August 13, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SYHIM JACKSON A/K/A SAHEEN RATRAY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-02-0097-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Collester and Graves.
Tried to a jury, defendant Syhim Jackson was convicted of second-degree eluding a law enforcement officer, contrary to N.J.S.A. 2C:29-2(b); second-degree aggravated assault for causing bodily injury while fleeing or attempting to elude a police officer, contrary to N.J.S.A. 2C:12-1(b)(6); third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7; and resisting arrest, contrary to N.J.S.A. 2C:29-2(a). The sentencing judge granted the prosecutor's motion for defendant to receive an enhanced sentence as a persistent offender. After merger of offenses, the court imposed an aggregate sentence of sixteen years incarceration with eighty-five percent parole ineligibility under the No Early Release Act (NERA). This appeal followed.
The facts adduced at trial were as follows. At about 9 p.m. on March 20, 2003, Union Township police officers responded to 2611 Vauxhill Road on a report of a car theft in progress. They were advised by the dispatcher that men in a white Jeep Cherokee were attempting to steal a maroon sport utility vehicle. When the officers arrived, the Jeep was parked at the curb with its lights on. The officers did not see a maroon vehicle, but did confirm that the white Jeep had previously been reported stolen. The officers executed a box maneuver to prevent the Jeep from fleeing the scene. Officer Thomas Florio pulled his patrol car diagonally in front of the Jeep while a second patrol car stopped directly behind the rear bumper. A third patrol car pulled over diagonally at the left side while a fourth pulled over head-on with the Jeep, closing the space between the first patrol car and the curb.
Officer Florio left his patrol car, approached the Jeep, and ordered the two occupants to get out. Instead, the Jeep moved forward, striking a telephone pole guide wire. Then it accelerated in reverse and rammed the patrol car behind it, causing it to ride up on the patrol car's front bumper and hood. As the Jeep accelerated forward, it swerved violently and struck Officer Florio in his right leg and hip, knocking him backwards to the pavement. Fearing for his safety, Florio fired a shot which shattered the driver side window, but the Jeep continued to ram back and forth in an attempt to escape. After more shots were fired by police, the passenger side door opened, and both occupants fled. Officers chased the two men to the rear of one of the houses on Vauxhall Road where they caught the passenger, later identified as Lavelle Burnett. However, they were unable to apprehend the driver. Police notified local hospitals that a suspect at large may have been shot and could seek medical attention.
Samantha Kennedy, a director of nursing with the Clifton Surgery Center, testified that at about 7:30 a.m. on April 1, 2003, an individual giving the name Rashem Renix appeared for a pre-scheduled surgery to remove a foreign object from his buttocks. After x-rays and fluoroscopic imaging revealed that the object was a bullet which had been present for at least a week, Kennedy notified local police. When officers arrived, defendant was taken into custody and subsequently identified as defendant Syhim Jackson.
A photo array was compiled consisting of the defendant and five other men and was shown to Officer Florio and his partner, Officer D'Allesandro, on April 3, 2003. D'Allesandro was unable to make an identification, but Florio selected defendant's picture and identified him as the driver of the Jeep.
Following his conviction and sentence, defendant filed a notice of appeal and submits the following legal arguments for our consideration:
POINT I - THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO PRECLUDE THE OUT OF COURT PHOTO IDENTIFICATION OF THE DEFENDANT, AND THUS, DENYING DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT II - THE COURT ERRED IN ADMITTING THE POLYGRAPH RESULTS INTO EVIDENCE AND THUS, DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III - DEFENDANT WAS PREJUDICED BY THE TESTIMONY OF DR. SIREN, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION. (Not Raised Below.)
POINT IV - THE TRIAL COURT'S CHARGE ON THE KEY ISSUE OF THE REQUISITE MENTAL STATE FOR CONVICTION OF AN ATTEMPT TO CAUSE BODILY INJURY HAD THE CAPACITY TO CONFUSE AND MISLEAD THE JURY, THUS DEPRIVING DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below.)
POINT V - THE COURT ERRED IN FAILING TO EXPLAIN THE GRADES OF THE RESISTING ARREST CHARGE, THUS, DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below.)
POINT VI - THE COURT BELOW ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED SENTENCE.
