On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Before Judges Pressler, Landau and Conley.
The opinion of the court was delivered by
Following a jury trial, defendant was convicted of murder, N.J.S.A. 2C:11-2 (count one); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4 (count two); and possession of a handgun without a permit, N.J.S.A. 2C:39-5c(1) (count three). Counts two and three were merged with count one. A life term with a thirty-year parole disqualifier was imposed, as well as a $30 Violent Crimes Compensation Board penalty.
On appeal, defense counsel contends reversible error in the admission of the hearsay statement of Robin Austell through the testimony of Tracy Edwards who recounted an alleged conversation he had with defendant while both were incarcerated in the Mercer County Detention Center and while defendant was awaiting trial. In return for his disclosure to the prosecutor of the alleged conversation, Edwards received a substantially reduced sentence on his pending second degree charge. Allegedly included in that conversation was the Austell statement. In his supplemental pro se brief, defendant contends that out-of-court identifications were the result of an unduly suggestive photographic line-up, that he was denied due process because he was not able to fully disclose the fact that Robin Austell and Tracy Edwards were represented by the same attorney at the time of both her alleged police statement and defendant's alleged conversation with Edwards, that the verdict was against the weight of the evidence, that the prosecutor engaged in misconduct in his summation, and that the cumulative effect of the trial errors requires a new trial.
We are confident that all of these contentions are without merit, except the admission of Robin Austell's statement coupled with the peculiar circumstances surrounding the dual representation of Austell and Edwards. Before discussing the statement, however, we comment briefly on the identification procedures. Both eyewitnesses who identified defendant through the photographic line-up, admitted during the Wade*fn1 hearing and during the trial that defendant's photograph was the only one that fit all of the descriptive characteristics they had given to the police. But our own independent review of the photographs, of the transcript of the Wade hearing and of the trial Judge's findings, convinces us that the trial Judge did not err in concluding that the line-up was not "so impermissibly suggestive as to give use to a very substantial likelihood of irreparable misidentification." State v. Clausell, 121 N.J. 298, 324-326, 580 A.2d 221 (1990) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).
In affirming the trial Judge's Wade determination, however, we do not mean to suggest that there were not, nonetheless, serious problems with the identification, as well as the jury conviction, of defendant as the perpetrator of the murder. Suffice it to say, the State's case was riddled with problems. In addition to the admission by the eyewitnesses that only defendant's photograph contained all of the identifying characteristics, one of them, Willie Harris, when first shown the line-up, proclaimed an inability to identify anyone. Shortly after the second witness, David Munn, identified defendant as the perpetrator, Mr. Harris was shown the line-up again. He then identified defendant's photograph. Interestingly, however, both Mr. Harris and Mr. Munn, as well as a third eyewitness, Jeffrey Rock, who all claimed to have had a good look at the perpetrator's face, said he was cleanshaven. Defendant, however, not only had a mustache at the time, but it was a Fu Manchu mustache which, from his photograph taken the day after the murder, appeared to be quite distinctive. The third eyewitness, Mr. Rock, could not identify defendant from the line-up at all.*fn2
Moreover, the identification of defendant's two-door, white Pontiac Sunbird as the vehicle used in the shooting was not without substantial question. The vehicle that all three witnesses identified initially was a four-door, white Chevrolet Cavalier. Indeed, the day after the killing a vehicle matching that description was discovered in the area. Hure Benson, the owner of that vehicle, a seemingly impartial individual, told the jury that that vehicle had been stolen from his home not far from where the murder occurred on the night of the murder and was recovered the following day. The police conducted no investigation, however, of this vehicle.*fn3
Finally, there was what for all appearances was a totally impartial fourth eyewitness, Inez Houston, who went to the police the day after the shooting. She gave a description of the perpetrator that was completely different from that of Harris and Munn. She was shown the same line-up previously shown to Harris and Munn and told the police the perpetrator was not in it. She adamantly testified in court that defendant was not the killer, and that his two-door Pontiac was not the vehicle that was used. That vehicle, she said, was a four-door white Chevrolet Cavalier, similar to the vehicle initially described by Harris and Munn and similar to Benson's vehicle.
In assessing the eyewitness evidence and observing the various deficiencies in it, we are not unmindful of the discovery of glass in defendant's vehicle when it was found the day after the incident, presumably from a broken window. According to the State's expert, and based upon laboratory analysis of that glass and glass found at the scene of the murder, as well as some information received from the FBI, unsuccessfully objected to by counsel as not contained in the expert's report, there was more than a ninety-nine percent chance that the glass found at the scene came from defendant's car. However, although the eyewitnesses saw bottles being thrown at the car just prior to the shooting, none of them hit any of the windows or broke any of them. According to defendant's testimony, and consistent with the presence of a brick found inside the rear of the car along with the glass, the window was broken at the time the car was stolen from the Seven-Eleven where defendant said he had left it after locking his keys in it.
We do not point out these weaknesses to suggest any merit to defendant's pro se claim that the verdict was against the weight of the evidence. We do so only to emphasize the weaknesses of the State's evidence of guilt insofar as those weaknesses bear upon the harm that any trial error could cause. This was, after all, primarily an issue of credibility, for there was little corroborative evidence of the witnesses' identification and not only defendant's denial, but substantial alibi evidence as well. E.g. State v. W.L., 278 N.J. Super. 295, 301 (App. Div. 1995)("the question of defendant's guilt was, at best, exceedingly close. It is, therefore, clear that any error that could have appreciably tipped the credibility scale would have to be regarded as plain error having the capacity to have affected the outcome of the trial.").
And that takes us to defendant's alibi. The murder occurred at 8 p.m. Defendant said he left his home at 7:30 p.m., drove to a Seven-Eleven not far from the killing, arriving there around 7:55. When he got out of his car, he inadvertently locked the keys inside. He asked the Seven-Eleven owner if he had a coathanger. When that effort was unsuccessful, he walked the 15 or 20 minute distance to where his wife was working at the Mercer County Detention Center because she had an extra set of keys. There were two other employees on duty, both saw him on that evening and both testified that he came in between 8:15 and 8:30 and left shortly thereafter. Defendant returned to the Seven-Eleven to discover his car gone and broken glass on the ground where it had been parked. Thinking that it had been stolen, he called his wife from a pay phone. She told him to go home, obtain the insurance papers and call the police. He arrived home at 9:00 p.m. and made three calls to the three surrounding police stations, Hamilton, Ewing and Trenton. All three phone calls were recorded on the police station tapes and played to the jury. Defendant was told to report the theft in person and at 9:30 p.m. he went to the Trenton Police Station. They took his photograph and thence, according to defendant, began the nightmare.
In addition to his testimony, he presented the testimony of his wife, her two co-workers and the owner of the Seven-Eleven. It was defendant, as well, who presented the owner of the four-door white Cavalier, Hure Benson, and the fourth eyewitness, Inez Houston. To be sure, the testimony of all of these witnesses, as well as defendant, may well have been considered by the jury to have been no better than that of the State's ...