January 9, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALNASIR MUNTAQIM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-03-0674.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Sabatino and Ashrafi.
This appeal arises out of a robbery that occurred in October 2008. At trial, the victim identified defendant Alnasir Muntaqim as her assailant and stated that he pressed a sharp object to her right side during the robbery. Defendant elected not to testify and principally relied on a misidentification defense. The jury found defendant guilty of first-degree robbery but acquitted him of two counts of weapons offenses. The trial court classified defendant as a persistent offender because of his lengthy criminal record and sentenced him to an extended term of forty years imprisonment.
Defendant now appeals his conviction and sentence. Although we reject
the other points he raises on appeal, we agree with defendant that the
trial court erred in denying his pretrial motion for a Wade*fn1
hearing to assess the identification procedures employed by
the police. We therefore remand this matter for such a Wade hearing,
informed but not bound by the Supreme Court's recent explication of
identification concerns in State v. Henderson, 208 N.J. 208 (2011).
According to the State's proofs at trial, on the morning of October 20, 2008, the victim, an adult female, was waiting for a bus at the corner of Sixth Street and Sixteenth Avenue in Newark. While she was waiting, the victim was speaking on her cell phone and removing items, including $100, from her bag. The victim noticed a man pacing at the bus stop. The man approached her from behind, and the victim then felt something sharp pressing against her right side. The victim did not see a sharp object, nor was any weapon found at the scene.
The man then grabbed for the victim's phone, the $100 in cash, and her bag. He broke the victim's phone. The victim yelled for the man to "get off [her] bag." Her assailant yelled back, "give me your shit." He scratched the victim and grabbed the chain necklaces that she was wearing.
A physical altercation ensued between the victim and the her assailant, which, according to the victim, lasted between three and four minutes. During the altercation the victim was able to view her assailant's face.
A man who was driving down Sixteenth Avenue noticed the altercation. He heard the victim exclaim, "stop, stop." He pulled over to help, and, at that point, the assailant fled the scene.
At trial, the passerby testified that he followed the assailant into a housing complex and watched him walk around the complex for three to five minutes. The passerby related that the assailant then got into a vehicle and drove away. He recorded the make and model of the getaway vehicle as well as its license plate number and gave the information to a police officer. The passerby did not give the police an out-of-court identification; however, he identified defendant as the assailant during the trial.
Newark Police Officer Joaquin Jenkins arrived on the scene to investigate. Officer Jenkins spoke with the victim, who estimated that her assailant was age "twenty to twenty-five, twenty-six." The victim further described her assailant as being about five feet eight inches tall and 110 pounds.*fn2 The victim also provided Officer Jenkins with the license plate number of the getaway vehicle. According to Officer Jenkins's report, the assailant drove a blue Chrysler Intrepid.*fn3
Later that same day, the victim gave a written statement to Porfirio Dominguez, a Newark police detective and the lead investigator on the case. She repeated her description of her assailant. She also looked through a series of photographs on the police department's computer and initially identified two people whom she thought might have done it.
Detective Dominguez thereafter ran the license plate number that he had received from the victim through the State's computerized motor vehicles records. He discovered that the vehicle with that license plate belonged to defendant. Based upon that additional information, Detective Dominguez compiled a new photo array for the victim.
The victim related that on October 25, 2008, Detective Dominguez picked her up at her home and drove her to the police station so that she could look at more photographs. In her trial testimony, the victim gave inconsistent answers about whether the police told her before administering this second photo array that they had identified a suspect through the getaway car's license plate number. As we will elaborate in our discussion of the Wade issue in Part II(A), infra, the victim in her testimony twice denied receiving such a disclosure from the police but also twice stated that such a disclosure had occurred.
The photos in the second array were shown to the victim apparently by another police officer assigned to the investigation, Detective Gerardo Rodriguez.*fn4 According to the victim, upon her arrival at the police station on October 25, an officer left her alone with six photos, and she viewed all siX at the same time. Conversely, Detective Rodriguez testified that he showed the victim the photos one at a time and denied that he had left her alone with them.
