On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1408.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Messano, Yannotti and Espinosa.
Defendant Damon R. Williams appeals from his conviction for theft from the person, N.J.S.A. 2C:20-2b(2)(d), and his sentence. We affirm.
Defendant was indicted for second-degree robbery, N.J.S.A. 2C:15-1, arising from events that occurred at the Pennsauken branch of Commerce Bank on June 27, 2007. At approximately 10:00 a.m. that day, Barbara Carter, a customer service representative, observed a man standing by the doorway looking in the direction of the tellers. He caught her attention because he remained standing there for so long with no apparent purpose. She described him as a dark-skinned African-American male wearing a one-piece "construction outfit," with a white asbestos mask covering his mouth and nose. Because the man was wearing a baseball hat pulled down over his head, she was unable to see whether he had hair on his head but saw black and white specks going through his hat and salt and pepper facial hair sticking out from the mask. In the robbery report Carter filled out that day, she indicated the man was forty to forty-two years old, approximately "five ten" and 170 pounds. Carter saw a water bottle on the counter but did not know if the bottle belonged to the man. She did not notice when he left the bank, but he stayed for about "five, seven, 10 minutes."
On North 49th Street, about one-half block away from the bank, Catherine Hunt was sitting on her front porch when, between noon and 1:00 p.m., she saw a "gentleman . . . dressed all in black, heavy clothes, . . . [and] a knit hat[,]" riding a black bicycle towards the bank. Hunt believed the gentleman was African-American.
Shortly before 1:00 p.m. that day, a man walked into the bank and handed a note to bank teller, Carmen Cordero. The note read, "This is not a joke. Give me the money. No dye packs, no hero[e]s, no problems." Cordero testified she did not panic, but she was scared and did not know if the man had anything in his hand or if he might lunge at her. Cordero gave him the money from her top drawer, he left, and Cordero ran to the back and told her supervisor she had been robbed. Her supervisor then called the police. When Cordero settled her drawer, she discovered that she was short $1,549.
Officer Victor Diaz of the Pennsauken Township Police Department was dispatched to the bank at approximately 12:56 p.m. in response to a holdup alarm. The officer was told that a "black male dressed in black, fled." He was also told the male was wearing a hat. The officer proceeded to the area of 49th street where the man allegedly fled, while other officers responded to the bank.
Police traveling up and down North 49th Street approached Catherine Hunt and asked if she saw anything unusual. Hunt told the police about her earlier observation and that, approximately one-half hour after she had seen the man all in heavy, black clothes riding the bicycle toward the bank, she observed the same man riding away from the bank. She told the police the direction the gentleman was traveling when she last saw him.
Officer Diaz stopped a pedestrian walking on the street towards the bank. The officer checked the pedestrian's identification and confirmed he did not match the description of the suspect. The pedestrian then told Officer Diaz he "observed the black male dressed in black on a black mountain bike pedalling [sic] quickly towards Chestnut Avenue on 49th Street." Officer Diaz relayed this information to other officers via his radio and continued on his way up to 49th Street.
Officer Diaz got out of his car and continued on foot down a path and through an opening in a fence. He found a black shirt and pair of black pants tossed on the ground. There was a water bottle sticking out of one of the pants pockets. He found the bike after the detectives arrived and he explored the trail.
Anthony Armstrong was working as a mail carrier delivering mail on 51st Street at around 1:00 p.m. He testified that "as [he] was walking to a house, an individual appeared out of nowhere right behind [him]." The individual's pace began to speed up and by the time Armstrong reached the next corner, the individual "was at a full stride[.]" The individual was "a black male with bald head, little bit scruffy like slight goatee. He was wearing a white tank top, long like basketball shorts." The man was about six feet tall with a "[m]edium to slim" build.
