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State v. Myers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MUSTAMIR MYERS, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN FRAZIER, JR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-10-2583.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 23, 2010

Before Judges Grall, Messano and LeWinn.

Defendants Mustamir Myers and John Frazier, Jr., were tried to a jury on charges arising from the robbery of two victims on a street in East Orange and the flight and arrest that followed. The robbery victims are Abdul Shabazz and Rahmil Hall.

The jury found Myers guilty of first-degree robbery of Shabazz and Hall, N.J.S.A. 2C:15-1; not guilty of possessing a firearm without having obtained a permit, N.J.S.A. 2C:39-5c(1); not guilty of possessing a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a; and guilty of fourth-degree resisting arrest, N.J.S.A. 2C:29-2. Myers was sentenced to concurrent twelve-year terms of imprisonment for the robberies, both subject to terms of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent eighteen-month term for resisting arrest. The appropriate fines, penalties and assessments were imposed.

The jury also found Frazier guilty of first-degree robbery of both Shabazz and Hill, N.J.S.A. 2C:15-1; not guilty of the weapons offenses, N.J.S.A. 2C:39-5c(1) and N.J.S.A. 2C:39-4a; and guilty of fourth-degree resisting arrest, N.J.S.A. 2C:29-2. Like Myers, Frazier was sentenced to two concurrent twelve-year terms of imprisonment for the robberies, both subject to terms of parole ineligibility and supervision required by NERA, N.J.S.A. 2C:43-7.2, and to a concurrent eighteen-month term for resisting arrest. He too received the appropriate fines, penalties and assessments.

Myers filed an appeal docketed as A-6539-05, and Frazier filed an appeal docketed as A-2978-06. Due to the loss of the record of the final day of the two-day hearing on the reliability of the victims' identifications, we granted Myers' motion and remanded for reconstruction of the record of a pre-trial hearing. R. 2:5-3(f).

We now consolidate the appeals and reverse the convictions. Reversal of the convictions is required because the State was permitted to introduce Myers' inculpatory post-arrest statements. Moreover, because the judge's decision on the admissibility of the victims' identification of the defendants prior to and during trial is inadequate, a remand for a new hearing and factual findings would be required even if the convictions were not reversed.

At about 11:15 p.m. on May 5, 2005, Hall and Shabazz were walking home with take-out food. A red Cavalier, without the headlights on, pulled up to them. There were three men in the car. The two passengers got out of the Cavalier. One of the passengers had a gun; to Hall and Shabazz it looked like a shotgun. While the gunman pointed the weapon, his confederate checked Hall's and Shabazz's pockets. After taking a cell phone from Shabazz and five to six dollars and a Pepsi from Hall, the perpetrators got back into the red Cavalier, and the driver took off.

The car was driven away in the wrong direction on a one-way street. Hall and Shabazz are cousins, and they were both living with Hall's mother at the time. They left the scene and went home, and Mrs. Hall called the police.

Officer Fletcher went to the victims' home, and interviewed Hall and Shabazz together in the living room. According to Fletcher's report and his testimony at trial, they told him that the gun was a black handgun and the red Cavalier was a two-door car. Fletcher was subpoenaed to testify for the defense, and there is no indication that he was called as a witness by the State at the pre-trial hearing. According to Fletcher, Shabazz and Hall did not have the number of the Cavalier's license plate, and were not asked about and did not mention the perpetrators' hairstyles. They described the robbers as black, dark-skinned men both about five feet and seven inches tall and both wearing black hooded sweatshirts.

According to Hall, he and his cousin gave the "best description that [they] could at the time." He recalled describing the robbers as "two males with dreadlocks and dark skin." Both victims recalled telling the officer that the robbers had dreadlocks and that the firearm was a shotgun.

Detectives Ricks and Johnson were on patrol that night and heard a dispatch relaying information about the robberies and the perpetrators who left the scene in a red Cavalier. Later, at about 12:35 a.m., the detectives saw a red Cavalier and followed it. After confirming that the case was still open, they used their unmarked car's grill lights and sirens to signal the driver. The driver did not stop, and the detectives pursued the car until it crashed. They saw three men get out of the car and flee. They understood that the perpetrators had dreadlocks and that the firearm they had used was a shotgun.