POINT VII - THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
As a result of defendant's pre-trial motion, the court conducted a Wade*fn1 hearing to determine the admissibility of Officer Florio's out-of-court identification of defendant as driver of the Jeep. Detective George Moutis conducted the photo array for Officers Florio and D'Allesandro. He testified that he had no prior knowledge of the facts of the case and did not select the photographs which comprised the array or know how they were selected. He said that he followed standard procedures by separately showing each officer the array. He stated that Officer Florio examined the photo array for approximately nine minutes before identifying the defendant and that he did so "with a high degree of certainty." The trial judge reviewed the photo array and found that neither the photographs nor the manner in which the array was shown to Florio was impermissibly suggestive so as to give rise to a substantial likelihood of irreparable misidentification.
An out-of-court identification must comply with due process standards. See, e.g., Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 2d 1247 (1968); State v. Adams, 194 N.J. 186, 203 (2008). And a two-step analysis has been prescribed to evaluate whether due process requirements have been satisfied. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed. 2d 140 (1977); State v. Herrera, 187 N.J. 493, 503-04 (2006). First, the court must determine whether the identification procedure under review was impermissibly suggestive, which is to be determined by the totality of the circumstances of the identification. See, e.g., State v. Madison, 109 N.J. 223, 232 (1988) (repetition of defendant's picture in an array indicates suggestibility); 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) (suggestibility demonstrated when photos selected for the array unfairly focused attention on the defendant); State v. Cherry, 289 N.J. Super. 503, 518-19 (App. Div. 1995) (use of multiple photographs of defendant posed informally in the array held to be suggestive). But see Madison, supra, 109 N.J. at 234-37 (multiple pictures of the defendant in the array is not per se impermissible). The issue is whether the identification was based on eyewitness recollection of the incident or unduly suggested by the way the identification procedure was conducted. Farrow, supra, 61 N.J. at 451.
The findings of the trial court following a Wade hearing are entitled to considerable weight on appeal and will not be disturbed when the judge's findings were based on substantial credible evidence in the record. State v. Cook, 330 N.J. Super. 395, 418 (App. Div.), certif. denied, 165 N.J. 486 (2000). The fact that Detective Moutis did not compile the array and did not know the source of the photographs supplied to him supports the admissibility of the identification. The Attorney General Guidelines for conducting identification based on photo arrays mandate that whenever possible, an independent officer show the array to the witness. Herrera, supra, 187 N.J. at 516 (Appendix A, Attorney General Guidelines). The testimony as to the identification procedure followed by Florio's positive identification convinces us that there was no error in admitting the out-of-court identification of defendant as the driver of the Jeep.
We next turn to defendant's argument that the court erred in permitting testimony of a stipulated polygraph examination including the examiner's opinion that defendant was deceptive in denying he was the driver of the Jeep.
Testimony at the Rule 104 hearing on admissibility disclosed that on the date of the polygraph, defendant was represented by counsel and that his attorney had been previously supplied with a copy of a five-page form stipulating to admission of the test results. On March 11, 2005, defendant came to the Union County Prosecutor's Office without his attorney to take the polygraph test. He spoke with Assistant Prosecutor Natalie Candela. Candela testified that the purpose of her meeting with defendant was to review the stipulation agreement with him to make sure that he understood it and voluntarily agreed to submit to the polygraph examination. When defendant arrived, Candela invited him into the office library and told him if he had any questions about the stipulation or the test, she would stop so that he could call and consult with his attorney if he desired to do so. Candela said she had no prior knowledge about defendant or the facts of his case. She began by explaining to defendant that the word "stipulation" meant an agreement with the State and defendant regarding the procedures of the polygraph and the use of its results. She told him he did not have to take the polygraph examination. She explained that if the results showed that he was lying, the State would introduce those results at trial. She also told him that if the test showed he was telling the truth, he could introduce the results at trial. Defendant said he understood.
Candela placed the stipulation form on the library table and tilted it so that defendant could read along as she read it out loud. After reading each paragraph, Candela stopped reading, explained the content in plain English, and asked defendant if he had any questions. When defendant expressed some concern with one of the paragraphs, Candela suggested that they stop so that defendant could go outside to call his attorney. Defendant left the library and came back within minutes to tell Candela he could not reach his attorney. Candela then called the attorney's office and asked the secretary to locate the attorney and have him call the prosecutor's office. At this point, the interview of defendant stopped.
