The opinion of the court was delivered by: Verniero, J.
On certification to the Superior Court, Appellate Division.
In this criminal appeal, we consider whether the jury instructions on identification should have been "tailored" or "molded" to the unique facts of the case. Defendant was convicted of armed robbery largely on the basis of eyewitness testimony. In essence, defendant argues that the trial court committed plain error because it did not comment on the perceived weaknesses in the State's evidence. We conclude that the trial court did not err in its charge to the jury. Therefore, we affirm defendant's conviction.
On February 19, 1996, Morningstar Santana, along with her friends, Crystal Matos and Ruth Acosta, and Santana's boyfriend, George Power, were in Santana's Paterson apartment in the Alabama housing complex. Santana's eleven-year-old son Jason and his friend also were present. The adults were in the living room while the children were in a back bedroom.
Sometime around 11:30 p.m., someone knocked on the door. Matos opened the door, and a man entered, brandishing a gun, and announcing, "this is a [expletive] holdup." The man was wearing a ski hat that covered the top of his head to his eyebrows, but revealed his face. Santana recognized the perpetrator as someone she knew from the housing complex. Although she did not know his last name, Santana knew his first name as "Eddie." She claimed to have seen him for six or seven years in or around the complex. Acosta, who also lived at the complex, did not recognize the perpetrator; she did not believe that he lived in the area. Power likewise said that he had not seen the person before that day.
After forcing the adults to kneel with their hands behind their heads, the perpetrator went through everyone's pockets, taking what money he found. At one point, the perpetrator told Power to lie down on the floor, grabbing and throwing him down when he misunderstood the command. Dissatisfied with the money he had obtained, the perpetrator began to yell, "this isn't it, this isn't it." He kept telling the group that he knew there was more money present. After Santana's son Jason momentarily entered the room, Santana became fearful and told the perpetrator that there was money in a back bedroom.
The perpetrator entered the bedroom, keeping his firearm pointed at Power's head, and threatening that Power would "get it" if anyone "tried anything." Once in the bedroom, Power told the perpetrator that there was money in the dresser drawer. The perpetrator took several hundred dollars, saying, "this is what I'm talking about." The perpetrator then hit Santana in the back because she kept staring at him, but she continued to stare at him nonetheless. Similarly, at one point the perpetrator became impatient with Matos, striking her in the head with his weapon. The perpetrator forced the victims to lower their pants to slow their pursuit. Acosta was spared that embarrassment because according to the perpetrator, she reminded him of his mother. After taking more valuables, the perpetrator eventually yanked the receiver from the bedroom telephone and fled.
The police were called from a second phone in the apartment. Within a short time, the police arrived and Santana informed them that they had just been robbed by "Eddie West." Santana would later testify that a woman in the complex who had seen a man running from the building had told Santana that the man's name was "West."
The day after the robbery, Corey Armstead, a neighbor and an acquaintance of defendant, told Santana that the perpetrator's name was "Gregory Marshall," but that he was known also as "Durrell." (We do not know why Armstead gave those names.) That same day, Santana went to the police station and looked through photo books to no avail. The record does not reveal whether defendant's photo was in the books shown to Santana. Santana also was shown a picture of Gregory Marshall, the person whose name was supplied by Armstead. Santana said the picture of Marshall was not that of the man who had robbed her.
About two months later, the police considered defendant a suspect in this robbery after he was implicated in and arrested for a homicide occurring during the course of a similar robbery. On April 20, 1996, detectives asked Santana to report to police headquarters. While there, Santana gave a statement and was shown a photographic lineup of five men. Santana identified defendant as the perpetrator who had robbed her and her guests.
Shortly thereafter, Power and Acosta also were asked to report to police headquarters. Separately, detectives showed Power and Acosta photo arrays and each identified defendant as the perpetrator. Neither Power nor Acosta hesitated in making the identification. Acosta would later acknowledge that Santana and Power had told her that they had identified someone as the perpetrator and that she (Acosta) should go to police headquarters to "sign the picture."
The Passaic County Grand Jury returned an indictment charging defendant with four counts of first-degree robbery, second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon, and second-degree possession of a weapon by a previously-convicted person. Defendant pled not guilty on September 3, 1996.
Defendant was tried before a jury on May 13-15, 1998. Santana, Acosta, and Power all testified, relaying their accounts of the robbery and their identification of defendant's photograph at the police station. They also identified defendant at trial as the man who had robbed them. Matos was not located by the investigating detectives, nor did she testify at trial.
Defendant testified on his own behalf. He stated that he had lived at the Alabama housing complex in 1989, but not at the time of the robbery. He testified further that in February 1996, he had spent two days in Paterson while traveling from North Carolina to purchase drugs in New York. However, defendant claimed he did not go to the Alabama housing complex at that time. He denied knowing or ever having met any of the victims, except for Santana, whom he possibly met when he was selling drugs. When asked at trial if he had robbed Santana and her guests, defendant replied: "No. It's impossible, impossible."