According to the detectives, the defendants went in different directions and were apprehended by different officers. Detective Johnson arrested Myers and Detective Ricks arrested Frazier. Both had assistance from officers who arrived at the scene. The driver, who also ran, escaped.

Myers testified at trial and explained his presence at the scene and described his arrest. He and Frazier had been to a club and were on their way to a store when Myers saw a red Cavalier come speeding down the street. He heard a noise that sounded like something dragging from the bottom of the car, and he heard sirens. Myers saw the driver lose control of the car and noticed that the passengers had dreadlocks. He also saw the men in the vehicle leave the car and flee before the police arrived. Myers, like the passengers in the Cavalier, had dreadlocks, and he was a few doors down from the spot where the car crashed. Detective Johnson came up to him with a gun, and Myers laid down on the ground. While he was down, he was kicked in the stomach and the head and lost consciousness. When he came to, his hands were cuffed and he was across the hood of a police car.

Detective Johnson gave a different account of the arrest. Yelling "Stop! police," he chased Myers for about seventy-five to one hundred feet. Although Myers had not stopped immediately, when Detective Johnson reached Myers he was on the ground with his hands under his chest. The detective had to struggle to free Myers' arms and get the handcuffs on.

Detective Ricks pursued Frazier into a backyard. He arrested and handcuffed Frazier after a struggle.

The physical evidence linking Myers to the crime was a Motorola cell phone that Shabazz identified as his. Detective Ricks "believe[d] a cell phone was found on [Myers'] person." Although Ricks did not arrest or search Myers, at trial he identified a photograph of the Motorola cell phone as follows: "It appears to be a cell phone that Mr. Myers had on his person." Detective Johnson "believe[d]" the officers saw the cell phone "in the car." He did not recall where or by whom the phone was recovered, however, and there was no other testimony on that point. Defense counsel objected to the prosecutor's description of the cell phone during the State's closing argument. The prosecutor said "they had the cell phone"; "[t]hey got the victim's property on them an hour an a half after the robbery."

Shabazz and Hall were brought to the scene of the crash. There, they identified the getaway car and Shabazz identified the Motorola cell phone, which he was told the police had recovered. The phone component on which the user information is stored was missing.

It is not clear whether the defendants were still at the crash site when the victims arrived. According to Detective Johnson, the defendants were still there, and he understood that Shabazz and Hall had identified them there. According to Detectives Ricks and Witkowski and Shabazz and Hall, however, the defendants had already been taken to headquarters when the victims arrived. In any event, Shabazz and Hall were taken from the scene of the crash to headquarters to identify the perpetrators from photographs.

Shabazz and Hall were not shown a photo array, and they were not shown suspects in a line-up. They were both shown two Polaroid photographs - one of Myers and one of Frazier. The photographs were shown to Hall and Shabazz separately, but the victims made the identifications while seated at different desks in the same room that were no less than twelve and no more than thirty feet apart.

The detectives did not tell Shabazz or Hall that the photographs were pictures of the men who had run from the Cavalier after the crash, but the victims identified the men depicted as the two who had robbed them. According to Shabazz, Frazier held the gun.

Both Hall and Shabazz admitted that the spot where they were robbed was dark. It was between parking lots, and there were lights in the lots, but some of the street lights were broken. The Cavalier's headlights were not on, and they were not near buildings that illuminated the area where they were accosted. The victims were able to tell that the gun was black with a brown handle and to describe the hairstyles of their assailants who wore black caps. At trial, one of the cousins admitted that he was focused on the gun, but both Shabazz and Hall testified that they were certain that Frazier and Myers were the men who robbed them. During the robbery, they were in close proximity to and stood face-to-face with their assailants.

The State also introduced evidence about Myers' post-arrest participation in a search for the firearm conducted by the police. At trial, Detective Johnson testified he initiated the conversation with Myers about the gun, and Myers told him "he" threw the gun out the window. Johnson asked where, and defendant said on Route 280. Detective Johnson took Myers with him when he and other officers went to look for the weapon; he and Myers were not in the same car. Although Detective Johnson testified that the officers went where Myers told them to go, the officers, who were in the police car with Myers, did not testify.

