November 30, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY BELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-01-0042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2011
Before Judges Carchman and Baxter.
Defendant Anthony Bell appeals from his August 15, 2008 conviction on charges of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of CDS, N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and 2C:35-5(b)(3) (count three). After merging counts and one and three with count two, the judge sentenced defendant to a four-year term of imprisonment. On appeal, defendant raises the following claims:
I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO DISCLOSE THE FACT THAT A POLICE EYEWITNESS NEVER LOST SIGHT OF THE DEFENDANT BETWEEN THE TIME OF THE DRUG SALE AND THE TIME OF THE ARREST, THEREBY DEMOLISHING THE DEFENDANT'S MISIDENTIFICATION DEFENSE.
II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE. (NOT RAISED BELOW)
III. THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶ 10 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, ¶ 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S RULING BARRING THE DEFENSE FROM IMPEACHING THE POLICE ON THE BASIS OF THEIR FAILURE TO ADHERE TO PROPER IDENTIFICATION PROCEDURES.
IV. THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.
On November 1, 2006 at approximately 9:30 p.m., Detectives Robert Bernard, Gami Cruz and Paul Shadinger, each with a minimum of thirteen years experience in law enforcement, were conducting an undercover narcotics surveillance operation in the City of Vineland when they were approached by a man on a bicycle. The man, later identified as defendant, asked Bernard if he was "straight," which the detective explained is "a street term" that refers to an individual seeking to purchase CDS. After answering in the affirmative, Bernard told defendant he wanted to purchase $20 worth of crack cocaine.
Defendant then rode approximately 100 yards down the street, which was well lit, toward a vacant building, where he met with two other individuals, and returned to the detectives a few minutes later. Between the time defendant rode away and the time he returned, Bernard never lost sight of him. When defendant returned, he was accompanied by a Hispanic male, later identified as Nelson Perez. Cruz testified that he had known Perez "since [he] was a baby," and notified Bernard accordingly, so that when Perez and defendant approached, Bernard adjusted his position to block Perez's view of Cruz.
After a brief conversation, Bernard handed Perez $20. Perez signaled to defendant, who proceeded to place a quantity of crack cocaine on the hood of the unmarked police vehicle. Perez and defendant then left. During the transaction, defendant was no more than ten feet from the three detectives, who had an unobstructed view of him.
After completing the purchase of CDS, Bernard returned to police headquarters, leaving Cruz and Shadinger behind. Shadinger called dispatch and requested that a uniformed officer be sent to their location. After a few minutes, Officer David Serlick, a uniformed bicycle officer, arrived on the scene. Cruz testified that from the time Detective Bernard left and Patrolman Serlick arrived, he, Cruz, was "keeping constant visual eye contact on the defendant," adding that there was no one in the vicinity who was dressed in a manner similar to defendant. By the time Serlick arrived, Perez had left the area, but defendant had not.
Cruz and Shadinger described defendant and pointed out his current location, instructing Serlick to approach defendant to try to ascertain defendant's identity. While speaking with Serlick, both Cruz and Shadinger "pulled back a little bit" to prevent defendant from seeing them talking to a uniformed police officer; Cruz testified that he could still see "a little bit" of defendant. Cruz explained that the conversation between himself, Shadinger and Serlick lasted no more than thirty seconds. Cruz and Shadinger watched as Serlick approached defendant, at which point they surreptitiously signaled to Serlick that he was speaking to the correct person.
After the State completed its direct examination of Cruz, defendant moved for a mistrial based on unfair surprise, arguing that he "received nothing from the State concerning that Detective Cruz . . . . never lost sight of [defendant]" prior to the time defendant was approached by Serlick. Defense counsel noted that he had been provided with a report authored by Shadinger stating merely that while he, Shadinger, "had surveillance of [defendant]," he directed Serlick to defendant's location, and Serlick "approached [defendant] and spoke with him." The State argued that defendant's motion should be denied because Shadinger wrote in an earlier portion of his report that "he was with Detective Cruz when they arrived," thus putting defendant on notice of Cruz's presence. The court denied the motion, saying,
I think there was enough in the report to bring that out.