Defense counsel and the prosecutor devoted a significant portion of their respective closing arguments to the identification question. In particular, defense counsel stressed that Santana had provided different names for the perpetrator, and that reasonable doubt arose because the victims' identifications of defendant were subject to error. The prosecutor rebutted those suggestions by arguing that providing different names for the perpetrator was not the same as making inconsistent identifications, that the victims had ample opportunity to view the perpetrator during the commission of the crimes, and that the multiple identifications of defendant amounted to proof of his guilt beyond a reasonable doubt.
At the charge conference, the trial court noted, "[i]dentification, obviously that's the issue." Before providing the specific charge on identification, the court instructed the jury as follows:
Ladies and Gentlemen, in the trial of this case, as in all cases, as you already know, the Court and the jury have separate and distinct functions to perform
[Y]ou, the jury, are the sole and exclusive judges of the facts, the weight of the evidence, the credibility of the witnesses, the inferences to be drawn from the evidence and all issues and questions of fact whatever including the ultimate conclusion of guilty or not guilty.
The power to pass upon and decide the facts is reserved for you and you alone. The Court has the right to discuss the evidence if it chooses to do so. However, any discussion of the evidence only represents my recollection of the facts and if what I say about the evidence does not coincide with your recollection, you must disregard my statement as to what the evidence was and rely solely upon your own recollection. At this point I advise you that I intend to make little or no comment in connection with the testimony and evidence.
After giving instructions relating to the burdens of proof and the elements of the charges contained in the indictment, the court gave the jury the following charge on identification:
This defendant as part of his general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense or offenses.
Where the identity of the person who committed the crime or crimes is in issue, the burden of proving that identity is upon the State. The State must prove beyond a reasonable doubt that this defendant is the person who committed the crime or crimes. The defendant has neither the burden nor the duty to show that the crime or crimes, if committed, were committed by someone else or to prove the identity of that other person. You must determine, therefore, not only whether the State has proven each and every element of the offense or offenses charged beyond a reasonable doubt, but also whether the State has proved beyond a reasonable doubt that this defendant is the person who committed the offense or offenses.
In order to meet its burden with respect to the identification of the individual who committed the offenses the State has presented the testimony of several witnesses. You'll recall they included Miss Santana, Mr. Power and Miss Acosta. And you will recall that those three individuals testified in this courtroom and identified the defendant in this court as the person who committed the offense or offenses.
According to the witnesses, their identification of the defendant in court is based upon the observations and perceptions which they made of the defendant on the scene at the time the offense or offenses were being committed.
It is your function as jurors to determine what weight, if any, to give to this testimony. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged.
In going about your task you should consider the testimony of the witness or witnesses in the light of the customary criteria concerning credibility as I have explained it to you. It is particularly appropriate that you consider the capacity or the ability of the witness to make observations or perceptions as you gauge it to be and that you consider the opportunity which the witness had at the time and under all of the attendant circumstances for seeing that which he or she says she saw and that which he or she says she perceived with regard to the identification of the person who committed the alleged offenses. And unless the in- court identification results from the observations or perceptions of the defendant by the witness or witnesses during the commission of the crime or crimes rather than being the product of an impression gained at the out-of- court identification procedure, it should be afforded no weight. Thus, the ultimate issue - I'm sorry - thus, the ultimate issue of the trustworthiness of an in-court identification is for you to decide.
If after a consideration of all of the evidence you have a reasonable doubt as to the identity of the defendant as the person present at the time and place of the crime, you must find him not guilty. If, however, after a consideration of all of the evidence you are convinced beyond a reasonable doubt of the defendant's presence at the scene, you will then consider whether the State has proven each and every element of the offense or offenses charged against him beyond a reasonable doubt.
The first order of business, therefore, when you commence with your deliberations should be the issue of identification. If you are convinced beyond a reasonable doubt that the State has established the presence of the defendant at the scene, then you should go on to consider the six counts contained in the indictment. If you are not convinced that the State has established the presence of the defendant at the scene beyond a reasonable doubt, then you should end your deliberations because obviously without the proof you're not satisfied that he was the individual who was present, then it would be meaningless to consider the various offenses charged.
But, as I point out, if you are convinced beyond a reasonable doubt that the identification of this defendant has been established in terms of his presence at the scene, then you would go on to consider the six different offenses contained in the indictment.
Following that charge on identification, the court further instructed the jury:
It is your task to determine the guilt or innocence of this defendant from all of the evidence. You've heard the State's case and the case for the defendant and you are aware of the conflicts in the testimony . . . .
In weighing the testimony and credibility to be given to a witness you should consider the attitude and demeanor of the witness on the stand, the impression that witness made upon you in giving his or her testimony, their ability to make observations and to relate them, the interest that the witness may have in the outcome of the case and in general any other factor which in your judgment bears upon the truth of what occurred on that occasion.
Defendant did not object to any portion of the charge, nor did he request any additional ...