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).
In this appeal, the Court must determine whether the trial judge should have given the jury a cross-racial identification charge, called a Cromedy charge, tailored to address this "cross-ethnic" identification when the eyewitness victim is a non-Hispanic Caucasian and the defendant is a Hispanic Caucasian.
Defendant, Christopher Romero, was convicted of first-degree robbery and related offenses in connection with the mugging of Carmine Cavaliere. Cavaliere was attacked from behind by two men while walking home. One attacker retreated quickly, but the other remained and wrestled with Cavaliere for several minutes, chopping at Cavaliere's hand with a knife, cutting four tendons. Cavaliere described the attack as lasting anywhere from three to five minutes, during which his attacker was about six to eight inches away. He said that during a minute and a half of the attack he was able to see his attacker's face and that, when the outside light came on from the house one door down, he was able to get a good look at his attacker because they were face-to-face. The night of the mugging Cavaliere told investigating police that the man who attacked him with the knife was "Spanish," aged twenty to twenty-five, and had something wrapped around his head.
Four days later, after he was released from the hospital, Cavaliere elaborated on the description, adding that the man had dark hair and dark skin. Three days later, while driving down his street, Cavaliere saw Romero walking past. He immediately telephoned the police to report that he had just seen the man who had attacked and stabbed him. When the police arrived, Cavaliere described the clothing being worn by his alleged attacker that day. The officers and Cavaliere then canvassed the neighborhood in a police vehicle looking for the man Cavaliere had described. Unable to locate the person, the officers brought Cavaliere home. Fifteen or twenty minutes later, the officers returned and told him that in the back of their police vehicle they had someone who fit the description given earlier by Cavaliere. Cavaliere identified Romero.
Romero was charged with first-degree robbery, third-degree attempted theft, third-degree aggravated assault, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon. Romero requested a cross-racial identification charge. See State v. Cromedy, 158 N.J. 112 (1999) (establishing when a jury must receive instruction warning about potential shortcomings of cross-racial identification testimony). Because the witness-victim is a non-Hispanic Caucasian male and Romero is a Hispanic male, the trial court held a mini-charge conference to hear Romero's request, after which the court refused to give the Cromedy charge. In lieu of the Cromedy charge, the court instructed the jury consistent with the model charge on out-of-court identifications. The jury convicted Romero on all counts.
The Appellate Division rejected Romero's arguments that the failure to give a Cromedy charge deprived him of a fair trial and that the showup identification was impermissibly suggestive. This Court granted Romero's petition for certification.
HELD: The jury received ample instruction about the need to examine carefully the identification made by the eyewitness, and Romero was not denied a fair trial without a tailored cross-ethnic identification charge. The Court uses this opportunity to refine the out-of-court identification charge so that it will alert jurors in all eyewitness identification cases that such testimony requires close scrutiny.
1. In Cromedy, this Court approved the use of a cross-racial jury instruction when identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability. In that decision, the Court considered several studies that concluded that eyewitnesses are superior at identifying persons of their own race and have difficulty identifying members of another race. (pp. 9-10)
2. Cromedy focused plainly on the impact of race on eyewitness identifications. Ethnicity, or ethnic differences, was not the subject of Cromedy's compilation of studies of racial impact on identification. Romero argues that Cromedy's mandate should apply in the present setting, one he describes as involving a non-Hispanic Caucasian eyewitness and a Hispanic Caucasian defendant. Those identifying terms used by Romero would require an expansion of the Cromedy instruction to circumstances involving ethnic differences. Ethnicity generally, and Hispanic ethnicity specifically, is accepted as different from race. (pp. 10-12)
3. The charge fashioned in Cromedy was directed at cross-racial identification settings because of the convincing social science data demonstrating the potential unreliability of cross-racial identifications of African-American defendants specifically. Cross-ethnicity, on the other hand, has been described as difficult to define and apply with precision in an identification setting. Few studies have explored the ability of non-Hispanics reliably to identify Hispanics. At present, there is insufficient data to support the conclusion that, as a matter of due process, people of the same race but different ethnicity require a Cromedy instruction whenever they are identified by someone of a different ethnicity. Therefore, the trial court did not abuse its discretion in denying Romero's request for a Cromedy cross-racial identification charge, tailored to ethnicity, and no error was visited on Romero. (pp. 12-17)
4. In considering the implications of cross-ethnic identifications, the Court has contemplated the impact of eyewitness testimony generally. When the Court perceives, as here, that more might be done to advance the reliability of the criminal justice system, the Court's supervisory authority over the criminal courts enables the Court to act. The Court has examined its model jury charge on out-of-court identifications to determine whether it might stand further improvement. In light of the social science research noting the fallibility of eyewitness identifications, the Court directs that the model jury charge should underscore, for all jurors in all eyewitness identification cases, that eyewitness identification testimony requires close scrutiny and should not be accepted uncritically. The Court requires that additional language be included in the out-of-court identification charge. The Court refers this model jury charge to the Model Jury Charge Committee and instructs trial courts to utilize this new language while the model charge is being reviewed by the Committee. (pp. 17-22)
5. Romero also contends that he was subject to an impermissibly suggestive showup identification procedure. The identification procedure originated from the victim's own observation of someone he believed was his assailant. The police made no representations that Romero was the man who attacked Cavaliere, only that he matched Cavaliere's description. This showup was not impermissibly suggestive, and Cavaliere's identification of Romero was sufficiently reliable. (pp. 22-27)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and is REMANDED for proceedings consistent with this opinion.