I don't find this rises to the level of a Brady violation or other violation, which would require me finding a mistrial[,] so I'll deny the motion.
Serlick testified that when he approached defendant, who was standing next to his bicycle, he asked defendant for his name and identification. Defendant pulled his drivers license from his wallet and handed it to Serlick, who wrote down defendant's driver's license number, his date of birth, name and address. Serlick returned to police headquarters and gave Detective Shadinger the information he had copied from defendant's driver's license. Using that information, Shadinger was able to obtain a photograph of defendant from police files. Shadinger showed the photograph to Bernard and Cruz together. Both detectives positively identified the man depicted in the photograph as the person who sold cocaine to Detective Bernard earlier that night.
After presenting testimony from a chemist that the substance purchased from defendant was cocaine, the State rested. Defendant rested without calling any witnesses.
In Point I, defendant argues that his rights were violated by the State's failure to disclose in pretrial discovery Cruz's damaging testimony that he never lost sight of defendant between the time defendant sold drugs to Bernard and the time Serlick approached defendant to identify him. Defendant does not point to any statute or court rule to support his argument that the State was obliged to affirmatively notify him of that fact. Nor has defendant pointed to any evidence in the State's possession that the State failed to turn over in pretrial discovery. Instead, he broadly asserts that the State violated discovery procedures by "disregard[ing] its obligation to disclose conclusive identification evidence." He also maintains that the discovery provided by the State impermissibly contained less detail than the in-court testimony, and that in light of the discovery violation committed by the State, the judge was obliged to grant his mistrial motion.
Turning first to the claimed discovery violation, we deem defendant's argument to be without merit. In a situation analogous to the one presently before us, the Supreme Court rejected a defendant's argument that a discovery violation occurred when the State's medical expert failed to disclose prior to trial that she had changed the opinion she offered at the probable cause hearing on the cause of the victim's death. In rejecting the defendant's claim of a discovery violation, the Court reasoned:
[T]he State supplied defendant with [the expert's] autopsy report, diagrams, and photographs. Defendant could have sought before trial to question the medical examiner in more detail regarding her findings and to solicit opinions from his own experts regarding the cause of death. [The expert's] trial testimony was not inconsistent with her original report, but rather made specific what she had originally left general. Moreover, [her] failure to clarify her position enabled the defense to make the point on cross-examination that this theory of strangulation was a trumped-up theory not discernible on the initial autopsy. Hence, we are satisfied that the discovery provided to defendant sufficiently advised him of the possibility of [the expert's] anticipated testimony. While we would not countenance the deliberate concealment of discovery by prosecutors, the trial tactic complained of did not constitute egregious prosecutorial misconduct amounting to a breach of the rules of fair play. [State v. Zola, 112 N.J. 384, 419 (1988) (internal citations omitted), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).]
Here, as in Zola, the State provided defendant with a copy of Shadinger's report, which was the only police report authored concerning the incident. Cruz's testimony was not inconsistent with Detective Shadinger's written report, but rather added specifics that the report lacked. Had defendant sought to test the merits of his misidentification defense, he was entitled to question the detectives before trial. In light of Zola, we reject defendant's contention that the State was obliged to have furnished a written report explaining that Cruz never lost sight of defendant.
We turn next to Judge Marshall's denial of defendant's motion for a mistrial based on the purported discovery violation. "The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). We review the denial of a mistrial motion for an abuse of discretion. State v. Labrutto, 114 N.J. 187, 207 (1989) (holding that the exercise of a trial court's discretion in denying a mistrial will be upheld on appeal unless manifest injustice would result).
Having carefully reviewed defendant's claims in light of the record and applicable law, we are satisfied there is no basis upon which to disturb Judge Marshall's refusal to grant a mistrial. First, there was no discovery violation, and for that reason, defendant was not entitled to the drastic remedy of a mistrial. Second, the record demonstrates that defendant availed himself of the opportunity to cross-examine Cruz on Cruz's failure to prepare a report stating that he had maintained constant visual observation of defendant, and had never lost sight of him from the time defendant sold the cocaine to Bernard until the time Serlick approached defendant. For both of these reasons, we reject defendant's contention that Judge Marshall erred by denying defendant's mistrial motion.
