May 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TONY BAKKAOA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Indictment No. 05-09-1339.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 29, 2008
Before Judges Fuentes and Chambers.
Defendant appeals from his convictions for aggravated assault and related weapons charges arising out of the stabbing of two men in a bar in Paterson. At trial he was identified as the person who did the stabbing by the two victims as well as by an off-duty sheriff's officer. On appeal, defendant contends that the trial court erred in failing to conduct a Wade hearing and failing to give an identification charge. We find no plain error in the failure to conduct a Wade hearing. While we concur that the trial court should have given an identification charge, failure to do so was not plain error in the context of this case. Accordingly, we affirm the convictions.
During the early morning hours of June 11, 2005, an argument broke out at a pool table in a Paterson bar, and defendant was involved in a fight outside the bar. Defendant left the premises and then returned to the bar with other friends.
The particulars of what happened next are in dispute. The State maintained that in an altercation outside the bar, defendant stabbed one victim, Stanley Ramirez. Defendant then entered the bar holding a knife and stabbed the second victim, Oscar Rosario, three times in the back and side. Defendant was then hit over the head with a bottle by a woman. In his trial testimony, defendant acknowledged that he had been beaten up outside the bar and that he went back to the bar with his friends. He contends that as soon as he went back into the bar, he was hit over the head with a bottle, and he does not know what happened after that. He denied having a knife.
Herbert Cruz, an off-duty sheriff's officer who had been at the bar, spoke to defendant before the first fight; he saw defendant in the first fight outside the bar; he saw defendant enter the bar the second time with a knife in his hand; and he witnessed defendant stab Rosario inside the bar. Cruz provided a description of the person who did the stabbing to the police. When the police learned that a person matching that description was receiving medical treatment at a local hospital, the police took Cruz to the hospital, where he identified defendant as the person who stabbed the victim inside the bar.
At the hospital that night, defendant was also presented to each of the victims, and they both identified defendant as the person who stabbed them. Each had observed defendant more than once at the bar that night. Ramirez saw defendant when he was stabbed and then he followed defendant into the bar, where he saw defendant swing a knife at Rosario. Rosario had observed defendant participate in the first fight outside the bar earlier in the evening, and he saw defendant with a knife in the bar before he was stabbed. At trial, all three witnesses identified defendant as the person who did at least one of the stabbings.
At trial, defense counsel asserted a twofold defense. First, he argued that defendant was not the person who did the stabbing and that the witnesses were mistaken in identifying him. Second, defense counsel argued that even if defendant had done the stabbing, he did not act purposely to cause serious bodily harm.
The jury rejected these arguments and found defendant guilty of second degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1) (counts one and two), third degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(d) (count three), and fourth degree possession of a weapon in violation of N.J.S.A. 2C:39-5(d) (count four). On January 12, 2007, defendant was sentenced to a term of six years with an eighty-five percent period of parole ineligibility on each aggravated assault conviction, to run concurrently.
N.J.S.A. 2C:43-7.2. Count three was merged into counts one and two, and defendant was given a concurrent term of nine months on count four.
In this appeal, defendant raises the following points:
Permitting the State's witnesses to testify about their out-of-court and in-court identifications of defendant without a Wade hearing first being conducted permitted the jury to hear identification testimony that was not reliable and unfairly prejudiced defendant (not raised below).
Even if the trial court was not required to conduct a Wade hearing and properly permitted the jury to hear the identification testimony, the court at least should have instructed the jury on identification, explained the State's burden to prove identification beyond a reasonable doubt, and noted the various factors that might have rendered the identifications at issue unreliable. Failing to give any charge on this central issue that the jury had to decide was fundamental error warranting vacation of defendant's resulting convictions (not raised below).
Defendant's sentence is excessive.
Defendant contends that the trial court erred by failing to conduct a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967) in order to determine if the out-of-court and subsequent in-court identifications by the two victims and off-duty sheriff's officer were reliable enough to be presented to a jury. Because this argument was not raised below, we will examine it under the plain error standard. R. 2:10-2.
