May 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
QUASHON JOHNSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-06-0598.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2008
Before Judges Axelrad and Messano.
Following a jury trial, defendant Quashon Johnson was convicted of the first-degree robbery of Michael Ridges, N.J.S.A. 2C:15-1 (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); fourth-degree aggravated assault by knowingly pointing a firearm at Ridges under circumstances manifesting extreme indifference to human life, N.J.S.A. 2C:12-1(b)(4) (count four); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count five). At sentencing, the judge merged counts two, four, and five into count one and sentenced defendant to a period of imprisonment of twelve years, 85% of which was to be served without parole under the No Early Release Act (NERA).*fn1 The judge imposed a concurrent four year sentence of imprisonment on count three, along with the appropriate monetary penalties.
On appeal, defendant raises the following points for our consideration:
POINT ONE THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THE IMPERMISSILBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION OF DEFENDANT BY RIDGES AND THE RESULTING TAINTED IN-COURT IDENTIFICATION.
POINT TWO THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PROVE IDENTITY BEYOND A REASONABLE DOUBT.
POINT THREE THE TRIAL COURT ABUSED ITS DISCRETION BY NOT SENTENCING DEFENDANT TO A CRIME A DEGREE LOWER OR AT LEAST TO THE MINIMUM TERM FOR A FIRST-DEGREE CRIME.
In a pro se filing, defendant has raised the following points for our consideration:
POINT ONE DEFENDANT  RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME OF PLEA AND SENTENCING WHEN HIS TRIAL ATTORNEY FAILED TO MOVE TO SUPPRESS HIS ARREST AND ALL INFORMATION USED IN ATTAINING PROBABLE CAUSE UNLAWFULLY, WHICH IS A VIOLATION OF HIS [SIXTH] AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
POINT A [DEFENDANT'S] CONSTITUTION[AL] RIGHTS WERE VIOLATED AS A RESULT OF THE "JUDICIAL REQUIREMENT" NOT BEING MET IN THE ISSUANCE OF THE INSTANT ARREST WARRANT, THEREBY FAILING TO ESTABLISH PROBABLE CAUSE AS MANDATED [AND] REQUIRED BY NEW JERSEY RULES OF  COURT . . . AND NEW JERSEY'S CONSTITUTION.
POINT B THE STATE HAS VIOLATED THE SEPARATION OF POWERS DOCTRINE BY ALLOWING THE ARRESTING OFFICER'S ISSUANCE OF THE INSTANT ARREST WARRANT. THIS VIOLATION HAS BECOME CLEAR IN LIGHT OF THE FACT THAT THE NEW JERSEY CONSTITUTION DOES NOT HAVE ANY PROVISIONS THAT GRANT AUTHORITY TO AN EXECUTIVE OFFICER.
POINT C THE REMEDY FOR A DEFECTIVE ARREST IS SUPPRESSION OF THE EVIDENCE THAT WAS SEIZED AS PART OF THE ARREST. A DEFECTIVE ARREST WARRANT ALLOWS FOR [DEFENDANT] TO SUPPRESS THE EVIDENCE THAT WAS A PRODUCT OF THE ILLEGAL ARREST, IT DOES NOT INVALIDATE THE PROSECUTION[']S ABILITY TO CONTINUE ITS PROSECUTION.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
Defendant moved pre-trial to suppress an out-of-court photographic identification and requested a Wade hearing.*fn2
Colloquy between the judge and the attorneys established the basis for defendant's request. See State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.) (holding defendant must make "a threshold showing of some evidence of impermissible suggestiveness in all pre-charge police photographic array identification procedures" before an evidentiary hearing is required), certif. denied, 102 N.J. 335 (1985).
As explained by defense counsel, defendant was initially charged with the robbery of Benny's Mini Market in Paterson based upon a statement given to the police by one Tyvone Harrison. Further investigation revealed that in fact Harrison had falsely accused defendant, leading to the dismissal of the charge against defendant and the conviction of another person for that robbery. However, based upon "similarities" between the two robberies, the police suspected defendant of having robbed Ridges and included defendant's photograph in a photo array they showed to him. Based upon these representations, the judge concluded
[B]ecause of the specific and particular facts of this case and the totality of the circumstances, it could be a situation where there was some suggestibility on the part of the police officers if they believed that [defendant] was involved in the Mini Market robbery . . . [a]nd they saw some similarities between the two [robberies] which led them to believe that [defendant] perpetrated the Ridges robbery, it is conceivable to me that not even intentionally but unintentionally or subconsciously they might have done something to steer . . . Ridges into picking [defendant's] photograph.
