On certification to the Superior Court, Appellate Division, whose opinion is reported at 183 N.J. Super. 224 (1982).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Handler, J.
[93 NJ Page 554] The issue presented by this appeal is whether the Superior Court had jurisdiction and adequate grounds to compel the defendant to submit to a lineup prior to his arrest or the filing of any charges against him. We now hold that the Superior Court has jurisdiction to issue process compelling a suspect to submit to a lineup prior to the filing of criminal charges upon a showing of less than probable cause, provided certain evidential standards and protective procedures are satisfied.
In the early morning hours of February 3, 1978 an armed robbery took place at the home of James Bailey, in Cliffwood Beach, New Jersey. Bailey and his girlfriend, Stacey Dillon, had just arrived at the home when two male intruders appeared, one white and the other black. The white male demanded that Bailey produce ten pounds of marijuana that he believed was in the house. Bailey explained that he did not have the marijuana, but that Michael Huff, from whom he had purchased nine ounces of marijuana, had the contraband.
After Bailey turned over the nine ounces of marijuana that he did possess, the intruders began an extensive search of the home. They cut the wires from several stereo components, ripped a television from its casings and tore a telephone from the wall. At this time one of the intruders also took Bailey's wallet. The black man then took Dillon into a front room and tied her hands. Later she was taken into the bedroom and tied to Bailey. As the intruders were leaving, one of the men told Bailey that they would return Bailey's television and stereo when they received money owed to them by Michael Huff.
Dillon and Bailey freed themselves and telephoned the latter's roommate, Louis Campanelli. They did not immediately call the police because the incident involved drugs. After learning of the robbery, Campanelli, Huff and two other friends arrived at the house. The police were then called. When the police arrived, the two victims gave complete descriptions of the intruders.
Subsequent police investigation of the episode revealed that the defendant, James H. Hall, Jr., might have been one of the intruders. A week after the robbery Detective Joseph Booket of the Aberdeen Township Police Department called the victims and requested that they come to police headquarters to assist in the preparation of a composite sketch of the two perpetrators. Dillon, who had been able to observe the white intruder from a distance of five feet during the robbery, was unable to identify
defendant from a series of photographs of potential suspects. Bailey made an equivocal identification of defendant's photo, noting that he could not be absolutely sure because the man's hair in the photo was a "lot shorter" than it was on the night in question. Based upon this tentative identification, the Monmouth County prosecutor moved for an order compelling defendant to appear in a lineup. Over defendant's objections and following a hearing, the trial court granted the motion and scheduled a lineup.*fn1
After viewing the court-ordered lineup, Dillon twice identified defendant as one of the men who robbed her. Bailey also viewed the lineup and positively identified defendant. Immediately after the lineup the police swore out a criminal complaint against Hall. Defendant was charged in a five-count indictment with entering with intent to steal, robbery of goods valued in excess of $500, armed robbery, assault with an offensive weapon, and possession of a dangerous weapon.
Defendant was found guilty by a jury on all counts with the exception of assault with a deadly weapon. Thereafter, defendant moved unsuccessfully for a new trial, arguing that the court-ordered lineup was improper and that the jury verdict was tainted. The Appellate Division affirmed the convictions. 183 N.J. Super. 224 (1982). The Court granted the petition for certification limited to the issue of the validity of the order compelling the lineup. 91 N.J. 195 (1982).
Defendant challenges the jurisdiction of the trial court to issue an order compelling an unarrested ...