February 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDDIE VALENTINE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2346.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2010
Before Judges Sabatino, J. N. Harris, and Newman.
Defendant appeals from his conviction by a jury of first-degree robbery, N.J.S.A. 2C:15-1. The jury acquitted defendant of third-degree unlawful possession of a handgun without first having obtained a permit to carry, N.J.S.A. 2C:39-5(b), and second-degree possession of a firearm with a purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a)(1). Defendant also appeals his sentence, claiming it to be excessive. He received a fifteen-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We reverse the conviction and order a new trial due to the cumulative effect of the compounding missteps that occurred in the Law Division that appreciably erode our confidence in the jury's verdict. Significantly, because this case turned primarily upon the strength of the identification of defendant by the victim, we have reservations about the failure of defendant's trial attorney to press for and obtain a Wade*fn1
hearing. Although defendant did not testify in his own defense at trial, he presented an alibi defense and challenged the State's claim that he was present at the time of the robbery. These circumstances, along with multiple potentially problematic identification procedures employed by the police should have triggered the request for such a hearing by defense counsel, unless there was a reasonable strategic reason not to do so. Given our uncertainty as to whether defendant was deprived of fundamental tools necessary to foster an adequate defense, in addition to our apprehension that the trial court may have unintentionally misled the jury during deliberations through an uncorrected slip of the tongue, along with certain inflammatory comments of the prosecutor, we reverse and remand for a new trial.
On May 3, 2006, at approximately 6 a.m., taxicab driver Felix Ortega was radioed by his dispatcher to pick up a passenger at a Bryant Street address in Newark. A man, claimed by Ortega to be defendant Eddie Valentine, was standing in front of the address upon Ortega's arrival.*fn2 Ortega testified, "I managed to see his face." After getting into the back seat of the taxicab from the passenger side and immediately positioning himself behind Ortega, with his left hand remaining in his pocket, the passenger used his right hand to grab Ortega's jacket from behind and pulled Ortega backwards. The man allegedly told Ortega, "I have a revolver, and I want the money you have with you." Believing the man had a weapon in his pocket and "afraid for [his] life," Ortega turned over $70 in cash before the assailant fled the scene. Ortega testified that when he turned over the money, "he [the passenger] was like six or seven inches away, very close," and Ortega was again able to see the passenger, this time from that closer distance. At the trial, Ortega described his attacker as follows:
Q: This person who robbed you, what did he look like?
A: He had a black T-shirt on with yellow gold background and black band on his head.
Q: Was he tall or short?
A: My size more or less, 5'5", 5'6".
Q: Was he skinny or was he fat?
A: I think similar to me, more or less as fat as I am.
Q: Was he white, black, Hispanic, Asian?
A: He had a light skin, Hispanic.
Q: Did he have any facial hair, or how long was his hair on his head?
A: Well, it was short, not very, but it was short.
Q: Did he have any facial hair?
A: He had something. He hadn't shaved in several days.
After the robbery ended and his assailant ran away, Ortega immediately called his dispatcher who in turn called the police. When a police vehicle arrived on the scene, Ortega gave the responding officers a description of the assailant, which was recorded in a police report mentioned during trial, specifically indicating that the attacker was wearing a yellow (not black) shirt.
Ortega was brought back to the local police precinct where he remained for approximately one hour. Finally, Ortega was escorted by the police "downtown to the robbery department." The sequence of events that occurred next, and the police personnel involved, remains unclear.
Detective Anthony Lima took over the case that same morning, after the initial police report had been compiled. He was assisted by Detective Badim, who provided, among other things, translation assistance for Ortega.*fn3 After speaking with Ortega, who explained what happened and gave a description of his attacker, Detective Lima contacted the taxicab dispatcher to obtain the phone number that made the call that sent Ortega to Bryant Street. Detective Lima was trying to find out who actually called the taxicab company looking for a ride. Using a procedure known as "reverse lookup," Detective Lima discovered that the phone number was listed for an address on Lincoln Avenue in Newark, around the corner from where Ortega met his fare.
Detectives Lima and Badim drove to the Lincoln Avenue address and rang the doorbell, but since no one answered, they drove around the neighborhood in an effort to find the man fitting Ortega's description of the attacker. Instead of finding defendant, the detectives soon encountered Jessica Sotomayor outside of the house, which was actually the home of one of her friends. Sotomayor, upon questioning from the detectives, turned out to be defendant's girlfriend. She was looking for Valentine, as she had not seen him since the previous night when he allegedly went into New York with his brother-in-law.
