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State of New Jersey v. Darryl Davis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 6, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARRYL DAVIS, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
QUANTIS L. GOODE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-10-3549.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 2, 2012

Before Judges Graves, J. N. Harris, and Koblitz.

Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent in both appeals; Ms. Friedman, of counsel and on the briefs).

These back-to-back appeals stem from the joint trial of defendants Darryl Davis and Quantis L. Goode, where they were convicted of, among other things, the January 7, 2007 murders of Saad Rahman and Samad Grimes. We consolidate the appeals for purposes of this opinion and affirm both matters.

I.

A.

The following facts are derived from the trial record as the State's version of events, which evidently convinced the jury of defendants' guilt. Defendants -- known by some in their community by the street names "Dre" (Davis) and "Ice Cream" or "Moo" (Goode) -- were drug dealers plying their trade in the Baxter Terrace housing complex in Newark. Victims Rahman and Grimes were similarly at work, competing for customers on the grounds and in the hallways of Baxter Terrace. For several days prior to January 7, 2007, the four individuals were reportedly involved in a "beef" over territory, with sporadic episodes of exchanged gunfire.

Muhammad Holiday and his wife Amina were residents of Baxter Terrace on the day of the homicides. Mr. Holiday is Rahman's brother and Grimes's uncle. The Holidays were familiar with defendants, but knew them only by their street names.

Around noon, Mr. Holiday met with Rahman and Grimes in his apartment to discuss their planned use of the vestibule outside of Mr. Holiday's apartment for the sale of illegal drugs. Because it was a Sunday, and Mr. Holiday's mother was expected to visit, he instructed Rahman and Grimes that "[there will] be no BS today, . . . [you] need to go somewhere," explaining that "no BS today" meant: "[n]o shooting, no drug selling, no nothing."

Just as the two victims left the apartment, while Mr. Holiday was within "two steps" of the door, he heard gunshots coming from the hallway. As Mr. Holiday ordered his wife to call 9-1-1, he peered through the door's peephole and observed Goode "running down the stairs shooting" with Davis in close proximity, and the hallway filling with the "smoke and flash" of gunfire.

Mr. Holiday dashed to a bedroom window to look outside "[be]cause [he] want[ed] to know if [his] brother got out [of] the hallway." He saw Grimes run out of the building holding a handgun while under fire from Davis. Mr. Holiday observed Grimes fire once, then drop the handgun, and eventually collapse on Orange Street. Mrs. Holiday also observed these events. Goode, who followed Davis out of the building, could be heard telling Davis to stop shooting. Mr. Holiday then saw defendants "rush through the sidewalk" as they ran away from the scene.

The Holidays then left their apartment and found Rahman lying in the vestibule. Once outside the building, Mr. Holiday observed defendants sprint into a van and drive away.*fn1 Mrs. Holiday did not witness Goode outside, but she did see Davis jump into a "tan or beige-ish van," which drove away on Orange Street. They checked on Grimes, who was still breathing. Mr. Holiday returned inside to console Rahman as he died.

Newark police and emergency personnel immediately arrived at the scene. The police recovered a Glock nine-millimeter semi-automatic pistol with defaced serial numbers on the ground near Grimes, a Mossberg twelve-gauge sawed-off shotgun with a pistol grip under Rahman's body, and numerous shell casings.

Based upon statements given by the Holidays and information gathered from another resident, Ronald Alston, the police determined the perpetrators' names and their last-known addresses. Arrest warrants for defendants were procured and the police issued a nation-wide notice that defendants were wanted in connection with the double homicide. In the ensuing days, police officers searched for defendants at several locations, but were unable to locate them. Ultimately, on separate days in the following week, Goode and Davis voluntarily surrendered to the authorities.

B.

In October 2007, an Essex County Grand Jury returned Indictment No. 07-10-3549, charging defendants with: (1) first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) and (2) (count one); (2) two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (counts two and three); (3) two counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts four and six); and (4) two counts of second-degree possession of a weapon with a purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4(a) (counts five and seven).

Defendants were tried together on various dates in June and July 2009. On July 16, 2009, the jury convicted Goode of all counts and convicted Davis of all counts except conspiracy.

C.

At trial, the Holidays identified defendants as the perpetrators. Another witness, medical examiner Dr. Zhongxue Hua reported that Rahman died from three gunshot wounds to his torso and legs and Grimes perished from four gunshot wounds to his torso. Doctor Hua further noted that Rahman had a bag of sixty-nine "tiny plastic vials with [a] white powdery material" in his right front pocket.

Detective Frank Faretra, a ballistics expert, testified that Rahman's sawed-off shotgun was not discharged during the incident, but that Grimes's handgun was fired three times. There were several additional spent shell casings recovered at the scene that were fired from other weapons. One of these shell casings was linked to a prior shooting. Faretra concluded that "five firearms were involved [in this case, but] four . . . were involved in the shooting."