According to Myers' testimony, when he and Detective Johnson spoke in the debriefing room, Detective Johnson told him that Frazier had said where the gun was thrown and that Myers had held it during the robbery. On cross-examination by Frazier's attorney, Myers testified that he had not seen Frazier at headquarters and would not know if Frazier had said anything about the gun to Detective Johnson. Myers said he was directed to go with the officers on the search for the gun and had no choice.

In any event, the firearm was not found during the expedition. The rifle introduced into evidence at trial was found the next day along the route that had been taken during the pursuit of the red Cavalier as described by the detectives. It was black and brown. Although Shabazz and Hall had given statements describing the gun used in the robbery as a shotgun, they were able to identify the rifle as the firearm that was brandished.

On appeal Myers raises six issues:

I. THE DEFENDANT'S STATEMENTS IN REGARD TO THE LOCATION OF A WEAPON SHOULD HAVE BEEN EXCLUDED BECAUSE THE POLICE CONDUCTED A CUSTODIAL INTERROGATION WITHOUT ISSUING MIRANDA WARNINGS.

A. The police conducted a custodial interrogation of defendant without issuing the Miranda warnings.

B. Alternatively, any statement made after the defendant asserted his right to remain silent should have been excluded.

II. THE PROSECUTOR'S CROSS-EXAMINATION WAS GROSSLY IMPROPER, REPLETE WITH PREJUDICIAL ERROR, AND VIOLATED THE DEFENDANT'S RIGHT TO REMAIN SILENT.

III. THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY IN SUMMATION, WHEN HE ACCUSED THE DEFENDANT OF LYING, AND APPEALED TO THE JURY TO SEE THAT JUSTICE WAS DONE BY CONVICTING. (Not Raised Below).

IV. THE DEFENDANT WAS DENIED HIS RIGHT TO DUE PROCESS BY THE LOSS OF [THE] RECORD OF A CRITICAL DAY OF WADE HEARING TESTIMONY, AND BY THE ADMISSION OF IDENTIFICATION EVIDENCE THAT RESULTED FROM AN IMPERMISSIBLY SUGGESTIVE PROCEDURE RENDERING SAID IDENTIFICATIONS UNRELIABLE.

A. Because the court failed to conduct a meaningful reconstruction hearing, the defendant was denied his right to due process.

B. Both the out-of-court and in-court identifications should have been excluded because they resulted from a highly suggestive photographic procedure that rendered all identifications unreliable.

V. THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED THE DEFENDANT A FAIR TRIAL. (Not Raised Below).

VI. THE COURT FAILED TO CONSIDER RELEVANT MITIGATING FACTORS WHICH, WHEN TAKEN INTO ACCOUNT, INDICATED THAT THE STATUTORY MINIMUM SENTENCE WAS APPROPRIATE.

Frazier presents four issues for our consideration:

I. THE TRIAL COURT ERRED AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS BY PERMITTING BEFORE THE JURY TAINTED OUTOF-COURT AND IN-COURT IDENTIFICATIONS.

II. THE TRIAL COURT'S IDENTIFICAITON CHARGE WAS IMPROPER.

III. PROSECUTORIAL MISCONDUCT AND IMPROPER COMMENTS BEFORE THE JURY DENIED DEFENDANT A FAIR TRIAL.

IV. DEFENDANT'S SENTENCE IS EXCESSIVE AND IMPROPER.

In a pro se supplemental brief, Frazier also asks us to address the following claims:

I. THE TRIAL COURT ERRED IN REFUSING TO DISMISS/AMEND COUNT 1 AS TO ARMED ROBBERY SINCE DEFENDANT WAS FOUND NOT GUILTY ON ALL WEAPONS CHARGES.

II. DEFENDANT['S] CONVICTION FOR FIRST[-] DEGREE ARMED ROBBERY MUST BE VACATED DUE TO THE JURY VERDICT OF NOT GUILTY ON ALL WEAPON OFFENSES.