After speaking with Sotomayor and based upon her description of Valentine, Detective Lima became convinced that her boyfriend was the suspect that the officers were looking for. Detective Lima testified, "[s]he got in our car with us, and we started to look around for her boyfriend, as well as our possible suspect." The three soon sighted Valentine standing on a corner near the scene of the incident. Sotomayor identified him as her boyfriend, and Detective Lima drove up to Valentine, who by then had approached the police vehicle inquiring as to why his girlfriend was in the company of detectives. After asking Valentine some basic questions regarding his recent whereabouts, Detective Lima noted that Valentine's "demeanor started to change rapidly with us, and he became  nervous, hesitating in his answers, started asking the same question repeatedly, and kind of shied with his answers."
Following their police intuition and coupled with "his [Valentine's] physical description with that particular shirt," the detectives "decided to stay with him" and took Valentine to the robbery squad as a "person of interest due to his general description." Valentine was neither under arrest at that time nor had he been administered any Miranda*fn4 warnings. However, at the time he entered the police vehicle, according to Sotomayor, Valentine was handcuffed.*fn5
While Detectives Lima and Badim were in search of Ortega's attacker, Ortega remained behind at the robbery squad. There, he apparently was given permission by an unidentified police officer to browse through images on a police computer of individuals who had been previously processed and whose photographs were digitally collected and organized by the police. Defendant argues Ortega was reviewing a digital mug shot book, but the exact format of the images, the number of images made available to Ortega to review, and the information accompanying them remain unclear after trial, due to conflicting testimony. A Wade hearing would have certainly clarified for the court the nature of what Ortega was doing while detectives were on the street looking for someone to charge. At some point during Ortega's alleged thirty-minute perusal of images, he found an image on the computer he believed to be the person who had attacked him earlier that morning, and he immediately advised an unnamed detective of this discovery.
The record is at odds as to whether Ortega found the image before or after Valentine came into the robbery squad with Detectives Lima and Badim. There also remains the question whether Ortega communicated what he identified, and whether it was defendant. Perhaps of even greater significance is the unanswered question of whether Ortega found the image even before Detectives Lima and Badim left for Lincoln Avenue in search of the assailant. On this issue, Ortega testified as follows:
Q: Okay. Now, they left, and you were at the police department looking at photographs; it that correct?
A: The photograph had already been identified. * * *
Q: And you were still at the police station- -at the robbery squad. I'm sorry.
A: The robbery squad.
Q: Okay. And it was at that time that you were looking at photographs in the computer?
A: I had identified it before they left. [Emphasis added.]
Nevertheless, as soon as Detectives Lima and Badim returned to the robbery squad with Valentine in tow, Detective Lima testified that Ortega "jumped right out of his chair and started pointing at him [Valentine], saying that that was the guy." Ortega, by his account, described the show-up encounter as follows:
Q: When the detectives returned, did you say anything to them?
A: They ask[ed] me whether that was him, and I told them that he was.
Q: When the detectives returned, who did they come back with?
A: With him. Based on the description I had given to them.
Q: Okay. When you say "him," who are you referring to?
A: The one who assaulted me -- who robbed me.
Valentine was immediately arrested and taken to a holding area for processing. Thereafter, Ortega provided an additional statement to the police and he signed and dated the backside of an instant photograph taken of Valentine immediately after the show-up identification and arrest. No weapons or money were found on Valentine's person at the time of his arrest, but the t-shirt that he was wearing was retained, along with the instant photograph, for evidence to be used at trial.
At trial, Ortega made an in-court identification of Valentine as the man who robbed him inside his taxicab on May 3, 2006. Ortega and Detective Lima testified as to the out-of-court identifications made by Ortega at the robbery squad and both asserted that Ortega had been looking at images on the police computer at some point that morning while Ortega was waiting for Detectives Lima and Badim to return from searching the streets. The t-shirt Valentine was wearing at the time he arrived at the robbery squad and the instant photograph taken immediately after his arrest were positively identified by both Ortega and Detective Lima at the trial.
Defendant presented an alibi defense through the testimony of his brother-in-law, Gregory Johnson (Johnson), who was allegedly with defendant on a train returning from New York at the same time the incident occurred. Sotomayor fortified the alibi defense only insofar as she confirmed that she had last seen Valentine on the evening before the incident and arrest as he was about "to go with Gregg to New York."