The judge granted defendant's request for a Wade hearing.
The State's first witness was Detective Daniel Findlay of the Paterson police department. He testified that on April 8, 2003, Ridges came to the detective bureau pursuant to Findlay's invitation to view some "mug books." Ridges had been the victim of an "armed robbery" shortly after midnight on April 6, and described his assailants as "black male[s]" to the initial investigating officers. Findlay provided Ridges with "ten, twelve" photo albums of "black males" and left him alone "in a room." Findlay testified that after "ten, fifteen minutes," Ridges came out of the room and yelled his name. Findlay went back into the room, Ridges identified a photo of defendant as one of his assailants, and the detective had him sign and date the picture. Findlay then took a formal question and answer identification statement from Ridges.
In that statement, Ridges claimed that defendant was "[t]he one with the gun" during the robbery. When asked, "On a scale of one to ten, with ten being the most certain, are you sure this is the person?," Ridges responded, "Yes, ten." After Ridges had made his identification and left the office, Findlay told a fellow detective who was investigating the Mini Market robbery that "a suspect [had been] identified in [Ridges's] robbery."
On cross-examination, Findlay could not remember discussing the Mini Market robbery prior to Ridges's identification even though he acknowledged that the entire detective squad would hold daily meetings to discuss their open cases with each other. Findlay did not recall ever hearing defendant's name in the context of that investigation. Defense counsel then attempted to ask Findlay a question based upon a police report filed during the earlier Mini Market robbery investigation in February. That report apparently indicated that Harrison had identified defendant's photo as that of the person who perpetrated the Mini Market robbery, and that as a result, defendant's photo was removed from the mug shot book at that time. Although Findlay had no first hand knowledge of the procedure involving Harrison, the judge permitted a question allowing Findlay to state "in generalities how [defendant's] photograph could have been in the book on April 8, 2003 when, according to that report . . . it had been removed in February." Findlay had no explanation other than the possibility that defendant's photo had been replaced in the interim. Findlay also testified that a wanted flyer naming defendant in connection with the Mini Market robbery had been circulated, though Findlay did not recall seeing the flyer before the photo array was shown to Ridges.
The State's next witness at the hearing was Michael Ridges. He testified that shortly after midnight on April 6, 2003, as he exited his car in the parking lot of his apartment building, he was robbed at gunpoint by two individuals. Ridges claimed that one man held a gun to his forehead and demanded his money while a second man was "tugging on [his] back." Ridges testified that he "went berserk" and turned toward the man behind him causing both robbers to run away.
Ridges further claimed that he could see the face of the man with the gun from his brow to his chin, but could not see the man's forehead or above because he wore a hood. He claimed the robbery took between one and two minutes during which time the man with the gun rifled Ridges's pockets and the man behind him removed a small brown briefcase from his backpack.
When asked if he saw the man with the gun in the courtroom, Ridges referring to defendant said I'm not saying it's him, you know, but it looks--the features and everything are exactly the same . . . .
I seen a guy, when I was coming in, across the hall that had the same features like him almost . . . .
What I'm trying to say is if you want me to say if this is the person . . . like I say, I didn't stop this person that night. If I did, we wouldn't be here right now. But this guy (defendant), it looks like the guy that was there that night.
Ridges then described viewing photographs at the Paterson police department two days after the robbery. Contrary to Findlay's testimony, Ridges claimed that as he was viewing only one photo book, Findlay came into the room and laid down two photos "off the side of the book." Ridges immediately identified one of those photos as depicting one of his assailants, the man with the gun. It was a photo of defendant, and Ridges signed and dated the back of the picture.
During cross-examination, Ridges acknowledged that while defendant had "features" similar to the man who robbed him, he also saw someone standing in the hallway of the courthouse that had "[t]he same features." When asked if that person could have been the man with the gun on the night of the robbery, Ridges responded, "True, yes." The court recessed for the day when cross-examination ended.
