On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 2001-4-1778 and 1779.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Re-Argued September 20, 2006
Before Judges Stern, A. A. Rodríguez and Sabatino.
Defendant was convicted of carjacking, N.J.S.A. 2C:15-2a(1),(2), and (3), armed robbery, N.J.S.A. 2C:15-1, unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a. He was subsequently convicted by the same jury of possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. The conviction of possession of a weapon for an unlawful purpose was merged into the carjacking and robbery convictions, and defendant received concurrent sentences aggregating twenty-five years with 85% to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The charges stemmed from a January 6, 2001 incident, in which Tynetta Kareem was approached as she sat in the car of her friend, Vicky Leonard. A man brandished a handgun and directed Kareem to exit the vehicle. He then demanded Kareem's jewelry and ripped it off her when she failed to comply with his request quickly enough. The perpetrator then drove away in the vehicle, which also contained both the handcuffs of both Kareem and Leonard.
Three days later, police officers approached Leonard's vehicle after an unidentified individual claiming to be Leonard's brother saw it parked on a street in Newark. Alterick Hamlet was seated in the driver's seat. Defendant was in the passenger seat. Police officers arrested the two individuals, called Kareem to the police station, and showed her defendant's picture in a photographic lineup. Kareem identified him as her assailant. The trial court initially suppressed testimony regarding defendant's out-of-court identification, because the original photographic lineup was misplaced but later admitted the evidence when the lineup was located. There is no contention that the evidence, if admissible, was insufficient or that the conviction was against the weight of the evidence.
In his original brief on this appeal, defendant argued that:
POINT I THE ADMISSION INTO EVIDENCE OF THE TESTIMONY CONCERNING THE INHERENTLY UNRELIABLE OUT-OF-COURT AND IN-COURT IDENTIFICATIONS BY TYNETTA KAREEM DEPRIVED [HIM] OF DUE PROCESS OF LAW GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS
POINT II THE SUPPRESSION OF THE TESTIMONY OF MR. KING'S ALIBI WITNESS VIOLATED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT III THE TRIAL JUDGE ERRED WHEN IT PERMITTED THE SOLE DEFENSE WITNESS TO TESTIFY WHILE WEARING PRISON GARB AND SHACKLES.
POINT IV THE SENTENCE MUST BE REVERSED BECAUSE THE TRIAL COURT FAILED TO SUBMIT TO THE JURY FOR DETERMINATION BEYOND A REASONABLE DOUBT THE EXISTENCE OF FACTORS WHICH THE COURT USED TO INCREASE THE SENTENCE BEYOND THAT WHICH COULD HAVE BEEN IMPOSED SOLELY ON THE FACTS REFLECTED IN THE JURY VERDICT.
On August 25, 2005, we remanded for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005). We also directed the trial court to address the following questions:
1. Was the photographic identification unduly suggestive? When the original photo array was found, the pretrial hearing was not resumed to consider that issue before the photo identification was admitted into evidence. If the trial judge concludes the photographic identification was unduly suggestive, the judge should reconsider his initial determination that the in-court identification was reliable and admissible irrespective of the out-of-court identification.
2. Would the proffered testimony of Edward Weems potentially make a difference in the outcome of the case? To that end, defense counsel may present the testimony of Mr. Weems for purposes of making a record.
3. Did witness Alterick Hamlet testify while dressed in prison clothes and/or while shackled? The parties dispute that question, and the record is unclear. If the answer is "yes" in whole or in part, does the policy of State v. Artwell, 177 N.J. 526 (2003), and the facts of this case warrant a new trial even though State v. Artwell applies only to "future cases," 177 N.J. at 539, as a per se rule.
We retained jurisdiction.
On the remand, the trial judge found no basis for granting a new trial. The judge also reimposed the original sentence.
Following the remand, defendant again argues that "[t]he out-of-court identification procedure was unduly suggestive and created a substantial likelihood of misidentification in this case"; "[u]nder the circumstances of this case, where the evidence of Mr. King's guilt consisted solely of the identification testimony of a single witness, the fact that the only defense witness testified in prison garb and handcuffs undermined Mr. King's right to due process of law and a fair trial"; and "[t]he exclusion of Edward Weems' testimony was not harmless beyond a reasonable doubt." We now reverse the conviction and remand for a new trial.*fn1
Kareem testified at a pretrial hearing regarding the admissibility of the identification. At approximately 8:30 p.m. on January 6, 2001, Kareem rode as a passenger in Leonard's vehicle, as Leonard drove to another friend's apartment complex. As they arrived, Kareem noticed a person later identified as defendant standing in the street on the driver's side of the vehicle. Kareem testified that she drew attention to the person, asking Leonard, "[l]ook at this guy, what is he up to?" Kareem estimated that the man stood approximately seven feet away from the car. At that time, Kareem noticed the man's hat and looked at his face. Kareem believed "that [the] guy look[ed] familiar."
After arriving at the apartment complex, Leonard left the engine of the car running and went into the apartment to briefly "pick something up" from her friend while Kareem remained in the car. Kareem described the evening as being "dark," but she further stated that the parking lot was under "lights." As Kareem sat in the car, she saw the man she had previously noticed walk past the driver's side and then walk to the passenger side of Leonard's vehicle. The individual said something, and Kareem gestured "what are you talking about[,]" because she did not hear or understand what he said. The individual then "held his coat back" and "showed [Kareem] his gun" as he stood approximately three feet away from the front passenger door. Kareem testified that she looked at the individual's face as he approached but then focused on the gun under his coat.
The individual then screamed at Kareem, "[g]et the F. out of the car." The individual opened the front passenger door, stood "right up on [Kareem]," and stated "[g]et the F. out of the car. I am going to [blow] you f.'g brain out." The individual noticed Kareem's jewelry and demanded she "take [it] off." He then pulled off Kareem's bracelets because she was shaking so badly that she could not take them off herself. Kareem testified that the lighting conditions were sufficient for her to see his face clearly. The entire incident lasted less than five minutes.
As Kareem exited the vehicle, the perpetrator noticed the pocketbook she was wearing around her waist. He told her to "leave that, too." Again, Kareem testified that she was looking "from him to the gun." Finally, Kareem gave up her pocketbook and ran towards the apartment while "screaming." She did not look back but "hear[d] him get in the car." She testified that "it didn't sound like he knew how to drive a stick[,]" because "[h]e was making all this noise trying to get out of the parking lot."
After reaching a point of safety, Kareem contacted the police and gave them a description of her assailant. Kareem described the assailant a having "dark skin" with a height of "about 5'7"," and a weight of "about 165, 170" pounds. Kareem testified that her estimate of 5'7" was based upon the fact "he was about [her] height." Kareem stated that she was 5'7" and "that I could look that person straight in the face." She said her assailant wore ...