Despite the alleged discrepancies in Ortega's description of the individual who robbed him, and the concerns over whether or not the images on the police computer were mug shots, defense counsel did not pursue these issues in any detail at trial. While a claim of misidentification and the alibi were the cornerstones of defendant's case, defense counsel did not request a Wade hearing to determine the admissibility of the out-of-court identifications.
The existence of the assortment of dubious identification procedures and the use of photographs or digital images arose in the State's opening and closing arguments. The exact manner of how the police introduced Ortega to those processes and what controls, if any, were utilized to ensure fair treatment for the identification of the accused remain mysteries.
Notably, the jury expressed concerns about the uncertainties surrounding the identification procedures utilized in the case. During deliberations it asked, "We would like to see the testimony of Mr. Ortega regarding when and how he identified Eddie Valentin[e]; when did he [Ortega] see the picture of Eddie Valentin[e], before the police brought Eddie in or after?" The court's response to the first inquiry actually misstated the evidence, when it told the jurors:
There were two out-of-court identifications and the in-court. I'm assuming it's not the in-court identification. The first out-of-court identification was at the site of the alleged incident on Bryant and Lincoln Avenue in Newark, and the second would have been at the detective bureau at 22 Franklin Street. [(Emphasis added.)]
There is no evidence in this record that an identification process was initiated by the police with Ortega at the scene of the crime. Perhaps the court meant to say that the first observation of the attacker was at the site of the alleged incident on Bryant and Lincoln Avenue in Newark. However, in the context of the jury's question that plainly related to identification procedures, this unfortunate miscue cannot be dismissed lightly in a case so already marred by identification disputes and unanswered questions.
Mistaken identity was defendant's main focus and theory of the case. Ortega's identification therefore was the central issue regarding defendant's guilt or innocence. Yet, despite the magnitude of their significance, identification challenges largely were foregone by defense counsel and opportunities were lost that might have removed the obscurity and confusion that surrounded Ortega's actions at the robbery squad. A Wade hearing would have had the potential to eliminate the fog that enveloped the events of May 3, 2006. This is not to say that a Wade hearing inexorably would have resulted in either the development of evidence or obtaining of judicial rulings leading to the eventual acquittal of defendant on the robbery charge. Even so, the information gleaned from such a formalized inquiry might well have enabled defendant to further mount his misidentification theory and present a more robust defense to the jury. On the other hand, defense counsel may have purposely decided to forego a Wade hearing for strategic reasons so as not to forewarn the State's witnesses of potential errors or omissions in their testimony or the defense's theories.
A Wade hearing is not required in every case involving identification testimony. See State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd, 135 N.J. 3 (1994). To be entitled to a Wade hearing, a defendant must make a showing that the out-of-court identification process was "impermissibly suggestive." State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Although we believe that defendant was entitled to a Wade hearing, and conclude that one would have been preferable under the circumstances of this case, we are hesitant to second-guess defendant's trial attorney without having afforded him an opportunity to explain his rationale or trial strategy. Were it not for the other tangible errors that combine to require a new trial, we would likely be inclined only to remand for a limited hearing to explore defendant's allegations of ineffective assistance of counsel related to the unrequested Wade hearing.
We note as an aside, in New Jersey, principles governing eyewitness or victim identification procedures are currently undergoing review, and the reliability of certain identification procedures has been recently questioned by the Supreme Court. See State v. Henderson, 2009 N.J. LEXIS 45 (Feb. 26, 2009) (appointing the Special Master). Under currently applicable law, identification evidence will be deemed inadmissible where it is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 381, 34 L.Ed. 2d 401, 410 (1972). The reviewing court must first determine if the identification process was impermissibly suggestive, and secondly must decide whether the suggestive procedure was nevertheless reliable under the totality of the circumstances in which the identification took place. State v. Adams, 194 N.J. 186, 203 (2008) (citing State v. Romero, 191 N.J. 59, 76 (2007)). This involves "weighing the suggestive nature of the identification against the reliability of the identification." Ibid. (quoting Romero, supra, 191 N.J. at 76). Reliability is clearly the factor that must be focused on by the court to determine if the out-of-court identification may properly be introduced at trial. Id. at 204.
On appeal, this court is to give a trial court's findings on the admissibility of the identification considerable weight, yet still must conduct its own weighing exercise. Id. at 203. We must consider the "opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation." State v. Madison, 109 N.J. 223, 239-40 (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977)).