The two individuals that the victim had tentatively identified earlier on October 20 as potential suspects were not included in the second photo array. The victim picked defendant's photograph out of the array, and she identified him as the man who had grabbed her bag. At trial, the victim again identified defendant, pointing him out in the courtroom as her assailant.
Following the issuance of an arrest warrant based upon this additional information, defendant was arrested on November 4, 2008. In March 2009, an Essex County grand jury returned an indictment, charging defendant with robbery while armed with or threatening the use of a sharp object, N.J.S.A. 2C:15-1 (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three).
Prior to trial, defense counsel requested a Wade hearing to determine whether the police's out-of-court identification procedures were, in this case, impermissibly suggestive. The trial court denied that request, concluding that defendant had not made an adequate showing to require such a hearing.
At the two-day jury trial in March 2010, the State called the victim, the passerby, Officer Jenkins, Detective Dominguez, and Detective Rodriguez as witnesses. As we have noted, both the victim and the passerby identified defendant in court as the assailant. Defendant did not testify, and he did not present any witnesses. The jury convicted defendant of count one, the robbery offense, but acquitted defendant of counts two and three, the weapons offenses.
On May 14, 2010, defendant filed a motion for a new trial and for a judgment of acquittal notwithstanding the verdict. The motion was denied by the trial court as both procedurally time-barred and substantively without merit.
At the sentencing hearing on May 24, 2010, the court granted the State's motion for an extended term. The court imposed upon defendant, who has an extensive prior criminal record, a forty-year prison sentence, with a thirty-four-year period of parole ineligibility.
In his appeal, defendant argues that:
THE COURT'S DENIAL OF DEFENDANT'S REQUEST FOR A WADE HEARING WAS ERRONEOUS.
THE JURY INSTRUCTIONS ON THE OFFENSE OF ROBBERY WERE CONTRADICTORY, CONFUSING AND ERRONEOUS AND MANDATE REVERSAL OF DEFENDANT'S CONVICTION. (Partially raised below)
THE INCONSISTENCY OF THE JURY VERDICTS AND THE LACK OF EVIDENCE BEYOND A REASONABLE DOUBT TO CONVICT DEFENDANT OF FIRST DEGREE ROBBERY MANDATES REVERSAL OF DEFENDANT'S CONVICTION. (Partially raised below)
THE DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED.
THE EXTENDED TERM SENTENCE IMPOSED UPON THE DEFENDANT OF FORTY (40) YEARS WITH THIRTY-FOUR (34) YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below)
We first address the critical issue of the identification procedures used here by the police. The trial court held that defendant was not entitled to a Wade hearing because he failed to satisfy his preliminary burden of showing that the procedures were impermissibly suggestive. Because the record presents at least a colorable claim of such undue suggestiveness, and given the murky trial testimony on the subject, a remand is warranted for a Wade hearing.
As reflected in the Court's recent seminal opinion in Henderson, supra, 208 N.J. at 208, the law and science pertaining to eyewitness identification are evolving. In Henderson, the Court canvassed a variety of factors that, according to scientific studies, can confound what otherwise might appear to be an eyewitness's reliable identification of a criminal wrongdoer. Id. at 218. These confounding factors include so-called "system variables" (factors within the control of the criminal justice system, such as suggestive aspects of lineup and photo array procedures) and "estimator variables" (factors outside of the control of the criminal justice system, such as the distance between a victim and an assailant, poor lighting, stress, personal characteristics, and memory decay). Ibid. In light of these variables, which can lead to the conviction of a misidentified innocent person, Henderson instructs that "courts must carefully consider identification evidence before it is admitted to weed out unreliable identifications, and  juries must receive thorough instructions tailored to the facts . . . to evaluate the identification evidence they hear." Id. at 302 (emphasis added).
To address such reliability concerns, the Court in Henderson prospectively "revise[d] the State's framework for evaluating eyewitness identification evidence." Id. at 287.
Among other things, the Court has elected to modify, see id. at 285-96, the applicable legal standard regarding eyewitness identification admissibility, formerly known as the "Manson/Madison" test. See generally Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977) (reciting a two-part test of impermissive suggestiveness and reliability); see also State v. Madison, 109 N.J. 223, 232-33 (1988) (adopting the federal approach in Manson to guide the courts of this State), displaced by State v. Henderson, 208 N.J. 208 (2011).
