On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-09-3383.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Stern, C.S. Fisher and C.L. Miniman.
In this appeal, we consider, among other things, the trial judge's denial of defendant's motion to suppress an out-of-court identification. Because the Attorney General's "Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures" (the Guidelines)*fn1 were materially breached by the investigating officers' intrusion into an eyewitness's examination of a photographic array, we conclude that a presumption of impermissible suggestiveness must be imposed, and a new Wade*fn2 hearing conducted.
The jury heard testimony that in the early morning hours of January 1, 2003, Rodney Harper and James Womble were smoking crack cocaine at Womble's apartment on Kaighn Avenue in Camden. At approximately 2:45 a.m., there was a knock at the door, which Womble answered. At the door were two men, one of whom was co-defendant Gregory Clark, known in the neighborhood as "Bubbles." Womble later identified defendant as the other.
According to Womble, defendant pointed a gun at him, saying, "[d]on't move, you're not involved." Clark, according to Womble, went into another room and began arguing with Harper about money. Womble heard Harper say, "do what you gotta do," following which Womble heard a gunshot. Womble testified that he entered the other room, where Harper sat bleeding from the chest; Clark was still present. Womble offered to get the money that Harper apparently owed to Clark, and pleaded with Clark not to shoot Harper again. Defendant and Clark departed, and, according to Womble, Clark said to him as he left: "[d]on't rat me out, I know where you live."
Defendant was charged, along with co-defendant Clark,*fn3 with the first-degree murder of Harper on January 1, 2003, N.J.S.A. 2C:11-3(a)(1) and (2), as well as: second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree being a person not entitled to possess a weapon, N.J.S.A. 2C:39-7(b).
Defendant moved to suppress a statement he gave to the police after he was arrested on January 17, 2003. Following a hearing, this motion was denied. The trial judge also conducted a Wade hearing and determined that evidence of Womble's out-of-court identification of defendant was admissible.
At the conclusion of the trial, defendant was acquitted of murder and aggravated manslaughter, but convicted of second-degree reckless manslaughter and the other remaining charges. Following all appropriate mergers, the trial judge sentenced defendant to: a seven-year prison term, with an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the reckless manslaughter conviction; a four-year prison term on the unlawful possession of a weapon conviction to run consecutively to the term imposed on the manslaughter conviction; and a nine-month prison term on the persons not permitted to be in possession of a weapon conviction, to run concurrently with the other weapon conviction.
Defendant appealed. In the brief filed by his appellate counsel, defendant raised the following arguments:
I. THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S] MOTION TO SUPPRESS HIS STATEMENT, BECAUSE HIS WAIVER OF HIS RIGHT TO REMAIN SILENT WAS NOT KNOWING AND INTELLIGENT DUE TO THE STATE'S FAILURE TO INFORM HIM THAT A WARRANT FOR THE MURDER OF RODNEY HARPER HAD BEEN ISSUED AGAINST HIM.
II. THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY, SUA SPONTE, WITH SELF-DEFENSE (Not Raised Below).
III. THE TRIAL COURT ERRED BY DENYING [DEFENDANT'S] MOTION TO SUPPRESS THE EYEWITNESS' IDENTIFICATION, BECAUSE THE PRE-TRIAL IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE, WHICH CAUSED A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.
IV. THE SENTENCE IMPOSED UPON [DEFENDANT] IS EXCESSIVE.
Defendant also filed a pro se brief in which he raised the following arguments, which we have renumbered:
V. DEFENDANT CONTENDS THE STATE VIOLATED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT[S] AND COMMITTED PREJUDICIAL ERROR BY DENYING HIM [THE] RIGHT TO CONFRONT WITNESSES AGAINST HIM . . . WHICH CREATED [OR] RESULTED IN UNDUE PREJUDICE AGAINST HIM.
VI. DEFENDANT CONTENDS THE STATE VIOLATED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT[S] BY NOT ALLOWING RELIEF FROM PREJUDICIAL JOINDER IN WHICH CO-DEFENDANT['S] STATEMENT WAS INADMISSIBLE IN [THE] JOINT TRIAL VIOLATING DEFENDANT['S] RIGHT TO FAIR TRIAL.
VII. DEFENDANT CONTENDS THAT THE STATE COMMITTED PROSECUTOR[IAL] MISCONDUCT BY POINTING AND CALLING [DEFENDANT] A LIAR IN [THE] PROSECUTOR['S] SUMMATION TO THE JURY IN WHICH THERE WAS NO EVIDENCE . . . TO [SUPPORT] THIS BASELESS ACCUSATION ...