When the proceedings commenced the next day, the judge indicated that he wished to hear testimony from Ridges regarding an incident at his workplace subsequent to the robbery. Ridges testified that one day while at work, his friend Ashley Mallet approached him and said someone was there to see him. It was defendant, and Mallet told Ridges, "This guy said that you accused him of an armed robbery." Ridges testified that he said nothing and simply walked away. He denied being threatened in any way by defendant, who he believed to be a friend of Mallet, or by Mallet, and claimed he was not offered anything to change his story.
The judge then permitted further cross-examination on the identification issue. Ridges admitted that he used reading glasses but they were in his briefcase on the night of the robbery. On re-direct, Ridges again was equivocal about his identification of defendant as one of his assailants, leading the judge to question him directly
Judge: In other words, you are not saying yes, it's him.
Judge: And you are not saying no, it's definitely not him. You are saying you don't know if it's him or not.
Judge: It could be or it could not be, is that the bottom line?
Ridges: It could or it could not be, right.
The judge excused the witness and took a recess.
However, as the proceedings commenced again, the prosecutor asked to recall Ridges to the witness stand. Noting that at the close of the prior day's proceedings, the prosecutor "was seriously considering dismissing the charges," the judge observed, "[I]t's very difficult to discern exactly what it is that [Ridges is] saying." The prosecutor then explained why she wished to recall Ridges.
Apparently in attempting to reach a decision regarding whether to proceed with the prosecution or not, the prosecutor consulted with her senior trial partner in the hallway outside the courtroom and in Ridge's presence. As she explained to the judge, "[W]e had to clarify with him whether or not he was sure or unsure [of his identification of defendant]." She indicated that Ridges had told her and her trial partner that he was sure that defendant was the man who robbed him at gunpoint. The judge permitted Ridges to be recalled.
This time Ridges indicated that he was "certain" that defendant was the man. On re-cross, Ridges admitted that the man he had seen in the hallway of the courthouse yesterday "had similar features" to the man that robbed him, but he reiterated "with certainty" that defendant was one of the robbers.
After luncheon recess, defense counsel wished to make a proffer regarding a conversation defendant overheard in the hallway between Ridges, the two prosecutors, and an investigator from the prosecutor's office. Defendant was sworn as a witness and testified that during the earlier recess between Ridges's two appearances on the stand, he overheard some of the investigator's conversation with him. Defendant contended that the investigator mentioned the word "dismissal" to Ridges or may have said "he's walking," referring to defendant.
The prosecutor then called her trial partner Sumana Mitra to the witness stand. She acknowledged that between Ridges's two appearances that day as a witness, the trial prosecutor, their investigator, Selina Brown, and she all spoke to Ridges. Mitra testified that she was attempting to have Ridges clarify his identification testimony, particularly as it related to the unknown individual that he had seen in the hallway the day before. She denied ever telling Ridges that the charges against defendant were likely to be dismissed because of his equivocal identification.*fn3
In a comprehensive oral opinion which we discuss in greater detail below, the judge concluded that Ridges's out-of-court identification of defendant was admissible because it was reliable despite any impermissible suggestiveness in the procedure employed by Findlay. At trial, the State called Ridges and police officer Stanley Rodriguez as its only witnesses.
Rodriguez arrested defendant on April 9, 2003, and indicated that defendant's mother lived at 70 Jasper Street and defendant provided his own address as 125 Jasper Street. Martinez marked where 70 Jasper Street was located on a map of Paterson.
Ridges testified before the jury about the circumstances of the robbery. He marked on the map of Paterson where it occurred; we gather from comments that followed that this was in close proximity to defendant's address and his mother's residence. Ridges also identified defendant as the person who held a gun to his head during the incident. In his opinion, the gun was a real gun and not a toy or replica. He then testified about the identification procedure at the police department and reiterated that Findlay came in while he was looking through a book of photos, laid two pictures down next to the book, and he selected one of them immediately. When the prosecutor asked Ridges how certain he was about the identification of defendant in the courtroom, he said, "Almost 100 percent."
Although there was extensive cross-examination about his equivocal testimony during the pre-trial Wade hearing, it suffices to say the Ridges's redirect testimony before the jury ended with this answer and reference to defendant at counsel table:
When I stepped through the door [of the courtroom], I looked at [defendant's] face and I said that's the man that was looking me dead in my eyes and holding a gun to my head. I don't want to make anybody wrong or anything, but that's what happened that night. This person I seen that night is sitting over there.
