On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Supreme 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 Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In these cases, which are consolidated for purposes of the opinion, the issues are: (1) whether the trial court should have excluded the out-of-court and in-court identifications of defendants Ibn Adams and James Comer; (2) whether the trial court committed plain error in failing to instruct the jury on how to consider the testimony and guilty plea of co-defendant Dexter Harrison; and (3) whether defendants' sentences violated the principles of State v. Natale, 184 N.J. 458 (2005).
On April 17, 2000, Adams, Comer, and Harrison committed several armed robberies, one of which resulted in the shooting death of George Paul. They were apprehended at Tullo's Truck Stop in Kearny, where they had pushed their stolen white Honda Civic after it ran out of gas. A search of the suspects and the Honda revealed incriminating evidence. At police headquarters, Harrison admitted that they had committed two robberies in East Orange, and that he had left his Nissan parked on the street. Police recovered a snatch bar, a book bag, boots and a jacket from Harrison's Nissan. Based on his statement, a detective retrieved a loaded .25 caliber handgun from the truck stop bathroom. Various victims met with the police and identified photographs of the defendants and items of their personal property. Adams and Comer were charged with felony murder, conspiracy, robbery, and several weapons offenses. Harrison was charged with similar offenses. Adams also was charged with first-degree murder. Harrison pled guilty to various charges in exchange for a recommended sentence of twenty years, which could be lowered depending on his testimony against Adams and Comer.
Prior to trial, Adams and Comer moved to suppress the out-of-court identifications. At the suppression hearing, Detective David Montgomery and Detective Tom Wright testified on behalf of the State. Detective Montgomery testified that on April 18, 2000, he showed Dinis Sachdeva, the gas station attendant, single Polaroid photographs of the three defendants. Sachdeva immediately identified Comer and Harrison, but could not identify Adams. Detective Montgomery showed Sachdeva individual photographs because he had just identified defendants at the scene and the police wanted to take a statement from him. Detective Montgomery also interviewed Tassandra Wright, who stated that her paycheck was stolen from her at gunpoint. He showed her the same single photographs of the suspects. She identified Adams as the man who stole her paycheck from the passenger side of her vehicle, Comer as the man who approached her driver's side window with a gun, and Harrison as the driver of the Honda Civic.
Detective Wright testified that on April 20, 2000, he showed Deru Abernathy fifteen to twenty pictures, one at a time, telling him that the people pictured may be responsible for robbing Abernathy. Abernathy identified Adams and Comer as passengers and Harrison as the driver. Detective Wright stated that he did not have a proper photo array, which would have included men more similar to the suspects, but he was under time constraints to obtain identifications so charges could be filed. Detective Wright discarded all photos except for the three that Abernathy selected. On April 20, Detective Wright also met with Allyson Attabola, showing her the three single photos of defendants. She identified Adams and Comer as passengers and Harrison as the third man at the scene of the robbery against her. Detective Wright acknowledged deviating from standard identification procedures. The trial court denied the motions to suppress the identifications, finding that the process was suggestive but did not taint the out-of-court identifications to such a degree that defendants were denied due process of law.
At trial, the State introduced evidence that around 11:30 p.m. on April 17, 2000, Abernathy was in his car when he saw a blue Nissan pass by, stop, and then reverse until it was beside his car. Two occupants aimed guns at him, forced him from his car, and took several of his things. One of them held a nine-millimeter and the other a .380 handgun. After they left, Abernathy called the police. He also called his cellular number, and one of the assailants answered. A man told him "we could have got you." Abernathy identified Comer as the front seat passenger with a gun and Adams as the back seat passenger who approached with a gun. He also testified that he had previously made out-of-court identifications of them.
The same night, George Paul was shot to death in East Orange. Harrison was the only eyewitness to the shooting presented by the State. The police recovered Paul's wallet and a spent nine-millimeter shell casing at the scene.
Attabola testified that around 2:00 a.m. on April 18, 2000, she parked her car near her East Orange home. As she crossed the street, a white car stopped and two men jumped out. Adams pointed a gun at her, searched her pockets and took her bookbag containing some belongings. She also testified that she made out-of-court identifications of Adams and Comer.
Tassandra Wright testified that around 3:00 a.m., she was driving home on Routes 1 and 9 in Kearny. A white Honda Civic cut her off and then stopped beside her at three red lights, allowing her to see the men inside. Later, while parking near her Jersey City home, the white car driven by Harrison crashed into her car. Comer tapped on her window with a gun and demanded money. Adams entered her front passenger door and took her paycheck and identification. When the men left, she called police. During her interview that day, she identified the men and specified the role each played in the crime.
Sachdeva, the truck stop attendant, testified that he was working around 4:00 a.m. when he observed three men pushing a white Honda Civic into the station. He became suspicious when one of them asked for diesel fuel for the gas-fueled car. A truck driver overheard the conversation, became suspicious, and called police. Responding officers noticed that the Honda's ignition was missing. The three men denied any knowledge of the car. Harrison dropped the bookbag he was carrying and Adams and Comer walked into the bathroom. In the bookbag, the police found a loaded .380 handgun, a cell phone, women's clothing, and other items. The police arrested the three men and searched them, recovering several cell phones, a gold watch, gold chains, a jewelry charm, a paycheck made out to Tassandra Wright, and an identification card in the same name. At headquarters, Harrison stated that the three defendants had committed two robberies in East Orange and that they had hidden a loaded .25 caliber handgun in the bathroom of the gas station.