III. THE TRIAL COURT[']S INSTRUCTIONS TO THE JURY WERE FATALLY FLAWED BECAUSE THOSE INSTRUCTIONS DID NOT ADEQUATELY EXPLAIN THE ELEMENTS OF THE ROBBERY STATUTE AND DID NOT RELATE THOSE ELEMENTS TO THE FACTS OF THIS CASE.

IV. THE ACCUMULATION OF ERRORS AT TRIAL AND PRIOR TO TRIAL REQUIRES A REVERSAL OF CONVICTION.

I.

Myers contends that the evidence of his participation in the search for the gun was improperly admitted because his assistance was a product of questions impermissibly posed after he invoked his right to remain silent. We agree. There is no dispute that Detective Johnson questioned Myers about the gun after he was in custody. During the portion of the pre-trial hearing that was transcribed, the State conceded that Detective Johnson conducted a custodial interrogation at the end of the first of the two-session evidentiary hearing.

To admit a statement obtained during custodial interrogation, the prosecution must demonstrate that the defendant was informed in accordance with Miranda and knowingly, voluntarily, and intelligently waived his or her rights. Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed. 2d 694, 726 (1966); State v. O'Neill, 193 N.J. 148, 168 (2007). "'[T]he New Jersey common law privilege against self-incrimination affords greater protection to an individual than that accorded under the federal privilege.'" State v. A.G.D., 178 N.J. 56, 67 (2003) (quoting In re Grand Jury Proceedings of Guarino, 104 N.J. 218, 229 (1986)). Thus, under the law of this State, the prosecution "'must prove beyond a reasonable doubt that the suspect's waiver [of the privilege against self-incrimination] was knowing, intelligent, and voluntary in light of all the circumstances.'" Ibid. (quoting State v. Presha, 163 N.J. 304, 313 (2000)). "Once the right to remain silent has been invoked it must be 'scrupulously honored.'" State v. Johnson, 120 N.J. 263, 282 (1990) (quoting Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S.Ct. 321, 325-26, 46 L.Ed. 2d 313, 320-21 (1975); Miranda, supra, 384 U.S. at 467, 86 S.Ct. at 1624, 16 L.Ed. 2d at 719; State v. Bey, 112 N.J. 45, 66 (1988); State v. Hartley, 103 N.J. 252, 260-61 (1986)); see State v. Kennedy, 97 N.J. 278, 288 (1984).

The State presented the following evidence at the hearing conducted on Myers' motion to suppress. At headquarters, Frazier was placed in a holding cell and Myers was taken to a "debriefing room" in the basement. According to Detective Ricks, Myers was handcuffed to a chair and given the advisements required by Miranda. Detective Ricks testified that Myers responded by saying he knew his rights already and telling the detective that he "had nothing to say to [him]."

When Detective Johnson came into the room, Detective Ricks, who had started to write his report, did not tell Detective Johnson that he had recited the Miranda warnings to Myers or that Myers had told him he did not have anything to say.

Detective Johnson admitted that he asked Myers where the gun was without giving him Miranda warnings. He explained that he spoke to Myers because he had seen Myers and Frazier on the street corner when he was a patrolman. He did not know Myers by name.*fn1

According to Detective Johnson's testimony at the pre-trial hearing on Myers' motion to suppress his statements, Myers told the detective the "driver" had thrown the shotgun out the window, and Myers took the officers to Route 280 "close to Exit 15" and then to another location. Detective Johnson responded affirmatively when the prosecutor asked whether defendant offered to take him to the spot, but did not say how Myers expressed the "offer." When defense counsel asked whether Detective Johnson was "saying that it was [Myers'] suggestion that he take [Johnson] for a ride," the detective did not give a direct response. He said: "I just asked where was the weapon, that's it." In response to defense counsel's second attempt to clarify the point, Detective Johnson gave a similar response - "I just asked where the weapon was at."

