On appeal from Superior Court of New Jersey,
Before Judges Collester, Fuentes and Bilder.
The opinion of the court was delivered by: Collester, J.A.D.
PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2004
The State appeals from an order of the Law Division dismissing an indictment against defendant Michael Ruffin with prejudice. We reverse.
Defendant was indicted by a Passaic County grand jury for the crimes of third-degree burglary (N.J.S.A. 2C:18-2), fourth degree theft (N.J.S.A. 2C:20-3) and fourth-degree credit card theft (N.J.S.A. 2C:21-6c(1)). His first trial ended in a mistrial in June 2003, following the inability of the jury to reach a unanimous verdict. His retrial began on October 7, 2003. A jury was selected, but before it was sworn, the trial judge considered defendant's motion in limine for an evidentiary hearing on the admissibility of identification testimony by the victim. The State objected on grounds that the judge at the earlier trial admitted the testimony and that the ruling was"the law of the case." However, the retrial judge declined to follow the prior ruling and ordered an evidentiary hearing, describing its scope as follows:
[T]he hearing that is required to be conducted here is a two-pronged hearing. One, whether there was any impermissibly suggestive photographic identification procedure utilized by the police and secondly, whether the failure of the police to preserve any such photographic array or the photographs used in this procedure affects the integrity of the criminal justice process to such an extent that the sanction of dismissal is warranted under State v. Peterkin.
At the hearing the State called its eyewitness, Alexandra Batista. Ms. Batista related that in the early hours of March 21, 2001, she had fallen asleep with her bedroom light on. At about 2:30 a.m., while she was still"halfway asleep," she saw a man enter her bedroom. The man stood six to seven feet from her bed, looked at her, saw she was awake, and said,"Hey, how you doing?" He then promptly left the room.
Ms. Batista reported the incident to the Paterson police, giving a description of the intruder as an African-American man, 5'7" to 5'10" tall, weighing about 145 to 150 pounds with"big eyes." Although she had never seen the man before that night, she told police she could identify him. Later that day, she received a call from Paterson Detective Carl Popewiny requesting her to come to police headquarters to see if she could pick out the intruder from books of photographs. Ms. Batista arrived the following morning. She met with Lieutenant Scott Verrone, who told her that Detective Popewiny left word that she should review some"mug books." Verrone led her to a cubicle and gave her several loose-leaf books containing photographs of African-American males. He told her that if she saw a photograph of the intruder, she was to take it out of the book and report to him at the police desk.
Ms. Batista recalled that there were at least four books, each with about forty pages of photographs and four photographs on each page. None of the photographs were damaged, dog-eared or highlighted in any way. After she looked through about two and a half books, Ms. Batista saw a photograph of the intruder. She reviewed the books she had already gone through to see if there were any duplicate pictures of the man and found none. After going through about twelve more pages, she stopped, removed the photograph from the plastic pocket and told Lieutenant Verrone she found a picture of the man. At his instruction she signed and dated the photograph. The photograph identified was of the defendant. Both at the first trial and the subsequent evidentiary hearing, Ms. Batista identified the picture she picked out of the mug book and made an in-court identification of defendant as the man who entered her bedroom in the early morning of March 21, 2001.
Detective Popewiny testified at the hearing that when he was told Ms. Batista believed she could identify the intruder, he asked her to come to Paterson headquarters to look through the appropriate mug books. He did not suggest to her that the intruder's photograph was among the ones she would view. He testified that his first knowledge of defendant was after Ms. Batista selected his photograph. When asked about how the mug books were created and maintained, Popewiny said the officers in the detective bureau divided photographs of arrested males in separate loose-leaf binders for white, Hispanic and African-American males. Four photographs were randomly placed in each loose-leaf page. There was no separation based on height, weight, hair style, facial hair or complexion. Most of the photographs were in color, and all the men were depicted looking straight into the camera. Neither the books nor the pages were numbered. Each photograph had an identification number so that a computer search would bring up the name of the person depicted. If a witness selected a photograph, the picture was removed from the book and retained by the detective assigned. Another photograph was randomly assigned in its place. No records were kept of which books or photographs were reviewed by a witness.
Lieutenant Verrone testified that the mug books were kept in a metal closet in the detective bureau. He said that in early 2002 the mug books which had been used were"destroyed" because there were too many photographs in each book, many of which were outdated. New mug books were constructed to take their place. Since no records were kept of the photographs in the discarded books, it was impossible to recreate the books or duplicate all the photographs reviewed by Ms. Batista at police headquarters, which by her memory numbered over 400.
The trial judge excluded any trial testimony of Ms. Batista's out-of-court identification of the defendant on grounds that the mug books reviewed by Ms. Batista had not been preserved. He reasoned that since the books were not preserved in the same condition, the State had not satisfied its burden of proof.
