On certification to the Superior Court, Appellate Division.
For modification and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Reversal -- None. The opinion of the Court was delivered by Garibaldi, J.
The issue in this appeal is whether the out-of-court photographic identification procedures used by the police were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968). The State's case against the defendant-appellant, James Madison, as one of the three men who robbed a movie theatre is based primarily on the pretrial and in-court identifications of the defendant by one of the victims, Brian Mason. Approximately two months after the robbery, Mr. Mason was summoned to the police station where he was shown twenty-four black-and-white photographs, containing at least one photograph of the defendant. There is a dispute between the police officer who conducted the photographic array, Detective Rago, and Mr. Mason over whether Mr. Mason was able to identify the defendant from this group of black-and-white photographs. Detective Rago testified that Mr. Mason did not identify the defendant in any black-and-white photograph; Mr. Mason insists that he did.
After being shown the twenty-four black-and-white photographs, Mr. Mason was shown approximately thirty-eight color photographs taken at defendant's birthday party. Defendant, wearing a pink shirt, appeared approximately thirteen or fourteen times in these pictures. Other men also appeared more than once in these pictures. From one of these color photographs, Mr. Mason identified the defendant as one of the men
who robbed the theatre. A Wade*fn1 hearing was held to determine the admissibility of the out-of-court identification of the defendant by Mr. Mason. The identification was ruled admissible.
A jury convicted defendant of armed robbery (N.J.S.A. 2C:15-1), terroristic threats (N.J.S.A. 2C:12-3), possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)), and possession of a handgun without a permit (N.J.S.A. 2C:39-5(b)).
The defendant appealed to the Appellate Division on the ground that the out-of-court photographic identification procedures were "so impermissibly suggestive" that he was denied due process of law. Simmons v. United States, supra, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247; State v. Thompson, 59 N.J. 396, 414 (1971). Defendant claimed that both Mr. Mason's out-of-court and in-court identifications of him should have been excluded from evidence. The trial court found that the out-of-court identification procedures were not impermissibly suggestive. Hence, it did not reach the question of whether those procedures were so unduly prejudicial as to have fatally tainted Mr. Mason's pretrial and in-court identifications of the defendant. The Appellate Division found that the manner in which the out-of-court photographic array was conducted was "unquestionably suggestive," but concluded nevertheless that the procedure did not give rise to a likelihood of misidentification. The Appellate Division thus concluded that the trial court properly admitted both Mr. Mason's out-of-court and in-court identifications of the defendant.
We granted defendant's petition for certification, 107 N.J. 662 (1987).
On the evening of February 5, 1984, three black men committed an armed robbery at a movie theatre in Cherry Hill, New
Jersey. The evidence at trial established that at approximately 10:30 p.m. on that evening, two employees of the theatre, Mr. DeMatea, the doorman, and Ms. Smith, who sold candy in the theatre, were talking in the lobby. Mr. DeMatea noticed two black men enter the theatre and was about to inquire what they wanted when he noticed a third black male coming from the area of the public telephones. Believing that the two men were only waiting for their friend to use the telephone, Mr. DeMatea turned back to continue his conversation with Ms. Smith. Immediately thereafter, the shortest and most light-skinned*fn2 of the three males approached Ms. Smith and then grabbed her by the arms. He pulled a gun and placed it on Smith's back and told both employees to do nothing or he would "blow [their] brains out." Ms. Smith grabbed Mr. DeMatea and began to cry. The other two males remained standing near the doors approximately twenty feet away. All three men had guns.
The men told DeMatea and Smith to take them to the theatre's office upstairs. Once upstairs, the robbers shoved Mr. DeMatea and Ms. Smith into a storage closet and told them not to leave or they would be shot. Mr. DeMatea testified that approximately three minutes passed between the time Ms. Smith was grabbed and the time that they were placed in the closet.
At both the Wade hearing and at the trial, Mr. Mason testified that he was the manager of the theatre and at approximately 10:30 p.m. on February 5, 1984, he and Ms. Cianfrani, the cashier, were in the office next to the storage room counting the night's receipts. Just as he was counting the concession money, a man, allegedly the defendant, came into the office, grabbed the money on the desk, and put a gun to Mr. Mason's head, threatening to blow his brains out if he did not open the safe. Because he was nervous, Mr. Mason testified
that he had difficulty opening the safe. The robber told Mr. Mason to hurry up and repeated his threat.