Defendant's attorney called the prosecutor's office and spoke to Candela, who told him his client wished to speak with him and to call him on his cell phone. Defendant stepped into the hall to take the call. When he returned, he said he had spoken with his attorney and wished to continue to review the stipulation form and take the test. Candela noted on the form that defendant had spoken with his attorney and then continued to read and explain the stipulation. After she finished, defendant responded to her question that he had not been threatened or coerced in any way to agree to the polygraph. Defendant and Candela then both signed the stipulation agreement form.
Defendant next met with Detective Sergeant Kaminskas, the polygraph examiner. Kaminskas testified he reviewed a "permission form" with defendant to reaffirm that he was voluntarily submitting to the polygraph examination. After defendant signed the form, Kaminskas explained how the polygraph worked. He then administered the polygraph examination. He testified that he concluded defendant showed signs of deception when he denied being the driver of the Jeep which rammed police cars on the night of March 20, 2003.
Defendant testified at the Rule 104 hearing and acknowledged that he signed the stipulation form. He testified, however, he did not fully understand what Candela read to him before he took the test. Defendant admitted he had previously taken a polygraph test administered by an expert obtained through defense counsel and that prior to going to the prosecutor's office on March 17, 2005, he discussed with his attorney what would happen if he passed or failed the polygraph examination administered by Kaminskas. He also acknowledged that he spoke with his attorney on March 17, 2005, by phone before taking the test.
The trial judge found the testimony of Assistant Prosecutor Candela and Sergeant Kaminskas to be credible. He found that defendant was not credible in his testimony that he did not fully understand the written stipulation form or the polygraph examination. The judge found defendant voluntarily and knowingly submitted to the polygraph with the understanding that the results would be used at trial for him if he was adjudged truthful or against him if he was found deceptive. The court concluded that by the terms of the stipulation the results of the examination could be used against defendant at trial. Accordingly, Detective Kaminskas was later qualified as an expert before the jury, and he testified as to the administration of the polygraph that defendant was deceptive when he denied being the driver of the Jeep.
While this case was on appeal, we decided State v. A.O., 397 N.J. Super. 8 (App. Div. 2007), in which we held that results of a polygraph examination could not be admitted into evidence when the defendant entered into an uncounseled polygraph stipulation even when the defendant's Sixth Amendment right to counsel had not attached. Subsequently, the Supreme Court in A.O. affirmed this issue and exercised its supervising authority to bar the introduction of polygraph evidence based on a stipulation entered into by a defendant without counsel. State v. A.O., 198 N.J. 69 (2009).
In the course of its opinion, the Supreme Court reexamined its prior holding in State v. McDavitt, 62 N.J. 36 (1972), upholding the admission of polygraph results where a defendant told the jury mid-trial that he wished to take a polygraph examination and, after consultation with his attorney, agreed to do so. The Court held that these singular facts supported an exception to the general rule against admission of polygraph results when a stipulation is "clear, unequivocal, and complete, freely entered into with full knowledge of the right to refuse the test and the consequences involved in taking it." Id. at 46.
In A.O. the Supreme Court stopped short of eliminating the McDavitt exception.
Because we lack a factual record, we cannot fully address those issues today. However, a proper record will have to be developed in the trial court the next time a party seeks to introduce stipulated polygraph evidence, agreed to by both sides. That evidence should be introduced only if the parties can first establish its reliability in a N.J.R.E. 104 hearing. [State v. A.O., supra, 198 N.J. at 92.]
The facts of this case fall within the McDavitt exception. There is substantial credible evidence to support the trial judge's findings that the defendant understood the stipulation before signing it and that he voluntarily took the polygraph examination with full knowledge that the jury would be apprised of the results. While defendant's attorney was not physically present when the stipulation was reviewed and the test administered, defendant was given the opportunity to speak with him at any time prior to signing the stipulation and in fact did call and consult with his attorney before signing the stipulation agreement. Therefore, we hold that it was not error for the trial judge to permit results of the polygraph examination to be introduced into evidence by the State.
The remaining arguments raised by defendant relating to his conviction were not raised below and therefore are reviewed by us under the plain error standard, that is, whether the error alleged was clearly capable of producing an unjust result. R. 2:10-2. We find that the remaining allegations of error as to defendant's convictions are not sufficient to satisfy the plain error standard and, moreover, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
This State concedes that defendant is entitled to resentencing under State v. Pierce, 188 N.J. 155 (2006). We concur.
Affirmed. Remanded for resentence.