...[I]t is clear that the police did not preserve the photographic book shown to the witness alleged to contain photographs...of only black males who were contained in that book.
I'm not satisfied...that the State has sustained the burden of proof with regard to the identification procedure utilized in this case as it pertains to those photographs. It is a requirement of the law that the police preserve such evidence so that the fairness of an identification procedure may be challenged. [Citing State v. Earle, 60 N.J. 550 (1972).] ...The testimony of Detective Popewiny...is that the Paterson Police Department maintained at the time of this investigation eight books each containing four photographs per page, which were arranged in random order. ...[A]ccording to his testimony, he wasn't sure whether they were all -- all mixed -- all color photographs or black and white or mixed. He has no idea of what particular photographs were shown to the witness. However, he further indicates that his police report contains no record of any identification of the photographs that were shown, the name of the other suspects who were contained in that book. There is no identifying number given to the book. There is no information from which such a photographic array could be reconstructed.
The trial judge went further. Although there was no conflicting testimony, he found that Popewiny and Verrone were untruthful in their testimony when they said the mug books in use at the time of Ms. Batista's photo identification had been discarded.
There is no plausible explanation offered by the police which would account for the failure to preserve the photographic books for later review...I'm not satisfied that the books are destroyed. I suspect -- and it's more plausible that the police are just too lazy to look for the books in the police department. They're probably being used to prop open a door somewhere or they're collecting dust in the basement somewhere at the P.D. But given the sheer size of the books and the fact that they were utilized by the police for so long, it's incredible to believe that they would simply throw them out or somehow destroy them without making some record as to the destruction. Like all other evidence that is destroyed by police departments, generally there's some records, some indicia of what existed, what happened to it, whether it was destroyed, if it was destroyed.....
I don't believe the testimony of the police. I don't believe Detective Popewiny and I don't believe the testimony of [Lieutenant Verrone]...I just don't believe the testimony that these [mug books] don't exist.
The judge next concluded from the fact that the mug books were not produced at the evidentiary hearing that the Paterson Police Department had deliberately adopted a procedure to undermine a defendant's right to challenge an out-of-court photographic identification.
I believe that...there is simply a procedure in the Paterson Police Department based on the evidence here to consciously not record this information in the hope that some Court will simply turn a blind eye to this defective procedure.
Well, this Court is not turning a blind eye to that procedure, which is constitutionally defective, which the police in today's world should know is constitutionally defective. State v. Earle goes back to the 1970s and there's a legion of cases dealing with this issue. Suffice it to say that I think that there is only the inescapable conclusion which is reached that...it's a conscious or deliberate effort on the part of the police to engage in...an effort to thwart the defense in investigating matters and precluding a fair determination.
I'm satisfied that the evidence here to me suggests bad faith on the part of the police in failing to preserve that photographic record.....
...I can only conclude based on this testimony that there's really a deliberate policy of the police department to try to submarine the records, make them disappear.
Despite precluding the State from introducing evidence of Ms. Batista's out-of-court identification, the judge found that neither the photographs she reviewed nor the identification procedure employed indicated any undue suggestiveness and, therefore, her in-court identification of defendant was permitted.
There is insufficient evidence to establish in this case that there was, in fact, any suggestiveness in the photographic identification procedure that was used by the police. And the reason for barring the [out-of-court] evidence is because the defendant's fundamental right to a fair trial is implicated rather than as a result of any shown suggestiveness.
The assistant prosecutor immediately sought a stay in order to appeal the suppression of the out-of-court identification. The judge denied the motion, saying that the State's legal position"had no merit." He declared a fifteen minute recess so that the prosecutor could prepare his witnesses in light of the court's ruling. After half an hour, the trial judge resumed the bench, noted that the assistant prosecutor had not returned and said he would wait five minutes before taking action. Exactly five minutes later the judge stated on the record that he had personally called the Passaic County Prosecutor to express his displeasure with the absence of the assistant prosecutor. When the assistant prosecutor appeared shortly thereafter, he apologized to the judge and said that he had been discussing the court's ruling with members of the appellate section in an effort to seek leave to appeal.*fn1 The judge responded that the conduct of the assistant prosecutor was a"flagrant affront to the dignity of this Court." While he accepted the assistant prosecutor's apology, the judge stated that"those he was with, who were in a supervisory capacity over him, knew or should have known there was a direct order from this Court to be here at a stated time." He issued an order directing that the Passaic County Prosecutor's Office pay the sum of $1,000 to the State Treasury"out of funds that are held by the Prosecutor's Office as forfeited funds which come from the proceeds of criminality that are utilized by the State of New Jersey for the law enforcement purposes in Passaic County."*fn2
It was in this charged courtroom atmosphere that the assistant prosecutor again requested a stay of proceedings to appeal the evidential ruling, arguing
I should not be made to try a case in which half the evidence has now been taken out of the case. And we feel that we have a grounds to appeal Your Honor's decision ...