Crediting Detective Ricks' testimony, the judge found that Myers was advised in accordance with Miranda and said he had "nothing to say." Defense counsel argued that once Myers told Detective Ricks he had nothing to say, further inquiry by Detective Johnson was impermissible. The judge rejected that argument. He explained: "That does not mean a person is precluded from ever waiving these rights." He found the essential waiver based upon the following: "[A]fter some time Mr. Myers expressed to the officers that he could take them to possible locations where a weapon could be found"; "Mr. Myers knew his rights, understood them and waived them when he spoke to the officer[] indicating that he wanted to attempt to go with him to locate this particular weapon that's the subject of this matter."

"[A] suspect who [says he] has 'nothing else to say,' or who '[does] not want to talk about [the crime],' has asserted the right to remain silent, thereby requiring the police immediately to stop questioning." Johnson, supra, 120 N.J. at 281 (internal citations omitted). Even when the invocation is ambiguous - for example, an assertion such as "I can't talk about it," which can be "an expression of either emotional reluctance to admit guilt or the desire to cut off questioning," - the police must "stop the interrogation completely, or [ask] only questions narrowly directed to determining whether [the] defendant [is] willing to continue." Id. at 284. There is a bright-line rule that the police must follow and the trial judges must apply: fresh Miranda warnings must be given before custodial interrogation of a suspect who has been warned and invoked the right to remain silent. Hartley, supra, 103 N.J. at 267-69. Myers' exercise of his right to remain silent was not equivocal.

Whether or not Detective Johnson knew that Myers had invoked his right to remain silent when he spoke to Detective Ricks, Detective Johnson is chargeable with the knowledge of Myers' unequivocal invocation of his right to remain silent. To hold otherwise would permit the police to circumvent their obligation to "scrupulously honor" an invocation of the right to remain silent. See People v. Medina, 375 N.E.2d 78, 80 (Ill. 1978). Thus, the trial judge's decision to admit testimony about what Myers said prior to and during his participation in the search for the firearm is based on a misunderstanding of the law. Johnson and Hartley required exclusion.

For the first time on appeal, the State argues that we should uphold the admission of this evidence based upon a public safety exception to Miranda. In State v. O'Neal, 190 N.J. 601, 616 (2007), the Supreme Court "provide[d] guidance concerning the safety exception to Miranda." It "is based on the 'objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon.'" Id. at 616-17 (quoting New York v. Quarles, 467 U.S. 649, 659 n. 8, 104 S.Ct. 2626, 2633, 81 L.Ed. 2d 550, 559 (1984)). The exception is narrow and is "'circumscribed by the exigency which justifies it.'" Id. at 617 (quoting Quarles, supra, 467 U.S. at 658, 104 S.Ct. at 2633, 81 L.Ed. 2d at 559). And, in acting pursuant to this exception, police must fashion questions "necessary to secure their own safety or the safety of the public"; they may not ask "questions designed solely to elicit testimonial evidence from a suspect." Quarles, supra, 467 U.S. at 658-59, 104 S.Ct. at 2633, 81 L.Ed. 2d at 559.

The core principle supporting the public safety exception is that the exigency of a threat to safety outweighs the need for the "prophylactic" benefit of Miranda. Id. at 657, 104 S.Ct. at 2633, 81 L.Ed. 2d at 559. We fail to see how that principle has any relevance to excuse custodial interrogation at the police station after the suspect has been removed from the scene and invoked the right to remain silent. In our view, the cases which the Court cited with approval in O'Neal do not support an application of the exception here. 190 N.J. at 616-18.

We recognize that Frazier does not have standing to seek relief on the basis of a violation of Myers' right to remain silent. State v. Baum, 199 N.J. 407, 417 (2009). He does not claim otherwise or seek relief on that basis. Nonetheless, evidence of Meyers' participation in the expedition to search for the gun along the route taken by the robbers while the police were in pursuit would not have been admitted in Frazier's trial if the co-defendants had been tried separately, and the judge did not direct the jurors that they could not consider Myers' statement against Frazier. In similar circumstances, the Supreme Court has held that where statements were but should not have been admitted against the defendant who made them, "the possibility... that the statements played a part in the convictions of [the co-defendants warranted] reversal of [the co-defendants'] convictions as well." State v. Tassiello, 39 N.J. 282, 299 (1963) (declining to penalize one co-defendant for a judicial error related to the other). Given Myers' denial of the statements and of his willing participation in the search, we cannot view Frazier's opportunity to cross-examine Myers as eradicating the potential prejudice.

