On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-04-0739.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Grall and Waugh.
Defendant Cecilia X. Chen appeals from a final judgment of conviction. A jury found Chen guilty of attempted murder, and she was sentenced to a ten-year term of incarceration, which is subject to a parole-ineligibility term of eight-and-one-half years and a five-year term of parole under the No Early Release Act, N.J.S.A. 2C:43-7.2.*fn1
The identity of the attacker was the central issue at trial, and the admissibility of the identification evidence is the most significant issue raised on appeal. There was evidence that the victim initially identified Chen under highly suggestive circumstances that posed a significant risk of compromising the initial and subsequent identifications. It is undisputed that law enforcement officers had no role in creating, encouraging or permitting the highly suggestive procedures utilized at the time of the initial identification.
Although the facts of this case are unusual, general principles of evidence law address the legal issues. The judiciary has a responsibility to ensure that "evidence admitted at trial is sufficiently reliable" to be of use to the jurors in a criminal trial, and the rules permit courts to exclude evidence that does not meet the threshold of reliability required for admission. The rules also permit courts to exclude evidence that is of such questionable reliability that its probative value is substantially outweighed by the risk of prejudice and misleading the jury. State v. Michaels, 136 N.J. 299, 316 (1994); see State v. Williams, 39 N.J. 471, 489 (1963) (discussing conditions for admission of out-of-court identifications); N.J.R.E. 403, 803. Even when law enforcement agents are not involved, evidence that an identification was made under highly suggestive circumstances that pose a significant risk of misidentification calls the reliability of the initial and subsequent identifications into question. Upon a request supported by such evidence, a trial court should conduct a hearing to assess whether the evidence is sufficiently reliable or whether its reliability is so diminished by the suggestive circumstances that the probative value is substantially outweighed by the risk of prejudice and misleading the jury. See id. at 315-16; N.J.R.E. 104, 403, 803.
Mrs. Kim, the victim of the crime, was attacked on January 26, 2005. At 4:08 p.m., she received a phone call. The caller asked for her husband. Mrs. Kim said he was not in and asked who was calling. The woman claimed to work for a bank, and when Mrs. Kim asked how she got the Kims' phone number, the caller hung up. The Kims' caller identification device indicated the call was placed from "Foley's Liquor Store," in Neptune City. The Kims' home is in Ocean Township.
After the phone call, Mrs. Kim, who was pregnant and recovering from surgery, went upstairs to rest. She was awakened by knocking at her front door.
A young woman, whom Mrs. Kim had never seen before, was standing outside. The stranger said her car had broken down and asked to use the phone. When Mrs. Kim returned with the phone, the stranger asked to use the bathroom. Mrs. Kim allowed her in and directed the woman to the bathroom. As the stranger walked toward the bathroom, Mrs. Kim noticed a computer cord hanging from her coat sleeve. Mrs. Kim called her husband and was still speaking to him when the woman came up the steps from the bathroom and stabbed her in the back, near her neck. Mr. Kim heard screams and called 9-1-1. The stranger continued to stab at Mrs. Kim with a small kitchen knife and attempted to get the computer cord around her neck.
Mrs. Kim struggled with the stranger. Her eyelid and hand were cut and her wrist was bruised. During the struggle, the stranger's eyeglasses fell from her face. Although the stranger said "I just want your money," she made no attempt to take anything. Mrs. Kim managed to pull the woman through the front door and onto the porch. Once outside, Mrs. Kim called for help.
Mrs. Schoch, who lives across the street from the Kims, heard screaming and saw Mrs. Kim fighting with the woman. Mrs. Kim managed to take the computer cord and knife away from her attacker. When she was about to use the knife to strike back, the stranger warned her not to "do anything to hurt [her] baby." As Mrs. Schoch crossed the street to help, the stranger turned, looked at Mrs. Schoch and ran away. Neither Mrs. Kim nor Mrs. Schoch saw her car.
Officer Thomas Burke of the Ocean Township Police Department arrived at the Kims' home after the attacker fled. Mrs. Kim described her attacker as a Filipino woman, approximately five feet and four inches tall, wearing a black jacket, gray hood, dark pants, brown boots and black gloves. Officers searched the area but did not find a suspect.
