifications unreliable -- and unfairly so. Had the witnesses been first asked for descriptions, they would have had the opportunity to review their recollection free of outside suggestion and a benchmark would have been established for testing the reliability of any subsequent identification. Certainly we cannot say there was not a substantial likelihood of misidentification in this case.
Nor can we say that the subsequent out-of-court and in-court identifications were not resultantly tainted. U.S. v. Wade , 388 U.S. 218, 240, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Here the precipitous conduct at the crime scene was compounded by a photo showup at the police station where the same two sets of mug shots displayed on the
flier were shown as part of the array. If there was a danger of later identification based on the flier photographs rather than the robbery, that ...