JUSTICE ALBIN has filed a separate, CONCURRING opinion, in which JUSTICE LONG joins, to express the view that the Court has an obligation to discourage law enforcement from using highly suggestive identification techniques, such as showups, when there is no exigency, but understands the Court's reluctance to do so here.
CHIEF JUSTICE ZAZZALI and JUSTICES WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LAVECCHIA's opinion. JUSTICE ALBIN filed a separate concurring opinion, in which JUSTICE LONG joins.
The opinion of the court was delivered by: Justice LaVECCHIA
Defendant, Christopher Romero, was convicted of first-degree robbery and related offenses in connection with the mugging of Carmine Cavaliere. Identification was the pivotal issue in the case. Defendant, who is Hispanic, claimed that the victim, a Caucasian, misidentified him. Because of the importance of the identification testimony and the dearth of corroborating evidence to supplement the reliability of that identification, defendant asked the trial court to instruct the jury with a cross-racial identification charge tailored to address this "cross-ethnic" identification. See State v. Cromedy, 158 N.J. 112 (1999) (establishing when jury must receive instruction warning about potential shortcomings of cross-racial identification testimony). The court provided the jury with an instruction on identification testimony generally, but no special Cromedy charge was given.
In this appeal, we are asked whether it was reversible error for the court not to have given a Cromedy charge in this setting. We conclude that the jury received ample instruction about the need to examine carefully the identification made by Cavaliere, and, thus, defendant was not denied a fair trial without a tailored Cromedy charge. Social science research does not tie identification unreliability directly to ethnic differences in the same way that racial differences can affect identification reliability. That said, identification testimony is an area that warrants vigilant supervision. An eyewitness's identification carries significant impact in criminal cases. This appeal highlights the importance of the model charge that guides jurors in the assessment of the reliability of that powerful evidence. We use this opportunity to refine the charge so that it will alert jurors in all eyewitness identification cases that such testimony requires close scrutiny.
At about 9 p.m. on October 29, 2001, Cavaliere was attacked from behind by two men while walking home from a convenience store in Trenton. One attacker retreated quickly, but the other remained and wrestled with Cavaliere for several minutes, during which Cavaliere was stabbed. Cavaliere's trial testimony detailing the attack revealed the extent to which he could observe his attacker.
The night of the attack, Cavaliere first noticed defendant and another person while shopping in a neighborhood convenience store. At the time, he gave no thought to it -- seeing the men in the store meant nothing to him. While walking home, however, he was "jumped" from behind. The first attacker stabbed Cavaliere and placed him in a headlock. That person was later identified as defendant. The second punched Cavaliere in the face and ran away. The first attacker remained and continued to wrestle with Cavaliere. When Cavaliere managed to place his attacker in a headlock, the attacker began "chopping away at [Cavaliere's] hand" with a knife, cutting four tendons. The attacker then escaped Cavaliere's hold, got on top of him, and attempted to stab Cavaliere in the eye and throat. Fortunately, a light came on in the house next to where the men were struggling, and Cavaliere's attacker fled.
Cavaliere described the attack as lasting anywhere from three to five minutes, during which his attacker was about six to eight inches away. There were a "couple of street lights on that part of the street." He stated that during at least a minute and a half of the attack he was able to see his attacker's face and that, the moment the outside light came on from the house one door down, he was "able to get a good look at [his attacker] because [they] were face-to-face with each other." After the attacker fled, two people came out of the illuminated house and called for emergency assistance. Those people were identified later as defendant's parents.
The night of the mugging, Cavaliere told investigating police that the man who attacked him with the knife was "Spanish," aged twenty to twenty-five, and had something wrapped around his head. Four days later, after he was released from the hospital and had returned home, Cavaliere elaborated on that description to the police, adding that the man had dark hair and dark skin.
Three days later, while driving down his street, Cavaliere saw defendant walking past Cavaliere's home at about noon. Cavaliere testified that he stopped the car, took a good look at defendant's face, then entered his home and immediately telephoned the police to report that he had just seen the man who had attacked and stabbed him. When the responding officers arrived, Cavaliere described the clothing being worn by his alleged attacker that day: a brown cap,*fn1 a short-sleeved shirt and a pair of jeans. The officers and Cavaliere then canvassed the neighborhood in a police vehicle looking for the man Cavaliere had described.
Unable to locate the person, the officers brought Cavaliere home. Fifteen or twenty minutes later, the officers returned to Cavaliere's home and told him that in the back of their police vehicle they had someone who fit the description given earlier by Cavaliere. Cavaliere approached the car and looked at the man in the backseat for "about a minute, minute and a half." Cavaliere testified that he recognized defendant "right away" as the person who had attacked him, but that he took his time before identifying defendant because he wanted to be "100 percent sure." At the time of the identification, the police officers asked Cavaliere whether he "was ...