Defendant's motion for acquittal was denied by the judge and the defense case began with the testimony of Maggie Aguilar, defendant's girlfriend. She testified that she and her three children lived with defendant at 125 Jasper Street in Paterson. On Saturday, April 5, 2003, she claimed that defendant returned home, prepared dinner, and then played videogames with his sister, her boyfriend, and a friend. Although Aguilar went to bed around 9 p.m., and the others continued to play games in the living room, she was certain defendant never left the apartment that night.
Keyonna Johnson, defendant's sister, was the next witness. She lived with her boyfriend at 70 Jasper Street in Paterson, and reaffirmed much of Aguilar's testimony. She claimed that she and her boyfriend left defendant's home about 10:30 p.m., an hour or so after Aguilar went to sleep, because defendant wanted to "turn in." They went to another friend's house, across the street from defendant's apartment, for about another hour. She testified that there were no lights on at defendant's apartment when she returned home with her boyfriend shortly after midnight.
Defendant testified as the final witness in the case and reiterated the prior testimony of Aguilar and Keyonna regarding the night's events. He claimed he went to bed "like eleven something," did not rise until the next morning, and did not rob Ridges. Defendant also claimed that because of a prior hernia operation, he was unable to lift heavy things or run, thereby implying that he could not have been one of the robbers since Ridges testified they had run from the scene. On cross-examination, defendant acknowledged that his apartment was close to where Ridges was robbed.
The jury was charged and deliberated for a short time before being dismissed for the evening. At the beginning of the next day, one of the deliberating jurors failed to appear because of illness, so an alternate juror was substituted and the judge instructed the jury to commence deliberations anew. After some read back of testimony and requests for further instructions were answered, the jury sent out a note indicating it was deadlocked and had been so since the morning. The judge gave the appropriate charge and the jurors continued their deliberations but were dismissed shortly thereafter for the evening. At 12:28 p.m. of the next day, the jury reached the verdict finding defendant guilty of all charges.
On sentencing day, defendant moved for a new trial or a judgment notwithstanding the verdict (JNOV) essentially arguing that Ridges's identification testimony was insufficient to prove defendant committed the robbery beyond a reasonable doubt. However, the judge noted that Ridges was a credible witness before the jury, and he believed he could not substitute his own judgment of the evidence for that of the jury. He denied the motion and sentenced defendant as set forth above.
We first consider defendant's argument that the judge erred in admitting Ridges's out-of-court identification of defendant because the procedure used by Findlay was impermissibly suggestive and resulted in a substantial likelihood of irreparable misidentification. The State counters by arguing that the judge made adequate findings of fact regarding Ridges's ability to observe defendant during the actual robbery, thus refuting the likelihood on any misidentification, that the judge's conclusion was in accord with the proper exercise of his discretion, and that it should not be overturned.
The standards we apply to assess this issue were recently reiterated by the Supreme Court in State v. Adams, 194 N.J. 186 (2008). "In our two-pronged approach to determine the admissibility of an out-of-court identification, the reviewing court must first 'ascertain whether the identification procedure was impermissibly suggestive.'" Id. at 35-36 (quoting State v. Romero, 191 N.J. 59, 76 (2007)). If it was, "the court must then decide 'whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification.'"
Adams, supra, 194 N.J. 36 (quoting Romero, supra, 191 N.J. at 76). "The essential question is whether there was sufficient reliability in the identification to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification." Id. 37.
In Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977), the United States Supreme Court set forth the factors to be considered by the trial court in determining reliability as follows:
[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. [Ibid.]
When we review the trial judge's determination as to the reliability of the witness's identification, the findings are "entitled to very considerable weight." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396 L.Ed. 2d 602 (1973). "[T]he trial court's findings that photographic identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings." Adams, supra, 194 N.J. at 35.
Here, the trial judge found Findlay's testimony regarding the out-of-court photographic identification procedure to be "credible." He also found Ridges to be "very credible." The judge reasoned that if the procedure occurred as Findlay described it, "there [was] nothing inappropriate about it. In fact, it was not even suggestive, let alone impermissibly suggestive."
While not expressly finding that the identification procedure in fact occurred as Findlay described, the judge then considered the procedure as it was described by Ridges. Noting "there's no way to reconcile the two versions," the judge concluded that if the photographic identification occurred as Ridges described, it was impermissibly suggestive.