A Wade hearing is not required in all cases involving identification testimony. See State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd, 135 N.J. 3 (1994). To be entitled to a Wade hearing, the defendant must show that the pretrial identification process utilized by the police was "impermissibly suggestive." State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). In determining whether the identification was impermissibly suggestive, the court must consider the totality of the circumstances. Ibid. The evidence will be excluded "where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist." State v. Madison, 109 N.J. 223, 234 (1988) (quoting 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)).
Even where the identification procedure was impermissibly suggestive, the identification evidence is admissible unless "the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Id. at 232 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed. 2d 1247, 1253 (1968)). The focus in this analysis is on the reliability of the identification considering the totality of the circumstances. Id. at 232-33. If the court finds that the identification is reliable despite the impermissibly suggestive procedures, the identification is admissible. Id. at 232.
Defendant argues that various circumstances, including the fact that defendant was the only person presented to the witnesses at the hospital as a suspect, and the fact that the victims were on pain medication and had been drinking, made the identifications at the hospital an "impermissibly suggestive procedure." However, looking at the totality of the circumstances present here, we cannot say that a substantial likelihood of misidentification exists. The witnesses were presented with the defendant shortly after the incident when the events were fresh in their minds. Further, each of the witnesses had seen defendant on more than one occasion at the bar that evening. The fact that these three witnesses all had occasion to see defendant more than once on the evening in question and identified him to the police shortly after these events eliminates any substantial likelihood of irreparable misidentification. Accordingly, we find no error in the failure to have a Wade hearing or the admission of the identification testimony.
The trial court did not include in its charge to the jury either a full or abbreviated instruction on identification.*fn1
Defense counsel did not request an identification instruction at trial. Nonetheless, defendant maintains in this appeal that this omission is a fatal error warranting reversal of the conviction.
Indeed, where identification is a "key issue" in a case, an identification instruction must be included in the jury charge even if it is not requested by defense counsel. State v. Cotto, 182 N.J. 316, 325 (2005) (quoting State v. Green, 63 N.J. 281, 291 (1981)). Identification is considered a key issue in the case where it is "the major . . . thrust of the defense," particularly in cases involving a single eyewitness victim. Id. at 325-26. As a general rule, a model identification charge should be given in every case in which identification is a legitimate issue. State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003). "The failure to give such a charge or to give an adequate charge is most often reversible error." Ibid. Where the defendant's identification argument is "thin," but "not specious," at least an abbreviated identification instruction must be given. Id. at 561-62.
Hence, the trial judge should have included in the charge an instruction on identification. We must then consider whether the failure to provide the instruction constitutes plain error warranting reversal. See R. 2:10-2. To determine whether the failure to include an identification instruction constitutes plain error, we must consider "the strength and quality of the State's corroborative evidence" which may render the error harmless. See State v. Cotto, supra, 182 N.J. at 327.
We note that in State v. Gaines, 377 N.J. Super. 612, 623-27 (App. Div.), certif. denied, 185 N.J. 264 (2005), a conviction was upheld although the trial judge failed to give either a complete or abbreviated identification instruction. We found that "[t]he strength and quality of the State's corroborative evidence rendered the deficiencies in the instruction harmless." Id. at 626. While defendant took the position that he was not the person who did the shooting, his identification was corroborated by two eyewitnesses who knew him. Ibid. Further, while there was not explicit identification instruction, the charge clearly indicated that the State had to prove that defendant committed the elements of the crime. Id. at 625.
Under the circumstances here, defendant's identification was corroborated by three eyewitnesses, who observed him on more than one occasion, and defendant's own testimony places him at the scene of the crime. Under these circumstances, the court's failure to give an identification instruction was not capable of producing an unjust result and the error was harmless.
The issues raised in this appeal regarding defendant's sentence are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).