We have a reasonable doubt about whether the verdict would have been different without evidence that Myers told the officers where to look for the gun. R. 2:10-2; Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 827-28, 17 L.Ed. 2d 705, 710-11 (1967); State v. Castagna, 187 N.J. 293, 312 (2006). That evidence tended to establish that Myers, and inferentially Frazier, were in the red Cavalier after the robberies and knew the route taken during the pursuit. Apart from the victims' identifications and the detectives' testimony identifying Myers and Frazier as the men who fled from the Cavalier and the cell phone inside, there was no competent evidence of their involvement in this crime.

II.

There is a second reason why we cannot affirm the convictions of either defendant. Defendants argue that Shabazz and Hall identified their photographs under circumstances that were so impermissibly suggestive as to require exclusion of that evidence and any identification at trial. They are entitled to a new evidentiary hearing on that claim.

Ordinarily, our review of the trial judge's ruling on the identification evidence is deferential. We must afford "very considerable weight" to the trial judge's findings on admissibility. 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). In this case, the record and the judge's decision are inadequate to permit such deference.

The trial judge accepted testimony on defendants' challenge to the identification on two separate days. On the second day, the judge also stated his reasons for allowing the State to admit the evidence. Unfortunately, as noted at the outset of this decision, the record of the second day of the proceedings was lost and cannot be transcribed.

Although we granted Myers' motion for a remand to reconstruct the record, R. 2:5-3(f), we received only a transcript of the reconstruction. The transcript includes no information on the following: the identity of the witnesses; whether the defendants were given access to the photographs the victims identified at the second hearing, which is a fact critical to us because the defendants had not yet been given access to the photographs at the time of the first hearing; or police reports on the victims' various descriptions that were available to the defendants. The only witness mentioned by name is one who testified at the first hearing, Detective Witkowski.

During the first day of the hearing, Detective Witkowski was not subjected to cross-examination. Moreover, by her testimony she had personal knowledge of the identification made by Hall but not of the identification made by Shabazz. Because the reconstruction of the record has left us without any means of identifying the evidence presented, we are not in a position to assess it.

More important, even if we had a reconstructed record of the evidence, we do not have a statement from the judge setting forth the factual findings that support his legal determinations. In fact, the transcript of the reconstruction hearing demonstrates that the trial judge was not in a position to reiterate his factual findings.

The judge's decision as restated at the time of reconstruction was as follows:*fn2

The more we talk about it, the more memories are refreshed.

[T]here was an issue of the photograph[s] used and the time frame in between the incident and the identification and whether or not it was suggestive because of the two photographs that were shown in determining the admissibility of the testimony concerning the out of court identification. Looking at my notes I applied the factors enumerated in Neil v. Biggers, [409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d 401 (1972)], those being the opportunity of the witness to view the defendant or the defendants at the time[:] the testimony was that this was an incident where the defendants rolled up on the victims in their car, got out of their car and confronted them indicating that they needed to turn over their property to them or something would happen to them.

Also, the witness's degree of attention as the facts were testified to.

This was a strong armed robbery. There was a weapon used. Although the weapon alleged by the State to have been used the jury determined it was not necessarily that weapon but they determined a weapon was used, but the weapon that was recovered - I think the jury had reasonable doubt as to whether or not that was in fact the weapon that the defendants possessed at the time.

[Prosecutor's interjection omitted.] The victim's description including any discrepancy between the initial description and their actual appearance.

The level of certainty that was indicated by Mr. Shabazz[:] at least he could clearly identify the defendants when either shown a photograph or saw them in person and the length of time between the time and confrontation which was at the most

- I don't have it here - twelve hours at the most.

[Prosecutor's interjection omitted.] Then after going through that analysis and listening to the proofs and testimony presented by the State, I found that under the totality of the circumstances the identification utilized in this particular case was not so suggestive as to taint the out of court identification and the motion... was denied. By that I meant that the identification of the defendant[s] does not in any way, shape or form - by that I mean the way it was presented and the way it was conducted did not deny the defendants due process.

