On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-10-2294.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges Carchman and R. B. Coleman.
Following a jury trial, defendant Jermaine Harris was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4A; third-degree unlawful possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5B; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. After denial of the State's motion for an extended term and after appropriate mergers, defendant was sentenced to a maximum prison term of twenty years on the armed robbery charge with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (N.E.R.A.), N.J.S.A. 2C:43-7.2, and on the last weapons offense, to a consecutive term of ten years with five years parole ineligibility together with mandated fines and penalties. Defendant appeals, and we affirm.
These are the relevant facts adduced at trial. On the evening of August 5, 2005, Tair Jumaniyaazoe*fn1 was working alone at a Citgo Gas Station in Pleasantville, New Jersey at 10:30 p.m. As he was pumping gas, two men approached him and asked to buy cigarettes. Tair stepped inside the booth while the two men waited outside. As Tair was retrieving the cigarettes, the men stepped inside the booth. When Tair turned around, he observed one of the men pointing a gun at his lower back while the other man emptied the drawers looking for money. Tair indicated that both men were black males and both were approximately six feet tall. The gunman was wearing a white shirt, blue jeans, boots and a black hat with the letter "P" on it. The gunman had a thick beard and neck-length braids. The other man was wearing a white t-shirt and stone-washed blue jeans. He had a "fresh haircut" with a "thin" beard. Tair described the gun as "brown stock," old fashioned with a "long barrel" and a "classic."
The gunman took the cash from Tair while the second man took rolled change from the drawers and put them inside a Designer Shoe Warehouse (DSW) bag that had previously contained Tair's dinner. Tair estimated that about $116 to $130 in cash was taken. The men then cut the fax line and walked away from the gas station. The whole incident lasted approximately three minutes. After the two men left, Tair used his cellular phone to call the police. Immediately thereafter, at about 10:30 p.m., Pleasantville police officers arrived at the scene. Tair told the officers that he had been robbed, described the robbers and told them how the robbery had occurred.
Approximately twenty-minutes later, at about 10:50 p.m., Atlantic City K-9 Patrolman Salvatore Rando observed a red vehicle traveling in the opposite direction from the gas station. Patrolman Rando radioed for back-up and followed the car. The car eventually pulled over to the side of the road, and two passengers exited the vehicle. Defendant exited out of the driver's side, and an individual named Blair Williams exited out of the passenger side. Patrolman Rando approached defendant and Williams and spoke to them while awaiting back-up. Within seconds several officers arrived and "secured" defendant and Williams.
Patrolman Rando inspected the vehicle with a flashlight and "immediately" saw "a long barreled handgun" underneath the seat cushion on the passenger's side. Patrolman Rando also found a DSW bag between the two front seats with rolls of coins inside. At a later time, Pleasantville police officer Richard Henderson observed a black hat embossed with a "P" and a scarf in the back seat of the vehicle.
The Pleasantville police received notification that the Atlantic City police had located some suspects. Tair and another witness, Mr. Ernesto Santos, were driven to Atlantic City to view the suspects; they did not speak to each other while traveling. Once the two witnesses arrived in Atlantic City, defendant and Williams were taken out of the police vehicle. They stood in the street in full frontal view with their hands cuffed behind their backs and spotlights used for illumination. While sitting in the back seat of the patrol car, Tair and the witness identified defendant and Williams as the robbers. At the time, neither defendant nor Williams had neck length braids. Defendant and Williams were initially processed in Atlantic City.
The next day the two men were transferred to the Pleasantville Police Department to be processed. Defendant had $125, a "pair of jean shorts, a pair of olive Timberland boots, black doo rag, shoelaces, black belt, black wrist band, [and a] Timberland leather key chain." Williams had $25.
Defendant was tried separately and during the trial, Christopher Hallett, an investigator for the Atlantic County Prosecutor's Office, discussed all of the efforts he made in procuring the second witness, Santos. Investigator Hallett testified that he was assigned to the case and interviewed Santos on January 31, 2007. However, when Investigator Hallet made several attempts to contact Santos in preparation for trial, he was unable to do so.
Defendant testified at trial. Defendant stated that Blair Williams was a childhood friend that he had not seen in a while. He met Williams in Camden; and Williams invited defendant to his apartment to "catch up on old times." Once they were in the apartment, Williams stated that he wanted to go to a liquor store and pick up some cigars so they can "get reacquainted." Defendant had no idea where the liquor store or the Citgo gas station was in relation to Williams' apartment. Five to ten minutes later, Williams returned with nothing in his hands. Williams told defendant that they were going to drive to Atlantic City to pick up his girlfriend at work. Williams stated that he was late picking up his girlfriend "Pinky" and that he wanted defendant to drive so that they could use defendant's unfamiliarity with the area as an excuse for the lateness. Williams directed defendant, telling him exactly where to drive. Once they arrived in Atlantic City, Williams told defendant to make a right turn and to pull over. Defendant then assumed that they had arrived at their destination and exited the vehicle. At this point, they were stopped by K-9 Patrolman Rando. Defendant denied that he was at the gas station at the time of the robbery and claimed that he never saw the gun that was found in the car.
On appeal, defendant asserts:
POINT I THE POLICE OFFICERS' REPEATED REFERENCES TO THE PRESENCE OF A NON-TESTIFYING EYEWITNESS AT THE SHOW-UP WHERE DEFENDANT WAS IDENTIFIED AS A ROBBER, CONSTITUTED A BANKSTON ERROR. MOREOVER, THE COURT'S FAILURE TO GIVE THE JURY A CLAWANS INSTRUCTION SUA SPONTE, AFTER ALLOWING THE STATE TO ELICIT TESTIMONY FROM AN INVESTIGATOR IN ORDER TO JUSTIFY THE ABSENCE OF SUCH WITNESS, WAS ALSO ERROR. INDIVIDUALLY AND CUMULATIVELY, THESE CONSTITUTE VIOLATIONS OF DEFENDANT'S RIGHTS TO DUE PROCESS, A FAIR TRIAL, AND WITNESS CONFRONTATION, U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, ¶¶ 1, 9, 10. (Partially Raised Below).
A. Repeated References To The Presence Of A Non-Testifying Witness At The Show-Up Constitutes Bankston Error.
B. The Introduction Of Hearsay By A Non-Testifying Witness, Albeit By Implication, Violates The Confrontation Clause.
C. The Court Erred In Failing To Sua Sponte Charge The Jury Pursuant To Clawans.
POINT II THE "SHOW-UP" PROCEDURE USED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE AND DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10. (Not raised below).
A. The "Show-Up" Procedure Was Impermissibly Suggestive And Created A Very Substantial Likelihood Of Irreparable Misidentification.
B. Defense Counsel's Failure To Request A Wade Hearing On The Issue Of The Suggestiveness And Reliability Of The Out-Of-Court Identification ...