January 22, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment Nos. 04-05-0491, 04-05-0492.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 13, 2007
Before Judges C.S. Fisher and C.L. Miniman.
Defendant Ronald Williams appeals from his conviction of multiple offenses following a jury trial and from the sentences imposed thereon. We affirm the multiple convictions but remand for resentencing in accordance with State v. Pierce, 188 N.J. 155 (2006), which was decided after defendant was sentenced.
Defendant was charged in an indictment with first-degree armed robbery contrary to N.J.S.A. 2C:15-1, second-degree robbery contrary to N.J.S.A. 2C:15-1, third-degree aggravated assault contrary to N.J.S.A. 2C:12-1(b)(2), second-degree possession of a firearm for an unlawful purpose contrary to N.J.S.A. 2C:39-4(a), third-degree unlawful possession of a firearm contrary to N.J.S.A. 2C:39-5(b), third-degree receiving a stolen automobile contrary to N.J.S.A. 2C:20-7 and third-degree receiving a stolen firearm contrary to N.J.S.A. 2C:20-7. Defendant was also charged in a second indictment with second-degree certain persons not to have weapons contrary to N.J.S.A. 2C:39-7(b). On the first indictment the defendant was found guilty of first-degree armed robbery, third-degree aggravated assault, third-degree receiving a stolen gun and the two weapons possessions. He was found not guilty of possessing a stolen motor vehicle but guilty of joyriding, a lesser-included offense. On the second indictment, defendant submitted to a bench trial on the certain-persons offense and was found guilty.
At about 10:00 p.m. on September 3, 2003, two men walked onto the property of an Amoco gas station located on Route 22 in Union. They both stepped into the attendants' booth where Orhan Simsek, who is Turkish, was sitting during his shift as a gas station attendant. Once in the booth, the men demanded that Simsek give them money. Then one of the men, who Simsek later identified as defendant, hit Simsek on the head with a hard object. Simsek fell to the ground and subsequently gave the men approximately $300 that was in his pocket. After the men walked toward the car dealership next door, Simsek dialed "911."
Detective Brian Wilson, an off-duty black officer from the Hillside Police Department, was driving his own car in the vicinity of the gas station. He observed a black male, who he later identified as defendant, pull a ski mask over his face and reach under his shirt as though he was pulling out a weapon as he entered the attendant's booth, causing Wilson to believe that something suspicious was occurring. As a result, he pulled into the parking lot of a car dealership next door to the gas station and parked by the curb adjacent to the gas station to observe what was happening. He then saw the two men flee from the attendant's booth. The two men ran past Wilson's vehicle and as defendant was running, he took off the mask. One man was wearing a white tee shirt and a black jacket and the other was wearing a grey shirt and dark pants. Wilson got a good look at their faces and made eye contact with both. The men ran into the parking lot of the car dealership and got into the back seat of a Nissan Altima, which then drove away. Wilson called the Hillside Police Department to report the robbery and followed the Altima. While Wilson was in pursuit he described the car and read the license plate to the Hillside dispatcher. Wilson was joined in his pursuit of the Altima by police from both Union and Hillside.
The pursuit ended about two miles from the Amoco station when the Altima crashed on Pennsylvania Avenue, hitting two police vehicles and a parked car. Two of the four people in the Nissan, the driver and one of the men in the back seat, fled the vehicle but were apprehended by police officers at the scene. Defendant remained in the back seat of the disabled vehicle. He was pulled from the car and immediately arrested. Another person, a female, remained in the front seat. At the scene of the arrest, Wilson identified the man wearing the mask. He also identified the co-defendant at the scene of the arrest as the other man who ran from the attendant's booth. The money was recovered on the ground where the co-defendant was captured; a red, white and blue baseball cap worn by the co-defendant and the mask worn by defendant were found in the car; and a loaded 9mm Glock handgun was found in the street next to the Nissan.
Meanwhile, the Union police arrived at the gas station and Detective William Fuentes spoke with Simsek, who gave him a detailed description of his assailants. He said one was heavy-set, shorter and was wearing a red-and-white hat and a dark blue jacket.*fn1 Simsek described the other person as a taller and thinner black male who was not wearing a hat but was wearing a mask partially covering his mouth. Later, in the statement he gave to the police, Simsek described the second man as "tall, Black, 170 pounds, [and] about, 25 to 30 years old" with short curly hair.