In Point II, defendant asserts that he was denied a fair trial by the admission of unduly suggestive identification evidence arising from Bernard's and Cruz's photo identifications. As defendant did not object to this testimony at trial, we will not reverse on this ground unless any error was "clearly capable of producing an unjust result." R. 2:10-2. To warrant reversal, the error in question must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Taffaro, 195 N.J. 442, 454 (2008) (citation and internal quotation marks omitted).
The procedures governing out-of-court photo identifications were significantly altered by the Court's recent opinion in State v. Henderson, 208 N.J. 208 (2011), but because the Court's opinion in Henderson applies only prospectively, id. at 220, we will not apply Henderson, but will instead apply the standards existing at the time of defendant's trial.
At the time of defendant's trial, the governing standard consisted of a two-prong test to determine whether an out-of-court identification was admissible at trial. The first prong required an analysis of whether the out-of-court identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503-04 (2006). The second prong focused on whether the impermissibly suggestive procedure was nonetheless reliable. Ibid. The Herrera procedures were based upon the decision of the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).
In Herrera, our Supreme Court identified the factors to be considered in determining the reliability of an identification:
[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. [Herrera, supra, 187 N.J. at 503 (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).]
"Reliability is the linchpin in determining the admissibility of identification testimony." State v. Adams, 194 N.J. 186, 204 (2008) (quoting State v. Madison, 109 N.J. 223, 232 (1988)) (internal quotation marks omitted).
Short of a showing of "a very substantial likelihood of irreparable misidentification," determining the reliability of an out-of-court identification was a decision for the jury, not the court. Manson, supra, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155 (citation omitted).
"The strength or credibility of the identification [was] not the issue on admissibility; that [was] a matter of weight, for the fact finder, under appropriate instructions from the trial judge." 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). "[T]he showing of a single photograph ordinarily only to weight, and not admissibility, of an identification." Id. at 453 (citation omitted).
Applying the first of the two Herrera prongs, we recognize that the method Shadinger used to show Bernard and Cruz the photograph of defendant was not ideal, as it involved the showing of a single photograph. However, this fact alone does not require a finding that the identifications were inadmissible. See ibid. When Shadinger showed Bernard defendant's photograph, Shadinger asked, "[i]s that him?" He also said, "if this is the guy that sold you the drugs, then we have to ID it." Neither of these remarks by Shadinger suggested that the photograph depicts the person who sold Bernard the CDS. Moreover, although Bernard admitted that Shadinger was "the supervisor of [his] team for operation purposes," as did Cruz, both Bernard and Cruz testified that they did not feel pressured to make an identification. For these reasons, we conclude the identification was not impermissibly suggestive.
As for the second Herrera prong, the totality of the circumstances establishes that the identifications by Bernard and Cruz bore a high likelihood of reliability. Bernard, Cruz and Shadinger each had at least thirteen years of experience as law enforcement officers. While they viewed defendant for only a few minutes, the detectives had ample opportunity during that time to study defendant's appearance: the area was well lit, and during the actual transaction the detectives had an unobstructed view of defendant while he was standing less than ten feet away. The detectives testified that they paid close attention to defendant during the transaction, and they viewed defendant's photograph at the police station within ten or fifteen minutes of the incident. All three detectives were certain that the photograph depicted the man who had sold the cocaine to Bernard.