The first identification at issue in this case involves the compendium of computer images that Ortega may or may not have been exposed to while waiting at the robbery squad. There is a noteworthy discrepancy between Ortega's testimony and Detective Lima's testimony as to what identification was made and when. Ortega first testified that he was looking at various individuals' pictures on the police computer an hour or so after the incident, while Detective Lima and his partner were searching for defendant, and eventually identified a picture from the computer as his possible attacker. Later, on cross-examination, Ortega instead claimed that he identified the image even before Detective Lima left the robbery squad to find defendant, not while Ortega was waiting for the detectives to return, and was able to give the officers a description of his attacker. Conversely, Detective Lima testified that Ortega was looking at the computer as Detective Lima returned with defendant, at which time Ortega first affirmatively identified Valentine as the robber.
Unfortunately, the record does not allow us to conclusively decide whether the first investigative tool used by the police to find defendant--allowing Ortega to review an unknown number of images on the police computer--triggered the Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (Guidelines). We recognize that generally the use of a computer to develop an as-yet-to-be-determined suspect is a different investigative device from a photographic array. See State v. Janowski, 375 N.J. Super. 1, 6 (App. Div. 2005) (noting that photographic arrays typically contain a small number of photographs and the police typically have someone in mind when they prepare a photographic array to be shown to a witness). A photographic array is clearly subject to the Guidelines, but it is unclear from the record as to whether the computer images viewed by Ortega constituted a photo array. This issue, together with the potential application of the principles we are about to discuss, should be explored by the trial court in advance of a new trial.
There is a rebuttable presumption of impermissible suggestiveness if the police have deviated from the Guidelines. State v. Henderson, 397 N.J. Super. 398, 415 (App. Div.), certif. granted and denied, 195 N.J. 521 (2008). According to the Guidelines,*fn6 the "person conducting the photo or live lineup identification procedure should be someone other than the primary investigator assigned to the case." Guidelines § I(A). Additionally, the Guidelines instruct that photo lineups should include only one suspect, have a minimum of five "fillers" that generally fit the suspect's description, and that officers are to instruct the witness that the photo array may not include a photo of the perpetrator, and therefore the witness "should not feel compelled to make an identification." Id. at §§ I(B); I(E)(1)-(9). Investigators are additionally instructed not to say anything that would unduly suggest one photo over another, to refrain from influencing the witness's selection of a photo, and importantly, are required to explicitly document the photo lineup procedure, including:
a. Identification information and sources of all photos used.
b. Names of all persons present at the photo lineup.
c. Date and time of the identification procedure. [Id. at § II(A)(6).]
In this case, there was a lack of thorough questioning of both Ortega and Detective Lima regarding Ortega's supposed identification from the computer images, or whether there was ever any documentation made regarding this process. If there were, in fact, some sort of identification of defendant by Ortega from the computer images, there is no tangible indication that Ortega was pressured into selecting an image, specifically that of defendant, or that the police made unduly suggestive comments during the duration of the procedure. In fact, it appears that Ortega was simply left alone to examine an unknown number of images; he eventually "found a picture" and "told the detective" what he had found. Unfortunately, no record was made of this sequence of events, and no Wade hearing was requested or conducted to further explore the contours of this process to see if the Guidelines applied and were transgressed.
There is also the issue of the show-up identification, where Ortega--waiting at the robbery squad--immediately reacted upon defendant's entry into the room, identifying the presumably handcuffed Valentine as his attacker. This court has frequently noted:
[O]ne-on-one show[-]ups are inherently suggestive. These show[-]ups by definition are suggestive because the victim can only choose from one person, and, generally, that person is in police custody. Our case law recognizes, however, that standing alone a show[-]up is not so impermissibly suggestive to warrant proceeding to the second step. See State v. Wilkerson, 60 N.J. 452, 461 (1972) (upholding one-on-one identification by witness ninety minutes after observation). We have permitted on or near-the-scene identifications because "[t]hey are likely to be accurate, taking place, as they do, before memory has faded [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." Ibid. We are satisfied, however, that only a little more is required in a show[-]up to tip the scale toward impermissibly suggestive. [State v. Herrera, 187 N.J. 493, 504 (2006).]
Again, as is the case with the computer image identification process, no Wade hearing was conducted, and unfortunately, as a result, no testimony was elicited from either Ortega or Detective Lima concerning the circumstances surrounding the show-up. While it does not appear that the victim was coaxed into confirming that defendant was in fact the individual that attacked him inside the taxicab, the physical setting of the show-up and the surrounding circumstances raise concerns that this identification was unduly suggestive, particularly in light of the questionable timing of when Ortega actually viewed the computer images. When Ortega reacted to Valentine as he was accompanied by Detective Lima into the robbery squad, defendant was probably in handcuffs, in custody by the very detective assigned to Ortega's case, and the sighting took place at the robbery squad after Detective Lima went to search for Ortega's attacker. The potential for undue suggestiveness is obvious.
