January 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAHEEM WASHINGTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. 05-05-0626.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2007
Before Judges Wefing and Lyons.
Tried to a jury, defendant was convicted of third-degree conspiracy to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), 5(b)(3); and the disorderly persons offense of resisting arrest as a lesser- included offense of third-degree resisting arrest, N.J.S.A. 29- 2(a). He was found not guilty of distribution of a controlled dangerous substance N.J.S.A. 2C:35-5(a)(1), 5(b)(3); distribution within one thousand feet of school property, N.J.S.A. 2C:35-7; and aggravated assault, N.J.S.A. 2C:12- 1(b)(5)(a). He was sentenced to five years in prison, with a two-and-one-half-year period of parole ineligibility. In addition, monetary penalties and fines were assessed. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On appeal, defendant raises the following arguments:
POINT ONE WHERE THERE WAS NO EVIDENCE TO CORROBORATE OFFICER REGALADO'S IN-COURT IDENTIFICATION OF WASHINGTON, THE TRIAL JUDGE'S IDENTIFICATION CHARGE, WHICH ERRONEOUSLY INDICATED THAT REGALADO HAD MADE AN OUT-OF-COURT IDENTIFICATION AND WHICH FAILED TO ADDRESS THE CROSS-RACIAL NATURE OF THE IDENTIFICATION, DEPRIVED WASHINGTON OF DUE PROCESS OF LAW AND A FAIR TRIAL. ACCORDINGLY, WASHINGTON'S CONVICTION FOR CONSPIRACY TO DISTRIBUTE DRUGS MUST BE REVERSED.
(Partially Raised Below)
A. By Misleading The Jury Into Believing That Regalado Had Made An Out-Of-Court Identification Of Washington Immediately After The Incident, The Trial Judge Unfairly Bolstered The Reliability of Regalado's In-Court Identification, Made Nearly 12 Months After The Incident. (Not Raised Below)
B. The Judge's Ruling That A Cross-Racial Identification Was Unnecessary Because The Identifying Witness Was A Police Officer Was Erroneous.
POINT TWO REMARKS MADE BY THE PROSECUTOR IN HER SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (Not Raised Below)
Defendant was arrested on February 1, 2005, in Jersey City in connection with a narcotics surveillance operation conducted by members of the Jersey City Police Department. Police Officer Ray Regalado was the surveillance operator. He parked his unmarked vehicle at approximately 11:30 A.M. near the intersection of Martin Luther King Drive and Orient Avenue. The weather was clear and dry. From his vantage point, he observed three African-American males standing in front of 331 Martin Luther King Drive, thirty to forty feet away from where he was parked. One of the three men, later identified as James Bowens, would flag down cars driving past. One of the cars stopped, and the driver, later identified as Ray Pickett, spoke to Bowens who pointed out his two compatriots standing nearby. Pickett got out of the car and went to the two men, one of whom, identified as defendant, handed two packets to Pickett who, in turn, gave money to defendant's companion, identified as Tyrone Doctor. Pickett returned to his car and left the area. Officer Regalado radioed his perimeter officers, and Pickett was stopped by Officers Chowanec and Heger. A search of Pickett turned up two packets of heroin, containing the logo "Cream." Pickett was placed under arrest.
The three men involved in the sale began to walk away from the scene, defendant Washington on one side of the street, Bowens and Doctor on the other. Officer Regalado radioed a description of the three and their path of travel to members of the perimeter team. Officers Chowanec and Heger responded and came upon defendant Washington who ran away. Officer Heger pursued him through several alleys and yards and eventually apprehended him. A search turned up cash in the sum of $384 but no drugs.
While Officer Heger was chasing defendant, Officer Chowanec stayed near the car with Mr. Pickett. He then observed another individual walking away. Officer Chowanec identified himself as a police officer and asked the man to stop. In response, that man took his hand out of his pocket and dropped two bags of marijuana. Officer Chowanec placed him under arrest as well. There was no testimony linking that individual to the transaction Officer Regalado had earlier observed.
Officer Regalado also requested other members of the team to return to 331 Martin Luther King Drive and investigate the area. In doing so Officers Howard and Doran came upon three rubber bands, plastic wrap, and a torn heroin bag with the logo "Cream."
Although Officer Regalado identified defendant in the court room, there was no testimony that he identified defendant on the scene after his arrest. In addition, although there was testimony both from Officer Regalado and members of the perimeter team that he had radioed to them a description of the individuals he had observed, there was no testimony as to the substantive details of that description. In his charge to the jury, the trial court gave the following instruction to the jury on the issue of identification:
The defendant as part of general denial of guilt contends that the state has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed this alleged offense. The burden of proving the identity of the person who committed the crime is always on the state like all the other responsibilities are.
