On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Before Judges Pressler, Humphreys and Wecker. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by
Following a trial by jury, defendant Donna Ridout was convicted of second-degree robbery, N.J.S.A. 2C:15-1, and of third-degree criminal restraint, N.J.S.A. 2C:13-2, as a lesser included offense of the kidnapping with which she was charged. She was sentenced to a seven-year prison term on the robbery conviction and to a concurrent four-year term on the criminal restraint and was paroled while this appeal was pending. Defendant appeals, and we reverse.
The critical issue in this case was identification. The victim, elderly and confused, who had been tied up and robbed in his own home, had identified defendant as his assailant from a photographic array shown him several days after the crime. He was unable at trial a year and-a-half later to make an in-court identification. The elderly doorman of the high-rise senior citizen building in which the victim resided had also identified defendant from the same photographic array five days after the crime as the woman who had asked him for the victim's apartment number on the day of the crime. He too was unable to make an in-court identification at trial. Thus the out-of-court identifications made by each constituted the primary evidence against defendant.
Since both the victim and the doorman had testified, their out-of-court identifications were potentially admissible as substantive evidence pursuant to N.J.R.E. 803(a)(3), formerly Evid. R. 63(1)(c), which provides that a prior statement made by a witness at trial is admissible if it would have been admissible if made while the declarant was testifying and the statement
is a prior identification of a person made after perceiving that person if made in circumstances precluding unfairness or unreliability.
Following an evidential hearing, the Judge found that the two out-of-court identifications met the conditions for admissibility stated by the rule. The fatal error he made was in telling the jury what his finding was, namely, that he had determined that the out-of-court identification procedure was not suggestive and that the conditions of fairness and reliability had been met. We are satisfied that these instructions to the jury so clearly impinged upon the jury's exclusive province to determine weight and credibility of evidence as to have denied defendant a fair trial.
The victim, as we have noted, was elderly and somewhat enfeebled at the time of the crime. Although by the time of the trial he was making his home with one of his daughters, on December 6, 1992, the date of the crime, he was still managing to live alone in a small apartment in a senior citizen complex. His monthly social security payment met his modest financial needs and enabled him to give small money gifts to his family members. Although he was fully mobile and able to do some of his own food shopping at a nearby supermarket, his family had apparently determined that he needed daily assistance with food preparation and that it was generally prudent to check up on him on a daily basis. Consequently, one or another of his daughters or his step-grandson, Robert Newton, brought him a prepared meal each day and visited with him. On three or four occasions in late November 1992, Newton, when he visited his grandfather and brought him meals, was accompanied by defendant with whom he had a friendly relationship. On December 6, 1992, two of the victim's daughters visited him, leaving him for an hour or so to do his food shopping. While he was alone, the doorbell rang and he admitted the visitor. It was his testimony that he and his visitor spoke for a while and then the visitor pushed him to the floor, tied him up with yellow tape, and took his money//--the some $267 remaining from his social security check//--out of his pocket, disconnected the phone, and left. By the time the victim's daughters returned, he had managed to free himself. He was at that time highly agitated and disoriented. The occurrence of the crime he described was, however, corroborated by the facts that the phone was disconnected and yellow tape was found by the investigating officer in the garbage pail. The victim was unable to give a discrete description of his assailant. He did, however, tell the police the woman was middle-aged. He also told his grandson, a State's witness, that the woman was about forty years old and, on the grandson's specific inquiry, that his assailant was not any person he, the grandson, had ever brought to the apartment. Defendant herself denied any involvement in the crime and so testified.
Police investigation led them to the doorman, a man in his mid-seventies, who reported that on the day of the crime a woman between sixty and seventy years old had asked him for the number of the victim's apartment. It also appeared that on the day of the crime, defendant had been in the building, claiming to have intended to visit with a friend of hers whose mother also lived there but that no one was at home. As we further understand the record, police attention finally focused on defendant, then twenty-nine years old, as the result of one of the victim's daughters having so suggested to one of the investigating officers.
Acting upon that suggestion, the police arranged an array of seven photographs, including defendant's, whose photograph they had as a result of a prior arrest, although she had no record of convictions. All the women in the photographs matched defendant's actual description rather than the information related by the witnesses. In any event, the victim was brought by relatives to the police station on December 10, four days after the crime. He was shown the array and identified defendant. The doorman was shown the array on the following day, and he too picked out defendant's photograph as that of the woman who had been looking for the victim's apartment despite his earlier statement that the woman had been between sixty and seventy years old.
The trial commenced with a Wade *fn1 hearing to determine the admissibility of the out-of-court identifications. Both the victim and the doorman testified, as did the police officer who conducted the identification procedures and the victim's daughter who had brought him to the police station and observed the proceedings. Although neither the victim nor the doorman could make an in-court identification of defendant, both recalled having made the out-of-court identification and, to a greater or lesser degree, the content of their respective statement to the police at the time. Despite the evident confused mental state of the victim at the time he made the photo identification and despite the witnesses' estimates of the age of the assailant each had seen, the Judge determined that the identification procedure was not suggestive and hence that the evidence of the out-of-court identification by both witnesses was admissible.
At the close of the State's proofs, the Judge instructed the jury that although the witnesses were unable to make an in-court identification, it would have before it the photographic array used in the out-of-court identification and could consider that both witnesses had selected ...