We need not repeat in this opinion Henderson's detailed new framework for pretrial hearings on admissibility, as it is not yet applicable. See Henderson, supra, 208 N.J. at 300-02 (instructing that the new framework is to apply to future cases "thirty days from the date this Court approves new model jury charges on eyewitness identification"*fn5 ). Even so, a fair application of extant case law, including the Manson/Madison test, to the present record shows that a remand for a post-trial evidentiary hearing on the admissibility of the victim's identification of defendant is warranted.
Under the case law preceding Henderson, a defendant is entitled to a Wade hearing outside the presence of the jury to determine admissibility of an eyewitness identification if he presents "some evidence" indicating that the police identification procedure employed was unduly suggestive. State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004). A hearing is necessary when such a showing is made because, as has long been recognized, identification evidence can be "peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." Wade, supra, 388 U.S. at 228, 87 S. Ct. at 1933, 18 L. Ed. 2d at 1158.
A defendant is not automatically entitled to a Wade hearing under current law. Ruffin, supra, 371 N.J. Super. at 391. Instead, defendant must request a hearing and adduce evidence indicating that the identification procedure was impermissibly suggestive. Ibid. The trial court must then consider the "totality of the circumstances" in determining whether a procedure was, in fact, impermissibly suggestive. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). If the court finds such impermissive suggestiveness, it must then weigh those concerns against five "reliability" factors. See Madison, supra, 109 N.J. at 239-40 (including the witness's ability to view the criminal during the crime, his attentiveness, the accuracy of his description, his certainty, and the time between the crime and the identification).*fn6
The trial court misapplied its discretion in denying defendant's request to conduct a Wade hearing at which these legal principles could have been applied. The record shows that defense counsel requested a Wade hearing at a pretrial hearing on March 3, 2010. At that time, defense counsel argued that the identification procedure was impermissibly suggestive because Detective Dominguez, the primary investigator on the case, may have shown the victim a photo array, in violation of the Attorney General Guidelines.*fn7 The State responded that Detective Dominguez had not shown the victim the photos and that the contradictory grand jury statement was the result of poor questioning by the State's attorney. The trial court accepted the State's explanation and denied the application for a Wade hearing in a short oral ruling. In that ruling, the court concluded that "the issue as to who showed the photographs goes to the weight [of the evidence] not to [its] admissibility."
The propriety of the second photo array is placed further in doubt, however, by testimony that emerged at the trial. On cross-examination, the victim stated that Detective Rodriguez left her alone with six photographs, which would have allowed her to see them all at once. Conversely, Detective Rodriguez testified that he had shown the photographs to the victim one at a time and that he did not leave her alone with the photographs. This direct conflict in their recollections was not addressed by the court and instead was implicitly left for the jury's consideration as part of the overall proofs.
More importantly, the victim considerably vacillated in her trial testimony regarding whether the police had told her that they had identified a suspect and thereby implied that his photograph was contained in the second array, in violation of Attorney General Guideline I(B). This is a significant issue because if, in fact, the police had made such a disclosure to the victim, that might have potentially tainted her photo identification sufficiently to render it inadmissible.
During her cross examination, the victim initially acknowledged that the police told her, before taking her back to the station for the second array, that they had identified a suspect:
Q. They told you why you were going there, right?
Q. To look at photographs?
Q. Because they had identified somebody, -
A. Right. . .
Q. - right? And they wanted you to look at the pictures.
A. Right. That was explained before they came and got me. But as we was driving, we wasn't discussing anything. [Emphasis added.]
Immediately thereafter, still during her initial cross-examination, the victim seemingly recanted on this important point, in two separate answers:
Q. Alright. So, you knew before you got there that they had identified the owner of the car.
A. Yeah, they - well, I don't - no. He just said can I pick out some pictures?
A. Can you come down  with us to pick out some pictures?
Q. Okay. So, you're saying you knew nothing about them identifying anyone from the car.
A. Say - say that again.
Q. You're saying you knew nothing about anyone being identified as the owner of the car at that time.
A. No, I did not know nothin' -
A. - about that." [Emphasis added.]
Defense counsel revisited this subject on re-cross-examination. The victim contradicted herself once again and returned to her original position that the police had told her that they had identified a suspect before showing her the second array:
Q. Now, you stated*fn8 on cross-examination that, in fact, Detective Dominguez did tell you that they had identified the owner - matched up the license plate number . . .