Sergeant Michael Clancy interviewed Mrs. Kim. She was bleeding, upset and, according to Clancy, visibly pregnant.*fn2 She told him she had never seen her attacker before. She described the stranger as a Filipino, Asian woman, about twenty-five years old, five feet and four inches tall and weighing between 115 and 125 pounds. Her hair was dark, and she was wearing black-frame eyeglasses, a gray scarf around her head and face, a black zipup jacket, black gloves, dark black or blue pants, and light brown L.L. Bean style boots.
Mrs. Kim was taken to the hospital and released the same day. The police gathered the eyeglasses, computer cord and knife. Although the evidence was tested, the police were unable to obtain fingerprints or a sufficient quantity of DNA to permit an identification.
After Mrs. Kim was released from the hospital, she met Clancy at police headquarters and gave the following description in a formal, signed statement:
She was 5'3" to 5'4" anywhere between 110 to 120 lbs. She was about 20 to 25 years of age. She looked young. She was Asian and looked more like Philippine or Vietnamese. Like a darker skin, maybe Chinese but I doubt it. She had a small face. Mine is long but hers wasn't[;] she had more of a round face. She had a smaller nose. Her eyes and her cheekbone[s] were close, almost a slightly chubby face. She had a little fuller lip th[a]n me. She didn't have an accent but had a soft tone. She was wearing a black jacket, gray scarf around her head, neck and face area. She had straight black hair. She had on black pants and black gloves. The gloves were typical winter gloves with fingers, cotton or wool. They were not leather or spandex[;] they were thin and soft. She also had on brown boots that I think came up to her ankle. She was wearing glasses when she first came in.
Very thin[-]framed black rim glasses. She had clean skin.
No. Her face didn't have any scars, nothing.
When Mrs. Kim returned to her home after meeting with Clancy, she could not sleep. She attempted to draw a sketch of the woman. The following morning, she showed the sketch to her husband and her sister.
After Mr. Kim saw his wife's sketch, he suspected that Chen attacked his wife. Three days before the attack, Chen called Mr. Kim. They had dated several years before, but he had not seen or heard from her since summer 2000, when she left the New Jersey area to join the military and attend medical school. During their conversation, Mr. Kim told Chen that he had married, bought a home and was expecting the birth of his first child. Chen told him that she wondered how things would have worked out between them and that she regretted having taken him "for granted."
Mr. Kim went to the computer, searched the internet and found Chen's webpage, which had several pictures of her. He, his wife and her sister looked at the pictures. After seeing between five and ten photos, Mrs. Kim was "90 percent positive" that Chen was her attacker. She was not completely certain because, unlike the woman who attacked her, Chen was smiling and was not wearing eyeglasses when the pictures were taken.
Mr. Kim printed two of the pictures from Chen's website. In one picture she was with her female cousin; in the other she was with a female friend. Still less than certain, Mrs. Kim described the eyeglasses the intruder wore. Her sister then drew eyeglasses on Chen's photograph. When Mrs. Kim saw the altered picture, she was completely certain that Chen was the woman who attacked her.
Later that day, the Kims went to police headquarters and gave Clancy Mrs. Kim's sketch and the pictures of Chen. Mrs. Kim then worked with an officer who produced a composite sketch. Mrs. Schoch, who was not present, saw that sketch in the newspaper. Both Mrs. Kim and Mrs. Schoch thought that the composite did not accurately depict the attacker's cheekbones.
Chen was arrested on November 1, 2005, and indicted on April 17, 2006. In November 2006, the police compiled a photo array. Mrs. Schoch and Mrs. Kim both selected Chen's photo. Written and video records of both identifications were made.
At trial, Clancy acknowledged that one of the reasons for delaying the photo array was concern about Mrs. Kim's having identified Chen from the photographs her husband retrieved. Mrs. Kim admitted that during the first month after the attack, she looked at Chen's photograph "over and over, but probably five [times] more or less." Mrs. ...