These facts closely resemble those in Manson, in which the United States Supreme Court upheld the out-of-court identification where the identification was made by a trained police officer who viewed a single photograph two days after viewing the suspect for several minutes. Manson, supra, 432 U.S. at 114-16, 97 S. Ct. at 2253-54, 53 L. Ed. 2d at 154-55. Additionally, in State v. Little, 296 N.J. Super. 573 (App. Div.), certif. denied, 150 N.J. 25 (1997), we upheld a photo identification made by a police officer who viewed a group of photographs more than two weeks after seeing the defendant and "after the officer who took [the photograph] said it depicted [the] defendant." Id. at 577-78. We reasoned that:
There can be no dispute that a trained undercover police officer has heightened awareness of the need for proper identification of persons who engage in drug purveyance. . . . During the five to seven minutes it took to arrange and complete the undercover sale of cocaine, [the officer] had at least three face-to-face unhindered opportunities to view defendant: when they first met to set up the transaction; when they met in the alleyway to carry it out; and during the entire duration the sale took place . . . . When these opportunities are considered with the degree of attention and the level of the officer's certainty in his identification, any corrupting effect of the out-of-court identification procedure is eradicated. [Id. at 580.]
Here, as in Little, the trained detectives had an unobstructed view of defendant and ample opportunity to observe his appearance. Under such circumstances, any suggestibility existing in the photo identification is of no constitutional significance. Ibid.
Moreover, as detectives purchasing cocaine from an apparently unarmed defendant, Detectives Shadinger, Cruz and Bernard experienced none of the stress or fear that often interferes with the ability of a crime victim to make a reliable identification. See State v. Cromedy, 158 N.J. 112, 124 (1999).
Applying Manson, Herrera and Little, we are satisfied that defendant has failed to establish plain error requiring reversal. We reject his contention that the court erred when it admitted the evidence of the detectives' out-of-court identification.
In Point III, defendant argues that the judge committed reversible error by barring him from using the Attorney General's Guidelines on Eyewitness Identification (Guidelines) to cast doubt upon the reliability of Detective Shadinger's technique of showing Bernard and Cruz a photograph of defendant for purposes of identification. Before jury selection, the State moved in limine to bar defendant from making any reference to the Guidelines. The State argued that the Guidelines were not relevant to identification made by police officers involved in an investigation, and that even if relevant, reference to the Guidelines would confuse or mislead the jury. Defendant argued that the Guidelines were relevant to show that "there was . . . a better or accurate or more reliable method of obtaining the identification" and that nothing in the Guidelines suggests they only apply to lay witnesses. The judge granted the State's motion in limine, reasoning:
I think it's potentially confusing in that . . . they're guidelines. They're not [the] law.
I think certainly [defendant] can question as to how [the detectives] identified [defendant] and . . . point out any issues with regard to their method of identification. I think injecting the Attorney General guidelines in it, however, would tend to confuse [the jury].
I just think it . . . would tend to take [the jury] off onto another tangent, as far as identification.
Also, . . . these were police officers . . . . It's a little different situation. I don't find it to be your typical situation.
The trial judge is vested with broad discretion to control the scope of cross-examination, and we will not disturb that decision unless clear error and prejudice are shown. State v. Wakefield, 190 N.J. 397, 452 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Evidence that is relevant may nonetheless be excluded if the trial judge concludes that the probative value of the evidence "is substantially outweighed by the risk of  undue prejudice, confusion of issues, or misleading the jury[.]" N.J.R.E. 403.
Contrary to defendant's claim, he was denied neither his right of confrontation and cross-examination nor his right to present a defense. The trial court permitted defendant to impeach the detectives on their method of identification. The only limitation the judge imposed was that defendant could not specifically use the Guidelines in doing so, because of the risk the jurors might afford the Guidelines undue weight, which was especially problematic because the witnesses in question were trained officers, not lay witnesses. Because defendant has failed to establish that the trial court's ruling resulted in clear error or prejudice, we reject the claim defendant advances in Point III.
In Point IV, defendant maintains that the sentence of four years imprisonment was excessive and must be reversed. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comment. Defendant's prior criminal record includes three convictions: a January 1985 conviction for burglary and larceny, and two convictions in April 1987, one for burglary and the other for seven counts of theft. Under those circumstances, defendant's sentence at the midpoint of the applicable sentencing range does not shock the judicial conscience. See State v. Roth, 95 N.J. 334, 364-66 (1984).
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