For you to find this defendant guilty, the state must prove beyond a reasonable doubt that the defendant is the person who committed the crime. The defendant has neither the burden nor the duty to show that if a crime were committed it was committed by somebody else or to prove the identity of that other person.
You must determine therefore not only whether the state has proved each and every essential element of the offense charged beyond a reasonable doubt, but also whether the state has proved beyond a reasonable doubt that the defendant is the person who has committed it. The mere presence at or near a scene of where an alleged drug transaction for example takes place is not enough. The defendant need not only be there physically, he has to be there as the actor or the perpetrator or the seller, that dispenses or distributes.
Mere presence is not enough. The state has presented the testimony of Officer Regalado. You'll recall that he identified the person -- the defendant in court as the person who committed the dispensing and distributing of the controlled dangerous substance. The state presented the testimony that the witness identified him as he was sitting in the stand observing this alleged transaction.
According to the witness, his identification of the defendant was based upon observations and perceptions that he made at the time the offense was being committed on Martin Luther King Drive. It is your function to determine whether the witness' identification of the defendant is reliable and believable or whether it is based on mistake or for any reason is not worthy of belief.
You must decide whether it is sufficiently reliable evidence upon which to conclude that the defendant is the person who committed the offense. In evaluating the identification, you should consider the observations and perceptions on which the identification was based, the witness' ability to make those observations and perceptions.
If you determine that the out of court identification is not reliable, you may still consider the witness' in court identification of the defendant if you find it to be reliable.
However, the in court identification results -- must result in the witness' observations or perceptions of the perpetrator during the commission of the offense rather than being the product of the person sitting -- just merely sitting at the defense table for example. So the officer identified him out of court and said in court that that's the person he identified out of court. That in court identification has to be the result of what he saw out of court.
To decide whether it's reliable testimony as to the identification upon which to conclude the defendant is the person who committed the offense, you should evaluate the testimony of the witness in light of the factors for considering credibility that I already explained to you.
In addition you may consider the witness' opportunity to view the person who committed the offense at the time the offense was being allegedly committed.
The witness' degree of attention on the perpetrator when he observed the crime being committed, the accuracy of any description that he gave prior to it. The degree of certainty expressed by the witness in making the identification, the length of time between his observations and the identification, discrepancies or inconsistencies if any in the identification. The circumstances under which the out of court identification was made, the time of day, the place, where he was, how far away. The positions, the distances. All of those things you have to take into consideration in determining whether or not the identification made on the street is reliable.
And consider any other factors based on the evidence or lack of evidence in the case which you consider relevant to your determination whether the identifications were reliable.
Defendant made no objection to this charge but now argues that its references to Officer Regalado having made an out-of-court identification of defendant unfairly strengthened the officer's testimony in court identifying defendant as the man he observed selling heroin in front of 331 Martin Luther King Drive on February 1, 2006.
While we agree that it would have been preferable if the court's charge had not specifically referred to an out-of-court identification, we do not consider its inclusion to be plain error. R. 2:10-2. Defendant's trial was brief, and we have no reason to think that the jury was unable to remember the details of the testimony it had heard shortly before. This is particularly so in light of defense counsel's summation, which stressed to the jury the weaknesses of the prosecution's case in this respect. The court's charge, moreover, specified to the jury the various factors it should consider when assessing the reliability, or lack of reliability, of Officer Regalado's in- court identification of defendant.
Defendant also argues that the trial court erred when it ruled that it would not give a cross-racial identification charge. State v. Cromedy, 158 N.J. 112 (1999). The record does not reflect that such a charge was specifically requested.
Indeed, the record does not even reflect the racial identity of defendant or Officer Regalado. The Court in Cromedy noted that "[t]he simple fact pattern of a white victim of a violent crime at the hands of a black assailant would not automatically give rise to the need for a cross-racial identification charge. More is required." Id. at 132. Here, Officer Regalado testified as to his years of experience in conducting narcotics investigations; he made his observations on a clear, dry morning, with no obstructions to his vision and with no emotional stress or fear to inhibit his powers of observation.
The trial court's ruling was fully justified by the record. Finally, we reject defendant's argument that the prosecutor made improper comments in his summation. There was no objection at trial, thus justifying an inference that no unfair prejudice was perceived at the time. State v. Frost, 158 N.J. 76, 84 (1999). The remarks about which defendant now complains, moreover, were made in response to defense counsel's attack in her summation on the credibility of the police officers. Defendant's conviction is affirmed.
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