After Mr. Mason opened the safe, the robber directed him to stand back and hand him a nearby coin bag used for gathering the money. He then told Mr. Mason to sit down. The robber then put his gun back in his coat and as he left stated to both employees: "Don't forget, I have a friend." Mr. Mason testified that the entire incident lasted approximately ten to fifteen minutes.
Ms. Cianfrani testified that while one robber ordered Mr. Mason to open the safe in the office, another one "stayed at the door and he was standing directly in front of me. He held a gun straight in front of me and it was fairly close to my face. . . ."
After approximately ten minutes in the storage closet, hearing no sounds from the hallway, Mr. DeMatea slowly opened the door. Seeing no one in the hallway, he walked into the office and saw Mr. Mason and Ms. Cianfrani seated at their desks. The police were called and the four employees gave formal statements to the police on the night of the robbery.
A few days after the robbery, Mr. Mason gave a description to the police from which a composite picture was drawn. Mr. Mason was shown the completed composite picture that was marked into evidence. Shortly after the robbery, Mr. Mason viewed photographs at the theatre. He did not identify the defendant in any of the pictures shown to him at the theatre. In fact, it is unclear from the record whether the photographs viewed at the theatre even contained a photograph of the defendant.
The identification procedure in question took place on April 3, 1984, approximately two months after the robbery. On that day, Mr. Mason was summoned to the Cherry Hill police station. Mr. Mason met with three detectives of the Philadelphia Police Department and one detective of the Cherry Hill Police Department. Two officers, Detective Rago of the Philadelphia
Police Department and Detective Grady of the Cherry Hill Police Department, spoke to Mr. Mason. Mr. Mason testified that he was informed by Detective Grady that "[t]here were detectives from Philadelphia who had photographs of a man who they might believe was the man who held us up."
Detective Rago of the Philadelphia Police Department conducted the photographic array. When Detective Rago assembled these pictures he had never looked at the composite made by the Cherry Hill Police Department nor had he been provided by the Cherry Hill police with any information regarding the description of the perpetrators. Detective Rago became involved in the theatre robbery investigation as part of a longer, ongoing investigation into a series of crimes committed in Philadelphia. He testified that he assembled the photographs because "my investigation had revealed to me what I felt to be prime suspects in a series of incidents."
Mason was told not to pick a picture unless he felt "positive about it." Detective Rago testified that initially he displayed to Mr. Mason three folders containing twenty-four black-and-white photographs all of black males of similar complexion most being between the ages of twenty-five and thirty years old. Each folder contained eight pictures. Defendant's photograph was included in the black-and-white photographs. At both the Wade hearing and at the trial, Detective Rago testified that Mr. Mason did not select a picture from the black-and-white photographs. Mr. Mason insists that he did identify the defendant in a black-and-white photograph.
Mr. Mason then was shown two albums that contained approximately thirty-eight color photographs. Detective Rago advised Mr. Mason that the photographs were in color and were of individuals in a more natural setting. The pictures were taken at defendant's birthday party. He appeared in thirteen or fourteen out of the total number of thirty-eight photographs, in ten photographs with one to two other individuals, once each with three others and four others, and twice with six others.
There were other black males in the color photographs who also appeared more than once.
Mr. Mason identified the defendant in only one color photograph. The picture that Mason identified consisted of two men, and the other person in the picture was also in a photograph in the black-and-white photographic array. Mason distinguished the defendant from the other man by noting that the defendant was wearing a pink shirt.
On September 17, 1985, more than nineteen months after the robbery, a Wade hearing was held. At the hearing only Mr. Mason and Detective Rago testified. At the Wade hearing, and later at trial, Detective Rago testified that Mason was with him for about fifteen or twenty minutes, that it took Mason about two or three minutes to look at the black-and-white photographs and about four or five minutes to look at the color photographs. According to Detective Rago, his combined time of reviewing the pictures was somewhere between six and ten minutes. Mason contradicted this testimony and claimed that it took him about one hour or one hour-and-a-half to look through all the pictures.
Mr. Mason testified at the Wade hearing that the light in the office where the robbery took place was good, that the person who threatened him had stood about three feet away from him, and that he had no trouble seeing the perpetrator. He stated that the entire robbery took approximately ten to fifteen minutes. While there were minutes when he did not observe the robber, Mason testified that he did observe him for some five to ten minutes. He also testified that he was shocked and scared during the robbery. At trial, Mr. Mason described the man as black, in his mid-twenties, approximately six feet tall with a mustache. He also stated the man was wearing nothing on his head.
At trial, both Mr. Mason and Detective Rago substantially reiterated their earlier Wade hearing testimony. At both the Wade hearing and at ...