On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-08-2651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 28, 2011
Before Judges Waugh and St. John.
Defendant Damon Williams appeals from his conviction on one count of second-degree robbery, contrary to N.J.S.A. 2C:15-1, as well as the resulting sentence of incarceration for an extended term of fourteen years, eighty-five percent to be served without parole pursuant to N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial.
We discern the following facts and procedural history from the record on appeal.
On July 12, 2007, a black male entered a Commerce Bank*fn1 branch in Camden and dropped an envelope in front of Patrice Sloan-El, one of the bank's tellers. A hand-written note on the envelope read:
NO DYE PACKS. NO SILENT ALARM. NO HEROES. GIVE UP ALL THE BIG BILLS. THIS IS NOT A JOKE. GIVE ME THE MONEY AND THERE WILL BE NO TROUBLE. THANK YOU.
Sloan-El complied and the man left the bank with approximately $5000.
When asked by the police to describe the man, Sloan-El told them that he was "a dark-skinned black male," wearing an old hat with a logo, a "windbreaker, [long-sleeved] jacket[,] and black pants." She described him as being between forty and fifty years old, approximately "five-foot-seven [or] five-foot-eight" in height, and of a "thin build." Although the man did not have a beard, Sloan-El also described him as not being "clean shaved at all," "scruffy," with "salt-and-pepper facial hair."
David Williams was approaching the bank when he noticed that money had fallen out of the pocket of a man riding away from the bank on a bicycle. He yelled: "Hey, you dropped your money." The man looked back, but continued to ride away. David Williams picked up the money, approximately $1800, and subsequently returned it to the bank. He described the man to police as an "African American," wearing a dark-colored hat and "a red and black jacket." David Williams told the police the man was about forty years old.
During their investigation, the police were able to lift a latent fingerprint from the envelope the perpetrator gave to Sloan-El. Following analysis, it was determined that the print belonged to Damon Bailey, an alias used by Williams.*fn2 Investigator William Townsend obtained a file photograph of Williams and compared it to the photographs from the bank's surveillance camera, concluding that the man in the bank photographs was Williams.
Williams was arrested on July 16, 2007. The police took a new photograph of him for use in a photo array. Williams was twenty-eight at the time of his arrest. He was also six feet tall. He testified at trial that he weighed approximately 200 pounds in July 2007.
Officer Rafael Perez conducted a photo array with Sloan-El. She viewed eight photographs separately. According to Perez, she stated that photo five "resembled the suspect," but was not certain. Although the photograph indicated was the photograph of Williams, Perez recorded that Sloan-El did not make an identification because she did not make a positive identification.
Williams was indicted on August 15, 2007. He was tried before a jury over five days in March 2009 and convicted. Williams conceded at sentencing that he was eligible for sentencing as a persistent offender pursuant to N.J.S.A. 2C:44- 3(a). The judge imposed the sentence described above. This appeal followed.
On appeal, Williams raises the following issues:
POINT I: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF THE STATE'S IDENTIFICATION EVIDENCE MADE FROM SURVEILLANCE PHOTOGRAPHS AND THE EXCLUSION OF DEFENSE IDENTIFICATION EVIDENCE MADE FROM THE SAME SURVEILLANCE PHOTOGRAPHS.
A. THE ADMISSION OF INVESTIGATOR TOWNSEND'S TESTIMONY IDENTIFYING THE DEFENDANT AS THE PERPETRATOR FROM SURVEILLANCE PHOTOGRAPHS WAS ERRONEOUS AND HIGHLY PREJUDICIAL.
B. THE EXCLUSION OF DAMON WILLIAMS'S TESTIMONY IDENTIFYING HIS FATHER AS THE PERPETRATOR FROM SURVEILLANCE PHOTOGRAPHS WAS ERRONEOUS AND HIGHLY PREJUDICIAL.
POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE WITHOUT SHOWING THAT THE IDENTIFICATION WAS RELIABLE (Not Raised Below).
A. SLOAN-EL'S IDENTIFICATION SHOULD HAVE BEEN EXCLUDED.
B. TOWNSEND'S IDENTIFICATION SHOULD HAVE BEEN EXCLUDED.
POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S PREJUDICIAL AND ERRONEOUS INSTRUCTION ON THE LAW OF IDENTIFICATION (Not Raised Below).
POINT IV: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF LEGAL CONCLUSIONS (Not Raised Below).
POINT V: THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AS WELL AS HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE IMPROPER ADMISSION HEARSAY EVIDENCE (Partially Raised Below).
POINT VI: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF EXPERT OPINIONS BY A LAY WITNESS (Not Raised Below).
POINT VII: THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE CHARGE OF ROBBERY SHOULD HAVE BEEN GRANTED.
POINT VIII: THE DEFENDANT'S SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
B. THE TRIAL COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.
We begin our analysis with a discussion of the issue of identification, as to which Williams raises several points on appeal.
There were two categories of evidence linking Williams to the crime: (1) testimony that his fingerprint was on the envelope put before the teller and (2) testimony identifying him as the person who was in the bank, standing in front of the teller with the note, on the day of the crime. As noted, Williams was arrested and charged with the crime at issue because his fingerprint was found on the envelope containing the instructions to the teller. That fact presented very strong evidence of guilt.
The evidence identifying Williams as the man who stood before the teller in the bank was not as strong. Williams' personal characteristics did not entirely match the description given to the police by the two eyewitnesses. He was taller, heavier, and younger than the person described by Sloan-El. He was younger than the age given by David Williams.
Four days after the crime was committed, Sloan-El was unable to identify Williams in the photo array, although she stated that his picture "resembled the suspect." At trial, Sloan-El was asked whether she saw anyone in the courtroom who "resembles who robbed you." She identified Williams as that person. She also identified Williams as the person shown in the picture that she thought "resembled" the criminal.
Nevertheless, she did not categorically identify Williams as the man in the bank. David Williams testified at trial that he was not able to identify ...