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State v. Delgado

July 31, 2006


On certification to the Superior Court, Appellate Division.


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

On November 25, 1998, at approximately 7:00 a.m., Daniel Delgado shot Daniel Cortez to death outside Cortez's home on North Ninth Street in Newark. The motive for the murder appears to have been revenge for the victim's relationship with Sandra Jorge, who had been Delgado's girlfriend.

Four people witnessed Cortez's shooting from various viewpoints. Al Bucci gave police a description of the shooter and his vehicle, a minivan. Bucci also gave police the first three letters of the vehicle's license plate and told them that the vehicle possibly was missing one hubcap. That same day the police stopped Daniel Delgado, who was driving his mother's minivan. The minivan had a missing hubcap and its license plate's first three letters matched those noted by Bucci. Eight months later, a detective showed Bucci a six-photograph array, which included a picture of Delgado. Bucci was unable to make an identification.

On the day of the shooting, a detective and investigator visited Edmund DiEduardo, another of the witnesses. They showed him the six-photo array that contained Delgado's picture as well as photographs of the minivan. DiEduardo could not make an identification of either. The subsequent police report stated that DiEduardo failed to make a positive identification. Seven and a half months later, two detectives showed DiEduardo the same photo array. This time, he picked Delgado as the shooter. Although DiEduardo also identified Delgado's minivan, at trial he insisted that the minivan was not the vehicle used in the shooting.

Richie Munoz, a cousin of the victim, was eleven years old at the time of the shooting. On that day, Munoz was shown Delgado's minivan, but he did not recognize it. Later that evening, Munoz was shown the six-photo array. He picked out two photos, one of which was Delgado's, but could not make a positive identification. The police report simply stated that fact. Seven and a half months later, detectives again showed Munoz the photo array. This time, Munoz identified Delgado as the shooter. At trial, Munoz testified that the photo of the minivan depicted the same kind of van he saw, but that he could not be certain it was the one used by Delgado.

Anthony Melillo avoided the police on the day of the shooting because he did not want to get involved in the matter. Three weeks later, a detective interviewed him at a police station, but the interview was terminated when Melillo did not appear to be cooperative. Seven months later, detectives spoke again with Melillo and this time showed him the six-photo array. He identified Delgado as the shooter and later identified a photo of Delgado's minivan as the vehicle used in the shooting. At trial, Melillo testified that he had lied at his first interview because the interviewing detective was hostile toward him.

Delgado testified that on the day of the shooting, he left for work from his mother's house, using her minivan, at 6:30 a.m. After stopping for breakfast, he drove to his job in Union, where he clocked in at 7:30 a.m.

The trial court conducted a pretrial Wade hearing and determined that the out-of-court photo identifications procedures were not improper, allowing them to be used at trial. Delgado's first trial ended in a mistrial when it became known that the prosecutor had failed to provide defense counsel with information about a negative response that the witness Bucci had given the police in respect of the photo array two days after the shooting.

At a second trial, the jury convicted Delgado on all counts. He received a sentence of forty years with a thirty-year parole disqualifier for murder and a concurrent five-year term for unlawful possession of a weapon. A third charge was merged into the murder conviction.

Delgado appealed. In an unpublished opinion, the Appellate Division affirmed his convictions and sentence. The Court granted Delgado's petition for certification.

HELD: Because defendant knew about all of the missed and positive out-of-court identifications before trial and fully explored them in questioning witnesses, the Court concludes that he received a fair trial despite any deficiencies in the police reports. Given the importance of ensuring accuracy and integrity of out-of-court identifications, however, the Court is exercising its constitutional rule-making authority to require, as a condition to the admissibility of out-of-court identification, that to the extent feasible, the police are to record the dialogue between witnesses and police during an identification procedure. The Court refers the matter to its Criminal Practice Committee for the development of an appropriate implementing Rule.

