On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-11-1010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2009
Before Judges Stern and Payne.
We granted leave to appeal from an order of April 17, 2008, granting defendant's motion to suppress an out of court identification in this case involving allegations of murder, attempted murder and other offenses. A witness, Khalid Walker, was involved in two separate photographic identification procedures.*fn1 He identified individuals at the first procedure. Defendant's photo was in the second. Walker initially stated he could not identify anyone, but after the video recorder was turned off and while Sgt. Marcantonio started to take Walker back to jail,*fn2 Walker indicated to Marcantonio, who had been involved in the investigation, that he could identify defendant's photo.
Back on camera Walker indicated he was seventy percent sure of the identification because of some changed features. The "dreads [weren't] there" at the time of the offense. The conversation with Marcantonio was not recorded on any form before the video camera was turned on again. Walker did not testify at the hearing.
Judge Stuart Peim ruled that the Attorney General Guidelines had been violated and suppressed the identification evidence of defendant in light of our opinion in State v. Henderson, 397 N.J. Super. 398 (App. Div. 2008), now pending on certification in the Supreme Court, 195 N.J. 521 (2008).
The State argues that the guidelines are not implicated because Sgt. Marcantonio was not involved in the original lineup (and it did not result in a positive identification of defendant) and Walker raised the subject while being taken back to jail. For the same reason the State argues the "off the record" conversation with Walker did not have to be noted on the identification form.
Defendant points out the judge found Marcantonio's testimony, that he did not tell Walker that the suspect's photo was among the six viewed, incredible. The judge noted Walker identified three other suspects and "was definitively at the time" a "cooperative witness." Marcantonio was an investigating officer in the case, and defendant argues the judge did not suppress the identification for a mere violation of the Guidelines but because he found it to be "unreliable."
The Attorney General in her amicus brief contends that "[a]s the Guidelines are not constitutional commands, defendant has no constitutional right to have the State's evidence sifted only because the Guidelines allegedly were breached" and that "the Attorney General never intended that strict compliance with [the] Guidelines would replace the two-pronged test for admissibility established" by the case law. The cover letter promulgating the Guidelines notes that violations were not intended to require suppression.*fn3
Henderson did not hold that a violation of the Guidelines required suppression per se. The State cannot be penalized by trying to make lineups fairer and better conducted. If a violation required suppression per se, the Attorney General might abandon the Guidelines and rely on the constitutional case law and its two-prong test. But Judge Peim did not read Henderson to apply a per se rule. Rather, he read it properly to apply to the first prong and the finding of undue suggestiveness. See Henderson, 397 N.J. Super. at 414-15.
The judge found (1) Marcantonio was involved in the investigation and should not have been involved in conducting the lineup at any time, even after it was initially over, (2) the interview should have been memorialized or tape recorded once the identification was reinstituted, (3) the detective did advise Walker that "the person was in the photo spread," and (4) "[w]hen the detective went out to get the photo array he knew he would be asking the witness to make an identification" which should have been conducted "by someone else." Judge Peim stated "the violations of the guidelines here are much more extensive than the much more limited violation in Henderson" and "there has been a purposeful contravention of the Attorney General guidelines." He concluded "based on those violations and the Henderson case . . . that the identification procedure was impressively suggestive," and then went on to consider prong 2 of the Manson/Madison constitutional test*fn4 ― "whether the identification was reliable considering the totality of the circumstances." He found the State did not satisfy its burden on that prong.
However, after the opinion was rendered, the judge, in response to a question from the prosecutor, added that if Henderson "was overruled," and it was held that a Guideline violation didn't require a "presumption [of suggestiveness] based on the violation," he would have "to take another look" at his opinion because "[m]y holding is based on Henderson."
We affirm the order substantially for the reasons given by Judge Peim. He applied Henderson to the first prong and thereafter performed a constitutional analysis of reliability under the second prong. But given the answer to the prosecutor's question, the State should be able to refrain from moving the case and await the Supreme Court decision in Henderson so that the matter can be reconsidered before jeopardy attaches at trial. Because of other evidence that apparently will be offered at trial, the State may desire to proceed to trial forthwith; that subject should be developed with the trial judge. In other words, the ...