Harrison, testifying for the State, acknowledged that he pled guilty and agreed to testify against Adams and Comer in exchange for a twenty-year prison sentence. He stated that the three of them decided to rob some people. Harrison had a .380 handgun, while Adams had a nine-millimeter and Comer had a .25 handgun. He said they robbed Abernathy in East Orange, then drove to where Adams and Comer robbed Paul. Harrison testified that he heard a gunshot when Adams was searching Paul's pockets, and Adams said he shot Paul because he had no money. Harrison no longer wanted to use his Nissan, so they stole a white Honda Civic using a snatch bar. Harrison parked his Nissan and left several stolen items in it. They then robbed Attabola in East Orange and Tassandra Wright in Jersey City. Harrison said Adams tossed his nine-millimeter handgun out the window as they were driving on Routes 1 and 9.
The sole witness called by defendants was Detective Wright, who confirmed that he showed Abernathy several photos and asked him to identify the perpetrators. Detective Wright admitted that he destroyed the photos that Abernathy did not select. He also acknowledged showing Attabola only three or four photos. He admitted that the procedures used were not standard protocol, but he was unable to locate other photos of similar quality, likeness, and color.
The jury found Adams and Comer guilty of conspiracy, felony murder, multiple robberies, theft, and weapons offenses. They received lengthy consecutive sentences, but no sentence for any charge was beyond the then-presumptive term for each offense. Adams' aggregate sentence was sixty-seven years in prison with 61.45 years without parole. Comer's aggregate sentence was seventy-five years in prison with 68.25 years without parole.
Adams and Comer filed separate appeals raising numerous arguments. The Appellate Division affirmed their convictions and sentences in one unpublishedopinion. The panel found sufficient credible evidence to support the trial court's conclusions that the out-of-court identifications were reliable and that any error was harmless in light of the overwhelming evidence of guilt. The panel noted that if requested, a trial court should charge the jury to consider a co-defendant's guilty plea when evaluating the credibility of that witness, but the charge was not requested here. The panel rejected defendants' contentions that sentencing to the then-existing presumptive terms violated State v. Natale.
The Supreme Court granted defendants' separate petitions for certification. State v. Adams, 189 N.J. 650 (2007); State v. Comer, 191 N.J. 315 (2007). Certification was limited to three issues: (1) whether the identifications should have been excluded; (2) whether the trial court committed plain error in failing to instruct the jury on how to consider Harrison's testimony and guilty plea; and (3) whether the sentences imposed violated the principles of State v. Natale.
HELD: On this record, the Court declines to reevaluate the standards for the admissibility of out-of-court identifications. Under current standards, there was sufficient credible evidence to affirm the trial court's decision to admit the identification testimony. It was not plain error for the trial court to fail to give a cautionary charge on the use of Harrison's testimony and guilty plea. Finally, defendants' presumptive sentences, imposed prior to State v. Natale, do not require remands.
1. In supplemental briefs, defendants first urged the Court to adopt a new standard to exclude unnecessarily suggestive identifications without regard to reliability. Following its decision in State v. Herrera, 187 N.J. 493 (2006), the Court declines to adopt a new standard in the absence of a trial court record on the issue. Parties in future matters are encouraged to present a proper record in an effort to improve standards for gauging the admissibility of out-of-court identifications. (pp. 16-20)
2. The current standard for evaluating the admissibility of out-of-court identifications requires a court to determine whether the identification procedure was impermissibly suggestive. If it was, the court must determine whether the identifications were reliable by considering all the circumstances and weighing the suggestive nature of the identification against its reliability. Here, it is not disputed that the procedures were impermissibly suggestive. The issue is the reliability of the identifications. There was sufficient credible evidence in the record to support the trial court's conclusion that, despite the suggestive nature of the procedures, they did not create a substantial likelihood of misidentification. The witnesses viewed defendants from short distances and consistently stated their positions in the vehicle. Several witnesses correctly noted defendants' height differences. Also, the times between the initial encounters and the identifications were short. (pp. 20-25)
3. Adams and Comer assert error in the trial court's failure to provide limiting instructions regarding Harrison's testimony and guilty plea. Because they did not object to the instructions at trial, the issues are considered under the plain error rule. A trial court should instruct a jury that it must carefully scrutinize a co-defendant's testimony in light of his or her special interest in the case and that his or her guilty plea may not be used as evidence of a defendant's guilt. Here, the failure to provide such an instruction was not clearly capable of producing an unjust result. At trial, defense counsel thoroughly cross-examined Harrison to challenge his credibility. His lack of credibility was a major theme in closing arguments for the defense. Also, the trial court gave the standard charge on credibility. (pp. 26-29)
4. In State v. Natale, the Court held that a sentence above the presumptive statutory term, based on a judicial finding of aggravating factors, violates a defendant's Sixth Amendment jury trial guarantee. Here, defendants' Six Amendment rights were not violated because they were not sentenced above the then-existing presumptive sentence. (pp. 29-30)
The judgments of the Appellate Division are AFFIRMED.