Investigator William Townsend of the Camden County Prosecutor's office canvassed the area outside the bank with his crime scene technician and members of the police department. He was eventually directed to an area near the bank where the clothing and bicycle were found. Townsend testified that upon reviewing the surveillance images retrieved from the bank for his testimony, he noticed a marking on the pants of the perpetrator consistent with a marking on the pants found tossed on the ground not far from the bank.
Townsend also conducted interviews and drafted a report. Cordero was very shaken up. She provided him with a generic description of the suspect "as a black male, approximately 20 to 40 years old, approximately 5'7" to 5'9" with a thin build, dark complected . . . wearing a baseball hat, black shirt, black pants and a dust mask around his bottom portion of his face." Cordero testified that her attention was drawn to him because "[i]t was a hot day to have long sleeves on and pants." Townsend then compared Cordero's description with the surveillance images and found images consistent with the description. Cordero had indicated the suspect was wearing a hat and the images confirmed this. After learning the perpetrator was possibly in the bank earlier on the day of the robbery, Townsend reviewed surveillance tapes of times prior to the robbery. The person in the bank earlier in the day appeared to him to be the same person who committed the robbery.
A Wade*fn1 hearing was conducted to determine the admissibility of an out-of-court identification of defendant by Barbara Carter. Investigator Fawn Ackerman contacted Carter by telephone and asked her if she might still be able to identify the person who committed the robbery. Carter stated she thought she could still make the identification and said she was willing to look at a photo array.
The photo array was prepared by Ackerman, who testified that she used a program called Picture Link. She chose a 2007 photograph of defendant and put his identifier information, which she described as age, gender, height, weight, eye color, facial hair and hair color into the system. The computer program generated a list of subjects in the computer system that closely matched the defendant. The system printed six photos but allowed the investigator to edit the compilation to select others who might look more like the suspect. In making the final selections, Ackerman made sure each individual in the photos was wearing the same orange shirt and attempted to find photos with the same background color. Defendant was the only bald person in the array. Ackerman testified that the hairstyle was not a particular concern in selecting photographs because the robber wore a hat.
The photo array was shown to Carter by Investigator Michael Molle on April 8, 2009. Molle had no prior participation in the investigation and was unaware who the suspect was in the case. Although present in the building at the time of the identification procedure, Ackerman was not involved in the showing of the photo array or in putting the photographs in order.
Prior to showing Carter the photo array, Molle read her an instruction form, asked if she understood it, and had her sign and date the form. The instruction form stated as follows:
In a moment I will show you a number of photographs, one at a time. You may take as much time as you need to look at each of them. You should not conclude that the person who committed the crime is in the group merely because a group of photographs is being shown to you.
The person who committed the crime may or may not be in the group and the mere display of the photographs is not meant to suggest that our office believes the person who committed the crime is in one of the photographs.
You are absolutely not required to choose any of the photographs and you should not feel obligated to choose anyone. The photographs will be shown to you in random order. I am not in any way trying to influence your decision by the order of the pictures presented.
Tell me immediately if you recognize the person that committed the crime in one of the photographs. All the photographs will be shown to you even if you select a photograph. Please keep in mind that hairstyles, beards, moustaches are easily changed. People gain and lose weight. Also photographs do not always show the true complexion of a person. It may be lighter or darker than shown in the photograph.
If you select a photograph, please do not ask me whether I agree with or support your selection. It is your choice that counts. Please do not discuss whether you selected a photograph with any other witness who may be asked to look at the photographs.
Molle proceeded with the array by taking the six photographs out of a manila envelope, jumbling them, and then numbering them one to six. Carter was given the photos one at a time. At picture number four, Carter stopped, ripped the bottom off a styrofoam cup, placed it over the mouth area of the picture and said to Molle, "that's him." The photograph she selected was of defendant. Molle reminded Carter she needed to look at the remaining photos and continued with the array. A photo display result form was then filled out in which Carter indicated she chose photograph four and affirmed, no member of the prosecutor staff or anyone else suggested I select any particular photograph -- that I ...