Because Simsek had suffered a head wound in the incident, an ambulance arrived at the gas station to take him to the hospital. On the way, the police took a detour to the scene of the arrest and asked Simsek to identify the perpetrators. Simsek was not told that the people he was viewing were under arrest and none of the occupants of the Altima were handcuffed when they were presented to Simsek for identification. However, Simsek was in a position to see the occupants of the Altima being taken out of squad cars, having handcuffs removed, and being escorted toward him for identification. The police escorted the three male passengers of the Altima one at a time over to Simsek at the intersection of Long and Pennsylvania Avenues. Simsek, like the police officer who observed the crime and followed the vehicle, was certain in his identification of defendant as the gun-wielding assailant. Simsek did not recognize the driver of the Altima, Demetrice Love, and said that he was definitely not involved. Simsek believed that Rosebrough was the second robber who entered the attendants' booth and took the money but he was not entirely certain because he was not wearing the hat or jacket. The identification procedure took place about fifteen minutes after the robbery.
Defendant filed a motion to suppress the victim's out-of-court identification of him. The judge conducted a Wade*fn2 hearing on June 14, 2005, prior to jury selection. He denied defendant's motion to exclude the identification, finding Detective Fuentes' testimony at the Wade hearing to be credible. The judge found that the police did not suggest anything to the witness about the identifications. The judge concluded from case law that show-ups are not usually impermissibly suggestive because they are generally close in time to the crime, are "generally reliable" and "accurate" and "facilitate fast and effective police action." He concluded that allowing Simsek to see defendants being removed from police vehicles and having their handcuffs removed was not impermissibly suggestive. As a result, the judge determined that defendants had not met their burden of proof.
When the matter was reached for trial, the parties stipulated that the Altima had been stolen in Newark on August 21, 2003, and it remained stolen on September 3, 2003. They also stipulated that the 9mm Glock handgun had been stolen from Upper Darby, Pennsylvania on or about April 20, 2003, and the gun remained stolen on September 3, 2003. They also stipulated that the gun was an operable firearm on September 3, 2003. Finally, they stipulated that Police Officer Donald Cook dusted the fifteen $20 bills for fingerprints but did not find any.
Defendant testified at trial that, on the date of the incident, he was at a bus stop in front of his mother's and grandmother's house in Newark, when three people he knew drove up in an Altima and offered him a ride home to Hillside. He accepted and got into the back seat of the car. The driver indicated that he wanted to stop to buy cigarettes and pulled into a parking lot adjacent to a gas station. Defendant testified that the two other male passengers got out of the car, and he remained in the car with the female passenger. Defendant testified that a few minutes later the two returned and they drove away.
Defendant further testified that he first noticed the police when a police vehicle began to follow the Altima with its overhead lights on. The driver of the Altima accelerated. Defendant claimed that he did not see a mask, gun, or anything being thrown out of the window of the car. The Altima finally stopped when it collided with a police vehicle and became disabled. Defendant testified that, while some of the other people in the car tried to run away, he stayed in the car and put his hands up. Defendant testified that he did not even know a robbery had taken place. Thus, defendant's counsel argued that defendant was mistakenly identified as one of the perpetrators.
Defendant raises the following issues on appeal:
POINT I - THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE OUT-OF-COURT IDENTIFCATION OF THE DEFENDANT BY MR. SIMSEK WAS UNRELIABLE SINCE IT WAS THE RESULT OF A SUGGESTIVE "ONE PERSON SHOW-UP" PROCEDURE THEREBY IMPERMISSIBLY TAINTING THE SUBSEQUENT IN-COURT IDENTIFICATION.
POINT II - THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE DEFENDANT'S MOTION FOR A CROSS-RACIAL IDENTIFICATION CHARGE PURSUANT TO STATE V. CROMEDY.
POINT III - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR IN SUMMATION. (Not Raised Below)
POINT IV - THE AGGREGATE CUSTODIAL SENTENCE OF 311/2 YEARS WITH 21 YEARS, 3 MONTHS AND 1 DAY OF PAROLE INELIGIBILITY IMPOSED ON THE DEFENDANT'S CONVICTIONS WAS MANIFESTLY EXCESSIVE, REPRESENTED AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION, AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE V. NATALE AS EXPLAINED IN STATE V. PIERCE.
(A) THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.
(B) IMPOSITION OF A BASE EXTENDED CUSTODIAL TERM OF 25 YEARS ON THE DEFENDANT'S CONVICTION FOR FIRST DEGREE ROBBERY WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S RIGHTS UNDER STATE V. NATALE AS EXPLAINED IN STATE V. PIERCE.
(C) THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE 5 YEAR SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR RECEIVING STOLEN PROPERTY ON SIX AND THE DEFENDANT'S 18 MONTH SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR JOYRIDING ON COUNT SEVEN CONSECUTIVE TO THE SENTENCE IMPOSED ON COUNT ONE FOR ROBBERY.