A. Right, they - Q. . . . correct?
A. - said that.
Q. They told you that before you went down and looked at the pictures, right?
A. Right, they - they stated that we want you to, um, look at some pictures to identify because we ran a license plate number and that was basically it. [Emphasis added.]*fn9
These patent inconsistencies in the trial testimony are troubling because they bear significantly upon whether, as defendant argues on appeal, the victim's out-of-court identification of defendant in the second photo array should have been heard by the jury at all. The inconsistencies and uncertainties are germane to both prongs of the Manson/Madison test, i.e., whether the police procedures were impermissibly suggestive and, if so, whether the victim's identification of defendant was nevertheless reliable. A Wade hearing conducted by the trial court might have developed this testimony in a less confounding fashion. In any event, such a hearing would have resulted in specific credibility findings by the court tied to the Manson/Madison factors and a more informed ruling on the admissibility of the victim's identification.
In all fairness to the trial judge, we are mindful that these serious potential flaws in the identification procedures were not spotlighted in defense counsel's pretrial motion for a Wade hearing, which instead focused on the discrepancy regarding which detective had shown the second array of photos to the victim. We are also mindful that defense counsel did not renew the application for a Wade hearing during or after the victim's inconsistent trial testimony.
Nevertheless, there are more than ample indicia in the present, albeit incomplete and murky, record of suggestiveness and unreliability so as to warrant a remand of this case for the limited purpose of conducting a Wade hearing, with appropriate findings of fact and conclusions of law. Identification was one of the key issues at trial, and we are disinclined to sustain this conviction without a fuller and more definitive record. If the trial court determines at the Wade hearing that the victim's identification*fn10 of defendant was admitted improvidently, the court shall consider what the consequences of that conclusion may be, including whether a new trial is warranted.
The remand proceedings and decision shall be completed by May 1, 2012, after which the aggrieved party can pursue further review from this court by filing a motion to reopen the appeal along with a supplemental post-remand brief and transcripts within thirty days of the court's remand decision.
Although we need not address the other arguments raised by defendant, we do so briefly for the sake of completeness.
First, we discern no error in the trial court's jury charge regarding the use of a simulated weapon in a first-degree robbery. The proofs, in which a sharp object or something feeling like a sharp object was thrust upon the victim by the robber, clearly warranted the charge. See State v. Chapland, 187 N.J. 275, 292 (2006); see also N.J.S.A. 2C:15-1. The State appropriately requested such a jury instruction at the charge conference and did not waive an assertion of simulation.
Second, the fact that the jury acquitted defendant of the weapons charge does not make his conviction on the robbery charge an inconsistent verdict. The use of a simulated weapon would logically reconcile an acquittal on the weapons count with a conviction on the robbery count. The jury could have reasonably found that defendant deliberately pretended to have a sharp weapon even though he might not actually have possessed one at the time. Moreover, it is well settled that juries may render inconsistent verdicts so long as there is a "sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004).
Assuming, for the sake of argument and subject to the remand, that the victim's identification testimony was properly admitted, the proofs were ample to sustain the conviction. For similar reasons, the trial court did not err in denying defendant's belated motion for a new trial, which was not founded upon the identification issues which we are now remanding. See R. 2:10-1.
Lastly, we have no difficulty upholding defendant's sentence for this first-degree crime. The extended term was justified because of defendant's status as a persistent offender with six prior convictions, two of which occurred within the requisite ten-year span under N.J.S.A. 2C:44-3(a). Although the sentence is lengthy, we detect no abuse of discretion in the trial court's application of the aggravating factors and the non-existent mitigating ones. See State v. Bieniek, 200 N.J. 601, 612 (2010).
Affirmed in part and remanded in part for further proceedings consistent with this opinion.