However, after citing the authorities we have referenced above, the judge noted that Ridges "had an ample opportunity to view the criminal who encountered him at the time of the crime." He recalled Ridges's testimony that he and defendant were close enough to be "breathing the same air." The judge noted that Ridges described in detail the lighting conditions in the area at the time, and the fact that because he was apprehensive that something was about to occur, Ridges actually tried to get to an area of the parking lot bathed in the light of an overhead lamp. The judge noted that Ridges told the investigating officer on the night of the robbery that he "w[ould] be able to identify that person if [he] [saw] him again." Finding the identification to be reliable, the judge considered Ridges's courtroom demeanor, finding "he [was] not the type of person who would point at a picture and say that's the guy unless he was sure it was him."
We conclude that the judge appropriately considered all the factors set forth in Manson, supra. We accord deference to the findings he made, particularly since they were based extensively upon the judge's determination of the credibility of the witnesses and his opportunity to observe them as they testified. State v. Locurto, 157 N.J. 463, 474 (1999). We find no basis to reverse the decision reached by the judge.
We turn to defendant's second argument that his motion for acquittal should have been granted because "the State failed to prove identity beyond a reasonable doubt." Defendant argues that there was no evidence, beyond Ridges's equivocal identification, that proved his involvement in the crime. We disagree.
The trial judge properly considered the motion for acquittal during and after trial by relying upon the standard adopted by the Supreme Court in State v. Reyes, 50 N.J. 454, 458-59 (1967).
[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [Ibid.]
We review the issue de novo and apply the same standard as the trial court, assessing the merits of the argument without reference to any of defendant's proofs. Id. at 459; see State v. Samuels, 189 N.J. 236, 245 (2007) (noting same standard applies to a motion made after the close of all evidence in the case, and limiting consideration to only the State's proofs).
The case clearly rose or fell upon the credibility of Ridges and the certainty of his identification of defendant as one of his assailants. In this regard, it is clear that Ridges expressed some equivocation regarding his identification during the Wade hearing, and defense counsel cross-examined him extensively about that before the jury.
However, we have long recognized "[t]he lack of certainty on the part of the identifying witness, or the indefiniteness of the identification, goes to the weight to be given the testimony and to its credibility." State v. Lutz, 165 N.J. Super. 278, 290 (App. Div. 1979). Combined with other evidence, even an uncertain identification may be sufficient to convict a defendant. Id. at 290.
We concede that in this case, the only other evidence beyond Ridges's identification was the testimony that defendant lived in close proximity to the site of the robbery. Taken in conjunction with Ridges's testimony that the robbers fled on foot, not in a vehicle, an inference could be drawn that the assailants lived nearby or were fleeing to a nearby location. More importantly, in front of the jury, Ridges was quite certain that defendant was the man who held a gun to his head during the robbery and the jury was fully entitled to determine his credibility on the issue. We find no basis to reverse.
We consider defendant's argument that the judge abused his discretion by sentencing defendant to twelve years imprisonment with an 85% period of parole disqualification. Defendant contends that the proper exercise of the judge's discretion should have resulted in a sentence to the minimum term for a first-degree crime, ten years, or to a sentence consistent with a second-degree crime, that is between five and ten years imprisonment.
Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984). With respect to ability to "downgrade" a first or second-degree offense for sentencing purposes, N.J.S.A. 2C:44-1(f)(2), the Supreme Court has held that "[t]he reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." State v. Megargel, 143 N.J. 484, 505 (1996).
Here, the judge found aggravating factor three, the risk that defendant would re-offend, and nine, the need for deterrence. These finding were based upon defendant's admitted daily drug use, a prior disorderly persons conviction, a pending indictable drug charge, and five other arrests that resulted in dismissals. The judge also found mitigating factor seven, defendant's basic law-abiding life beforehand, and eleven, the hardship caused to his family by his imprisonment. The judge also took note of defendant's active involvement in his community.
After weighing the aggravating and mitigating factors, the judge concluded that defendant should receive a sentence at the lower end of the range required for a conviction of a first-degree crime. We cannot conclude that the judge mistakenly exercised the broad discretion he was accorded in fashioning the proper sentence or in refusing to downgrade the first-degree armed robbery conviction by sentencing defendant to a one degree less.
With respect to the issues defendant raises in his pro se filing, we believe the arguments alleging the ineffective assistance of his trial counsel are best reserved for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992). The other issues he raises are without sufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(2).