With respect to the admissibility of Simsek's out-of-court identification, a trial judge must find the facts following a Wade hearing and apply the law governing out-of-court identifications to those facts. "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made [by the trial court] could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162.
Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal. See State v. Sailor, 355 N.J. Super. 315, 320 (App. Div. 2001) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference")); see also State v. Brown, 118 N.J. 595, 604 (1990). [State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).]
Defendant argues that "the out-of-court identification . . . made by Simsek was unduly suggestive and tainted [Simsek's] subsequent in-court identification." As a result, he argues that "the trial court abused its discretion and deprived [him] of his right to a fair trial in admitting the identification." Defendant urges that the identification was suggestive because it was obvious under the circumstances to Simsek that defendant was under arrest and because Simsek identified defendant "in the middle of a scene in which . . . four damaged vehicles, at least two of which were police cars, were visible."
The State, on the other hand, argues that "[a] pretrial identification should not be ruled inadmissible unless it was the product of police procedures so suggestive as to give rise to a very substantial likelihood of irreparable misidentification." The State points out that Simsek had an unobstructed, clear, close-up view of defendant during the commission of the crime, provided a description of the perpetrator at the scene, and excluded Love as a participant at the show-up identification. The State stresses that none of the people presented in the show-up were in handcuffs and that the show-up occurred shortly after the time of the incident when "Simsek was alert and aware."
The purpose of a Wade hearing is to ensure that the defendant's due process rights are protected and unreliable, suggestive identifications are to be excluded from evidence. Wade, supra, 388 U.S. at 219, 87 S.Ct. at 1928, 18 L.Ed. 2d at 1153; State v. James, 144 N.J. 538, 563 (1996). Because "eyewitness evidence is inherently suspect and suggestive procedures may prejudicially affect the ultimate identification," a two-prong test has been prescribed to determine whether the identification is admissible. State v. Madison, 109 N.J. 223, 232 (1988) (following the United States Supreme Court's analysis in deciding whether identifications are admissible). In evaluating the evidence, a court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence. "Reliability is the linchpin in determining the admissibility of identification testimony." [Ibid. (citations omitted).]
When the trial judge concludes that an identification procedure was impermissibly suggestive, it must determine the reliability of the identification under the totality of the circumstances. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1973, 18 L.Ed. 2d 1199, 1206 (1967). In deciding the issue of reliability, the following factors should be considered:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977).]
"The findings of the trial judge as to reliability of the witnesses are entitled to considerable weight." State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003) (citing State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973); State v. Scott, 236 N.J. Super. 264, 267 (App. Div. 1989)).
Our Supreme Court has concluded that "one-on-one showups are inherently suggestive . . . because the victim can only choose from one person, and, generally, that person is in police custody." State v. Herrera, 187 N.J. 493, 504 (2006) (declining to modify the federal model for determining admissibility on the record before the Court).*fn3 However, "standing alone a showup is not so impermissibly suggestive as to warrant proceeding to the second step." Ibid. (citing State v. Wilkerson, 60 N.J. 452, 461 (1972)).
We have permitted on or near-the-scene identifications because "[t]hey are likely to be accurate, taking place, as they do, before memory has faded [and because]
[t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." [Ibid. (quoting Wilkerson, supra, 60 N.J. at 461).]
Nonetheless, "only a little more is required in a showup to tip the scale toward impermissibly suggestive." Ibid. Where victims have been told that the police believe they have apprehended the perpetrator, the scale has been tipped. Id. at 504-05.
The Herrera Court found that the show-up identification of defendant was impermissibly suggestive where the police first drove the victim to the police station and then to the hospital for the show-up, telling him that they had located his car with somebody in it and wanted him to go with them to identify the person. Id. at 506. Then he was told that the person was in the hospital and they were going to take him there to look at the occupant of his car. Ibid. The police's comments made the show-up impermissibly suggestive "because they may have influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit." Ibid. (citation omitted). However, the court ultimately held that the show-up was reliable enough to allow the identification to be presented to the jury because the defendant was known to the victim by sight from previous observations and he had a sufficient opportunity to observe him during the attack. Id. at 507. Furthermore, the victim quickly identified defendant at the hospital and the show-up took place within a reasonable time, approximately five hours between the crime and the show-up. Id. at 508-09.
Although show-up identifications are inherently suggestive, the trial judge concluded that Simsek's identification of defendant was not impermissibly suggestive because the police made no comments to Simsek other than to say that they had some suspects and wanted to know if he could identify them. The police did not tell Simsek that defendant was under arrest. Finally, the fact that there were cars that had been in an accident was not impermissibly suggestive because the record does not indicate that Simsek ever saw the perpetrators' vehicle and, therefore, its presence at the scene could not have been impermissibly suggestive.