Between the persistent questions as to the accuracy and certainty of the victim's identification, and the concerns as to the possible prejudicial nature of the several identification procedures, this matter qualified for a Wade hearing. Such a hearing would have determined whether or not the police conducted a permissible computer mug shot review or rather a possibly unauthenticated photo array and a show-up identification, therefore impermissibly tainting Ortega's in-court identification of defendant.
Defendant argues that the prosecutor prejudicially inflamed the members of the jury by appealing to their intangible fears, continuously commenting upon the jurors' personal safety. For example, the State's opening argument urged jurors to consider their individual everyday circumstances, "[w]hen we go to work, we think we're going to be safe, safe to go there, safe to come home, safe from harm, from anyone trying to harm us." Arguably, this was related to Ortega's work-life experience of having been victimized in his work as a taxicab driver. In closing arguments, the State reminded the jurors that "we have the right to feel safe, have the right to feel safe when we go to work, travel from place to place, where we go to see our friends, have the right to travel around, go do our jobs without fear of being threatened, fear of being harmed, fear of being robbed." These alarmist comments, even in the deafening silence of no objection by defense counsel, have no provenance in our jurisprudence and must be avoided.
"[P]rosecutors... are expected to make vigorous and forceful closing arguments to juries[,]" State v. Frost, 158 N.J. 76, 82 (1999), and are afforded "considerable leeway" in their remarks, State v. Smith, 167 N.J. 158, 177 (2001). Furthermore, "[a] prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004).
However, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, supra, 167 N.J. at 181 (quoting State v. Frost, supra, 158 N.J. at 83); State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense" in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996) (internal citation and quotation omitted). Here, our solemn concern about overwrought fear-mongering requires us to conclude that the prosecutorial conduct was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971).
In our view, the prosecutor impermissibly shifted the focus away from whether the State had met its burden of proof to establish the statutory elements beyond a reasonable doubt, to the need to protect society from further harm in the future. This tactic is improper. See, e.g. State v. Rose, 112 N.J. 454, 520-21 (1988); State v. Buscham, 360 N.J. Super. 346, 364-65 (App. Div. 2003).
We also take note of defendant's arguments concerning his claim of entitlement to a jury charge that included language related to the use of a simulated weapon. We leave it to the trial judge at retrial to determine whether defendant is entitled to such a jury instruction. We note that after the trial in this matter concluded, the model jury charge for first-degree robbery has been supplemented in light of State v. Nero, 195 N.J. 397, 412 (2008) (noting that a purposeful mens rea is required for simulated weapon robbery). Again, we leave it to the principled discretion of the trial court to determine the ultimate instructions it believes to be appropriate to deliver at the conclusion of the retrial.
For the sake of completeness, we have considered the sentence imposed and find that the trial judge adequately invoked our State's sentencing calculus in weighing the appropriate aggravating and mitigating factors. See State v. Cassady, 198 N.J. 165, 180 (2009) (sentencing court is required to carefully weigh all the aggravating and mitigating factors, and explain on the record how it arrived at the sentence it imposed). Appellate review of a sentence is governed by the abuse of discretion standard. State v. Roth, 95 N.J. 334, 363-64 (1984). An appellate court should not substitute its judgment for that of the trial court, and the sentence imposed should be affirmed as long as it appears it is reasonably supported by the relevant factors. Id. at 365-66.
We will adjust a sentence only when the trial court's "application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." Id. at 364. We must also determine whether the aggravating factors found by the judge were based upon credible evidence in the record, ibid., and whether the judge gave defendant credit for all mitigating factors that were present, State v. Dalziel, 182 N.J. 494, 504-05 (2005).
Here, the trial court was well justified in finding no mitigating factors and in selecting aggravating factors three, six, and nine.*fn7 Defendant claims that because he is the father of a young child, he is entitled to the benefit of mitigating factor eleven.*fn8 However, an examination of the pre-sentence report and the transcript of the sentencing proceeding reveals no evidence as to how defendant's incarceration would entail excessive hardship to his child or to the child's mother.
But for the necessity of a new trial, the sentence imposed in this case withstands our scrutiny. We make no comment about the future imposition of an appropriate sentence in the event that defendant is convicted after retrial.
The matter is remanded for a new trial and other further proceedings in conformity with this opinion. We do not retain jurisdiction.