On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-10-2583.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...