On appeal from the Superior Court, Law Division, Sussex County.
Pressler, Scalera and Stern. The opinion of the court was delivered by Pressler, P.J.A.D.
The significant issue raised by this appeal is the admissibility under Evid.R. 56(2) of expert testimony by a psychologist explaining in general terms the factors which affect the reliability of eyewitness identification. Although this question has been considered within the last several years by a number of state and federal courts, it has not yet been addressed in this jurisdiction in a reported opinion. Having considered the record in this case, the literature and the judicial views expressed elsewhere, we have concluded that the question of the admissibility of the evidence proffered here could only have been resolved by a hearing under Evid.R. 8 to determine its scientific reliability and the extent to which, if at all, it would have assisted the jury in its understanding of relevant matters beyond the common knowledge of human experience. No such hearing was held here, and we consequently remand so that one may now be conducted.
Defendant Marlo Gunter was charged with a series of related crimes arising out of the armed holdup of a McDonald's restaurant, including robbery in the first degree, N.J.S.A. 2C:15-1; aggravated assault, N.J.S.A. 2C:12-1(b)(4); and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4. Following a trial by jury, he was convicted of all three charges. He was sentenced on the robbery conviction to a 20-year term subject to a 7-1/2 year parole ineligibility to be served consecutively to a 56-year term imposed by a New York court. The sentences on the other two convictions, 18 months subject to an 18-month parole ineligibility period and 7 years subject to a 3-1/2 year parole ineligibility period, respectively, are to be served concurrently with the armed robbery sentence.
According to the State's proofs, at 11:00 p.m. on the night of May 18, 1983, two masked robbers entered a McDonald's restaurant in Sussex County, New Jersey, just as its manager, David Myers, was in the process of locking up. The only other occupants of the restaurant were three other employees who were performing their regular closing-up chores. One of the intruders herded those three into the walk-in freezer. That assailant was not seen again by Myers and was never identified by any of the four. The other assailant, brandishing a small-caliber pistol, walked Myers to his desk and demanded that Myers get a bag and put money into it. Apparently, the assailant was not able to see what Myers was doing and could not see well enough to fill the bag himself. He therefore pushed the stocking-mask covering his face up to his hairline. When he saw Myers then looking at his face, he struck him across the nose with the pistol, causing rather profuse bleeding. The assailant then left his face exposed until he had gotten all the money and had brought Myers into the freezer with the others. According to Myers, during this entire time the assailant continued to point the pistol at him. The four employees remained in the freezer for about 25 minutes and then telephoned the police. Myers, the only one who could make an identification and only of the one assailant whose face he had seen, gave the police a general physical description of the assailant.
Within the next week or so, Myers, according to his testimony, was shown three separate photographic arrays on three separate occasions, the first consisting of a group of 35 to 40 photographs, the second a group of about 15 photographs, and the third a group of six photographs. All of the arrays were brought to him at the restaurant while he was working. He identified none out of the first group. Out of the second group he chose two, possibly three, which he thought looked like the assailant. Out of the last group, he made a positive identification of defendant. The officer who conducted the photo arrays, State Trooper Emma, had no knowledge, recollection or record
notation of the first array and opined that some other officer may have conducted it.
With respect to the 15-photograph array, Emma testified that it included two or three four-year old pictures of defendant. The New Jersey police had been supplied with these photographs by New York police, who had arrested defendant several days after the McDonald's robbery as he and another were apparently fleeing in a borrowed car from a fast-food restaurant in Rockland County, New York, which had been held up by two masked armed men. According to Emma, those photographs of defendant were not the same as each other. Also according to Emma, he did not tell Myers that the photographs he had tentatively identified in that array were those of the police suspect. Myers also so testified. Within several days after that array, Emma obtained from the New York police a current photograph of defendant which was included in the six-photo array then prepared and which Myers positively identified. Of the six photographs, only two were set against a background of horizontal lines, and of the two only that of defendant indicated the height measurement represented by the lines.
While the six-photograph array was preserved by the police, the 15-photograph array was not. Emma explained that this accorded with standard procedure, as he understood it, in which inconclusive arrays are not kept together intact. There was no particular explanation, however, for the loss of the two old photographs of defendant which had been included in the array.
As we understand the record, Myers never saw defendant again until trial, some two-and-a-half years after the robbery. He nevertheless then made a positive in-court identification although defendant had apparently gained considerable weight, 40 to 50 pounds, in the interim.
Myers' identification testimony was virtually the only evidence against defendant. Indeed, the only other evidence was Myers' identification, as similar to those he saw on the night of
the robbery, of the two stocking masks and the weapon found in the car when defendant ...