JUSTICE ALBIN has filed a separate CONCURRING opinion, in which JUSTICE LONG joins, expressing the view that to minimize the likelihood of misidentifications, the Court should adopt a standard that prohibits law enforcement from displaying a single suspect's photograph to a witness except when necessary due exigent circumstances.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, RIVERA-SOTO and HOENS join in JUSTICE WALLACE's opinion. JUSTICE ALBIN has filed a concurring opinion, in which JUSTICE LONG joins.
The opinion of the court was delivered by: Justice Wallace, Jr.
In these back-to-back appeals, consolidated for the purpose of this opinion, defendants Ibn Adams and James Comer were charged with various offenses arising out of multiple robberies and a homicide. A third defendant, Dexter Harrison, was charged with similar offenses but in a separate indictment. During the criminal investigation, the police engaged in less than optimal out-of-court photograph identification techniques. Following a hearing to test the admissibility of those identifications of defendants, the trial court found the procedures used were unduly suggestive, but nevertheless reliable and therefore admissible. Adams and Comer were tried together before a jury. Harrison, who reached a plea agreement with the State, was a crucial witness for the State in its case against Adams and Comer. Defendants did not request, and the trial court did not give, a specific jury charge that Harrison's guilty plea could only be considered to assess his credibility and that the jury should carefully scrutinize his testimony in light of his special interest in the case. Adams and Comer were convicted of felony-murder, multiple robberies, and weapons offenses. Although both defendants received lengthy consecutive sentences, no sentence for any charge was beyond the then-presumptive sentence for each offense. The Appellate Division affirmed the convictions and sentences. Defendants petitioned this Court for certification, and we granted the separate petitions. State v. Adams, 189 N.J. 650 (2007); State v. Comer, 191 N.J. 315 (2007).
We now affirm. We conclude that, similar to the view we expressed in State v. Herrera, 187 N.J. 493 (2006), these cases do not present a proper record to consider modifying our standards for evaluating the admissibility of out-of-court identifications. Further, on the record presented, we agree with the Appellate Division that there was sufficient credible evidence to affirm the trial court's decision to admit the identification testimony and that it was not plain error for the trial court to fail to give a cautionary charge on the use of Harrison's testimony and guilty plea. Lastly, we hold that defendants' presumptive sentences, imposed prior to our decision in State v. Natale, 184 N.J. 458 (2005), do not require remands.
Briefly, on April 17, 2000, Adams, Comer, and Harrison stole a car and committed several armed robberies, one of which resulted in the shooting death of George Paul. After the stolen car, a white Honda Civic, ran out of gas, they pushed it to Tullo's Truck Stop where they eventually were apprehended. A search of the three suspects and the stolen vehicle revealed incriminating evidence of the robberies. The police drove the three suspects to headquarters where Harrison agreed to give a statement. He admitted they had committed two robberies in East Orange and that he had left his car parked on the street. The police obtained a search warrant and searched Harrison's Nissan, from which they recovered a snatch bar, a book bag, a pair of boots, and a jacket. Based on Harrison's statement, Detective John Plaugir drove Harrison back to Tullo's Truck Stop and retrieved a loaded .25 caliber handgun from the bathroom. During the ensuing investigation, various victims met with the police and identified photographs of the perpetrators and various items of personal property that had been taken from them.
Defendants Adams and Comer were indicted for (1) second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count one); (2) first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); (3) four counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts four, seven, ten, and thirteen); (4) six counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts five, eight, eleven, fourteen, seventeen, and eighteen); (5) four counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six, nine, twelve and fifteen); and (6) third-degree theft, N.J.S.A. 2C:20-3(a) (count sixteen). In addition, Adams was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count two).
Co-defendant Harrison was indicted separately. He entered into a plea agreement with the State in which he pled guilty to various charges in exchange for a recommended concurrent sentence of twenty years with an eighty-five-percent parole bar. The sentence could be lowered depending on the quality and quantity of Harrison's testimony against the other defendants.
Prior to trial, Adams and Comer moved to suppress the outof-court identifications by Dinis Sachdeva, Deru Abernathy, Allyson Attabola, and Tassandra Wright. At the suppression hearing, Detective David Montgomery of the Kearny Police Department and Detective Tom Wright of the East Orange Police Department testified on behalf of the State.
Detective Montgomery testified that around 5:20 a.m. on April 18, 2000, Dinis Sachdeva, the gas station attendant, arrived at the police station and gave a statement. When Detective Montgomery showed Sachdeva single Polaroid photographs of the three defendants, Sachdeva immediately identified the photographs of Comer and Harrison, but could not identify Adams. Detective Montgomery testified that he showed Sachdeva individual photographs of the three men because ...