... [T]hat's the best we can reconstruct at this point.

The standards under which a trial judge is obligated to assess the evidence is well-settled. It is a "two-pronged approach." State v. Adams, 194 N.J. 186, 203 (2009). The first prong requires a determination as to "'whether the identification procedure was impermissibly suggestive.'" Id. at 203 (quoting State v. Romero, 191 N.J. 59, 76 (2007) (quoting State v. Herrera, 187 N.J. 493, 503 (2006))).

The second prong must be applied when the judge determines that "the procedure is found to be impermissibly suggestive." Id. at 204. The question under the second prong is whether the identification is reliable despite the "impermissibly suggestive procedure." Ibid. (internal quotations omitted). The determination requires a "'consider[ation of] the totality of the circumstances and [a] weighing [of] the suggestive nature of the identification against the reliability of the identification.'" Ibid. (quoting Romero, supra, 191 N.J. at 76). The factors relevant to reliability are:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Ibid. (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977))].

"When the balance of the factors indicative of reliability and the corrupting effect of the highly suggestive words or conduct discloses a very substantial likelihood of misidentification, then the evidence of that identification must be excluded." State v. Chen, 402 N.J. Super. 62, 83 (App. Div. 2008), certif. granted, 197 N.J. 477 (2009). The remedy is greater when the judge finds "a very substantial likelihood of irreparable misidentification"; in that circumstance, the identification that is a product of the suggestive procedure, identification evidence obtained subsequently and any in-court identification also must be excluded. Adams, supra, 194 N.J. at 199, 203-04.

From what we can glean from the reconstructed record, the judge may have determined that the State employed a show-up procedure before the photographic identification. The testimony at trial did not require that finding, but it was sufficient to permit it. If that is so, the victims identified the defendants in a show-up near the crashed Cavalier and after they had learned that Shabazz's phone had been recovered and the men in the Cavalier had run away. It is clear that a show-up procedure conducted under those circumstances is impermissibly suggestive. See Herrera, supra, 187 N.J. at 504 (noting that a show-up is inherently suggestive and that only a little more is required to make use of that procedure impermissibly suggestive).

The procedure employed during the photographic identifications was also impermissibly suggestive, as a matter of law. See Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 970-71, 19 L.Ed. 2d 1247, 1252-53 (1968) (discussing suggestive practices employed in photo identifications such as display of the picture of a single individual and the showing of the photograph after the witness has been told that there is other evidence linking the suspect to the crime). Here, the victims were shown two Polaroid photographs, one of each defendant. They were shown those photographs after they left the scene of the crash, saw the Cavalier and saw the cell phone the police found.

This photo-identification procedure not only involved a resort to practices that have been condemned as highly suggestive but also was wholly non-compliant with Guidelines promulgated by the Attorney General several years before thee crimes were committed. See Adams, supra, 194 N.J. at 201-02. Without question, the procedure used here was far more suggestive than the one the State conceded was impermissibly suggestive in Adams. See id. at 193 (noting that the officer showed a stack of single photographs one at a time that included photographs of defendant and other men).

In this case, there is an obvious need for a careful consideration of the factors relevant to reliability and whether those factors could sufficiently outweigh the extraordinarily suggestive procedures employed by the police. Unless the factors relevant to reliability weigh heavily in favor of reliability, the procedures are sufficiently and impermissibly egregious to pose a very substantial likelihood of irreparable misidentification.

For all of those reasons, we conclude defendants are entitled to a new hearing followed by a full consideration of the evidence. Even if we were not reversing defendants' convictions based upon the erroneous admission of Myers' confession, we could not affirm these convictions without remand for an adequate hearing on the identification evidence to resolve the disputed facts.

Our disposition of the case makes it unnecessary for us to address the remaining issues raised by defendants on appeal. The prosecutor who tried the case should not mistake our decision to forego discussion of the allegations of excess and overreaching on his part as approval of the manner in which he represented the State.

Reversed and remanded for a new trial and related proceedings in conformity with the opinion.


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