1. Defendant contends that the State has an obligation to disclose information about "failed or inconclusive identification attempts" as well as positive identifications and that the failure to record what occurs at an identification procedure is akin to the destruction of relevant, if not exculpatory, evidence. The State responds that Delgado knew all of the details of the out-of-court identification procedures that resulted in failed and positive identifications. Armed with that information, the State argues, Delgado was free to cross-examine and impeach the State's witnesses, attack the State's case, and present a full defense. (pp. 12-13)

2. The Court has previously held that law enforcement authorities should make a complete record of an identification procedure if it is feasible to do so, to the end that the event may be reconstructed in the trial testimony. The Court went on to say that an omission, if not explained, should be weighed in deciding on the value of the identifications, both out-of-court and in-court. The Court now notes that the importance of recording the details of what occurred at an out-of-court identification flows from an understanding of the frailty of human memory and the inherent danger of misidentification. Requiring the recordation of identification procedures, to the extent feasible, is a small burden to impose to make certain that reliable evidence is placed before a jury and that a defendant receives a fair trial. (pp. 13-17)

3. The Court commends the Office of the Attorney General for issuing guidelines on identification procedures in 2001. The guidelines provide, in part, that "a complete and accurate record of the outcome of the identification procedure is crucial." Specific instructions are given in respect of the handling of both positive and negative results from photo and live identification procedures. (pp. 17-18)

4. The Supreme Court has a constitutional obligation through its supervisory role over the court system to ensure the integrity of criminal trials. Consistent with that obligation, the Court requires that as a condition to the admissibility of an out-of-court identification procedure, law enforcement officers are to make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the questioner, and the results. When possible, a verbatim account of any exchange between the law enforcement officer and a witness should be reduced to writing. When not feasible, a detailed summary of the identification should be prepared. Tape recordings will serve as much to protect the police from claims of improper conduct as it will to preserve evidence. (pp. 19-21)

5. The Court refers the matter to its Criminal Practice Committee for the preparation of a Rule that will incorporate the recording requirements for out-of-court identifications. (pp. 21-22)

6. Delgado claims that the failure of the Newark police to make a detailed record of the out-of-court identification procedures denied him exculpatory information and therefore a fair trial. The Court disagrees. There was full disclosure of every positive, equivocal, and missed out-of-court identification. The photographic arrays were kept intact and the police did not fabricate any evidence. The police simply did not prepare detailed reports on the identification procedures. Despite those deficiencies, Delgado was not deprived of relevant discovery or of a fair trial. (pp. 22-25)

7. The Court disagrees with Delgado's contention that the trial court should have conducted a Wade hearing on the identification of the minivan. Courts that have addressed this issue have held that the factors surrounding automobile identifications, such as the suggestiveness of the procedures, go to the weight and not the admissibility of the evidence. The jury had the opportunity to determine what weight to give the vehicle evidence. The trial court did not commit any error in allowing testimony on the identification of Delgado's minivan. (pp. 25-28)

The judgment of the Appellate Division is AFFIRMED.


The opinion of the court was delivered by: Justice Albin

Argued March 21, 2006

A jury convicted defendant Daniel Delgado of the murder of Daniel Cortez based primarily on eyewitness testimony. At trial, three witnesses testified that defendant shot Cortez. Shortly after the murder, however, two of those witnesses were unable to identify defendant from a photographic array. When the police showed the same array to those two witnesses a little more than seven months later, they positively identified defendant. Defendant contends that the police were required to record or summarize in a report the dialogue between the witnesses and police during the out-of-court identification procedures. The failure of the police to do so, defendant argues, resulted in the loss of critical evidence that denied him a fair trial.

Some witnesses at trial also identified defendant's mother's minivan as the vehicle used by the shooter. Defendant complains that his due process rights were violated because the police showed witnesses only that minivan or photographs of it during the murder investigation. Defendant suggests that the police should have conducted an out-of-court procedure akin to a car lineup or photographic array of cars.

The Appellate Division upheld defendant's convictions. Because defendant knew of the missed and positive out-of-court identifications before trial and fully explored them in questioning witnesses, we conclude that he received a fair trial despite any alleged deficiencies in the police reports. We also reject, as did the Appellate Division, defendant's invitation to impose an unprecedented obligation on the police to conduct lineups of inanimate objects, such as cars, as a precondition to the admissibility of identification testimony concerning such objects.

We therefore affirm defendant's convictions for murder and related crimes. However, given the importance of ensuring the accuracy and integrity of out-of-court identifications, we will exercise our rulemaking authority to require, as a condition to the admissibility of out-of-court identifications, that the police record, to the extent ...

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