Even if the show-up was impermissibly suggestive, there were more than sufficient indicia of reliability justifying the admissibility of the show-up identification. The identification occurred fifteen minutes after the robbery and when Simsek saw defendant at the show-up, he "was certain that [defendant] was the person that struck him, and robbed him." Simsek also provided a description to the police that matched the description of defendant, including the discovery of a ski mask that was found in the back seat of the Altima. Even though Simsek stated that defendant was wearing a mask that partially covered his face during the robbery, the person who entered the booth at the gas station was standing very close to Simsek, which allowed Simsek to see his other features with great clarity. Additionally, the police collectively never lost sight of defendant and the Altima from the moment the crime was perpetrated until defendant was apprehended and Wilson also identified defendant as the gun-toting perpetrator. Thus, the totality of the circumstances compels a conclusion that the identification was reliable and properly admitted into evidence.
Defendant next contends that he was entitled to a cross-racial identification charge which he sought at the time of trial because "the central, if not only issue, in the case" is the identification of him. He predicates the entitlement to this charge on that fact that Simsek, who is Turkish and presumably Caucasian, is a different race than defendant, who is African American. Defendant asserts that the judge was bound to give the instruction if he requested it. He also asserts that the trial judge improperly interpreted the law and relied upon the identification of defendant by Wilson, who is the same race as defendant, in order to justify denying defendant's request for this charge. Defendant contends that Wilson's same-race identification does not abrogate the need for a cross-racial identification charge where the victim is a member of a different race.
In response to this claim, the State correctly points out that a cross-racial identification charge is not required where the cross-racial identification is corroborated by other evidence giving it independent reliability. State v. Cromedy, 158 N.J. 112, 132 (1999). Generally, "[a] cross-racial identification occurs when an eyewitness is asked to identify a person of another race." Id. at 120. Trial judges should deliver an instruction about cross-racial identifications in situations "only 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." Id. at 132 (emphasis added).
In State v. Ways, the defendant's identification was "critical to the outcome of the case" and, the Court held that a cross-racial instruction was required because there was no corroborating, reliable evidence to support the identification. 180 N.J. 171, 198 (2004). The only other evidence that the State offered was that of "recanting witnesses . . . whose credibility and reliability were strongly challenged." Id. at 198-99. On the other hand, in State v. Harris, we held that a cross-racial identification instruction was not required because the identification was not a critical issue to the case, and sufficient corroborating evidence was also present. 357 N.J. Super. 532, 538 (App. Div. 2003). There, the eyewitness was white and the defendant was black. Ibid. The corroborating evidence included identification by another witness who was the same race as the defendant and who saw the defendant in the area. Ibid. Also corroborating the identification was the fact that the defendant was wearing a jacket that the witnesses had described shortly after the time of the crime. Ibid.
"[A] request for jury instructions shall be granted when those instructions relate to 'essential and fundamental issues and those dealing with substantially material points.'" State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003) (citing State v. Green, 86 N.J. 281, 290 (1981)). A court must determine whether the request is proper before granting a request because "[i]t is not incumbent upon the trial court to give any requested instruction which is an erroneous statement of the law or is otherwise improper under the facts of the case." Green, supra, 86 N.J. at 291 (citation omitted). Where a court does not include a properly requested instruction in the jury charge, it is "prejudicial error when the subject matter is fundamental and essential or is substantially material to the trial. In any other situation the objecting party must establish an abuse of discretion." Ibid.
We are satisfied that the request for a cross-racial identification charge was properly denied. As in Harris the cross-racial identification by Simsek was corroborated by Wilson, an eyewitness of the same race as defendant, defendant was wearing the same type of clothing Simsek described, there was a ski mask in the back seat of the Altima where defendant had been sitting when he was arrested, the gun he was toting was on the street beside the Altima, and he was pursued by the Hillside and Union police from the scene of the crime to the scene of the arrest. No cross-racial identification charge was required under the facts of this case.
Defendant contends that the twenty-five-year sentence imposed on his conviction of first-degree robbery was manifestly excessive, an abuse of discretion, and contrary to the requirements of State v. Pierce, 188 N.J. 155 (2006). The State concedes that this matter must be remanded for resentencing under Pierce and, thus, we do not need to discuss this issue.
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are (1) that defendant was deprived of a fair trial by comments of the prosecutor during summation, (2) that the judge abused his discretion in sentencing defendant to an extended term as a persistent offender, and (3) that the judge abused his discretion when he imposed consecutive sentences.
Accordingly, we affirm defendant's conviction on all counts and affirm the imposition of an extended term and consecutive sentences.
Affirmed in part; remanded for resentencing in accordance with this opinion.