Salaam Grimes testified that Grimes is his younger brother and Rahman his uncle. He knew both defendants, albeit by the names Ice Cream and Dre, and had observed them selling drugs many times in the hallways of Baxter Terrace when he visited his family. The victims were also known to have sold drugs at that location.*fn2

Salaam was aware that there was a "beef" between defendants and his relatives, but he did not know the details of the feud. However, Salaam indicated that Rahman told him that he had robbed defendants at the end of December 2006. He also mentioned that on New Year's Eve, as he was about to leave a party to pick up Rahman, he heard gunshots. He immediately received a telephone call from Rahman telling him not to come to his location because defendants had been shooting at him.

On January 7, 2007, Salaam was supposed to meet Rahman at Baxter Terrace. While he was on the telephone with Rahman around noon discussing their plans, he suddenly heard gunshots, and the call ended. After trying to call back to no avail, Salaam boarded a bus and headed to Baxter Terrace. By the time he arrived, the incident was long over.

Alston testified that on the night of January 7, 2007, the police kicked in the door to his apartment and began harassing him regarding the shootings that had occurred earlier that day. Alston claimed he was drunk at the time, and stated variously that he was both hostile and friendly with the officers.

Alston acknowledged that he gave a statement to the police that placed Goode at the scene in the early morning hours of January 7, 2007. However, he insisted that he was intoxicated at the time of his statement and the police bullied him and told him what to say. He denied that he saw defendants in his apartment building on a daily basis and further maintained that although Goode was known to him, Goode was not in his apartment at 8:00 a.m. on the morning in question.

Defendants neither testified nor presented any witnesses.

D.

On September 23, 2009, defendants were sentenced. After merger, the court sentenced Davis to an aggregate term of sixty years' imprisonment with sixty years before parole eligibility as follows: (1) thirty years with a parole disqualifier of thirty years for the murder of Rahman; (2) a consecutive term of thirty years with a parole disqualifier of thirty years for the murder of Grimes; and (3) two concurrent five-year terms of imprisonment on counts four and six. Similarly, after merger, the court sentenced Goode to an aggregate term of 100 years' imprisonment with sixty years of parole ineligibility as follows: (1) fifty years with a parole disqualifier of thirty years for the murder of Rahman; (2) a consecutive term of fifty years with a parole disqualifier of thirty years for the murder of Grimes; and (3) two concurrent five-year terms of imprisonment on counts four and six.

This appeal followed.

II.

On appeal, Davis presents the following arguments for our consideration:

POINT I: THE JURY DELIBERATION PROCESS WAS SO TAINTED THAT IT DEPRIVED MR. DAVIS OF A FAIR TRIAL BECAUSE (A) DELIBERATING JUROR NUMBER FIVE WAS EXCUSED FOR REASONS OTHER THAN HIS INABILITY TO CONTINUE (B) ONCE JUROR NUMBER 5 WAS DISCHARGED, A MISTRIAL WAS REQUIRED BECAUSE THE JURY HAD BEEN TAINTED BY THE EXCUSED JUROR AND THE JURY HAD DELIBERATED SO FAR TOWARDS COMPLETION THAT THE RECONSTITUTED JURY WOULD NOT HAVE BEEN CAPABLE OF CONSIDERING MR. DAVIS' GUILT OR INNOCENCE ANEW; AND (C) AN ABSCONDING JUROR WAS ALLOWED TO CONTINUE TO DELIBERATE AFTER BEING APPREHENDED BY A SHERIFF'S OFFICER AND ORDERED TO RETURN TO COURT. POINT II: THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY, SUA SPONTE, WITH SELF-DEFENSE. (Not Raised Below)

POINT III: THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY, SUA SPONTE, WITH PASSION PROVOCATION MANSLAUGHTER. (Not Raised Below).

POINT IV: THE TRIAL COURT ERRED BY GRANTING THE STATE'S N.J.R.E. 404(b) MOTION TO INTRODUCE TESTIMONY THAT THE DEFENDANTS SOLD DRUGS OUT OF 182 BAXTER TERRACE AND THERE WAS A DISPUTE BETWEEN THE DEFENDANTS AND VICTIMS OVER THIS TERRITORY TO SELL DRUGS. POINT V: THE TRIAL COURT ERRED BY ADMITTING THE PRIOR INCONSISTENT STATEMENT OF RONALD ALSTON.

POINT VI: THE TRIAL COURT ERRED BY PERMITTING RONALD ALSTON TO TESTIFY IN A CLEARLY INTOXICATED STATE IN VIOLATION OF N.J.R.E. 601 AND ERRED BY DENYING MR. DAVIS' MOTION FOR A MISTRIAL AND SEVERANCE.

POINT VII: THE TRIAL COURT ERRED BY DENYING MR. DAVIS' MOTION TO SUPPRESS THE EYEWITNESS' IDENTIFICATION, BECAUSE THE PRETRIAL IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE, WHICH CAUSED A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION.

POINT VIII: THE TRIAL COURT ERRED BY ALLOWING THE STATE TO INTRODUCE A PHOTOGRAPH OF AN UNRELATED MASK WITH THE FACE CUT OUT BECAUSE ITS PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE AND MISLEADING THE JURY. POINT IX: THE PROSECUTOR COMMITTED MISCONDUCT BY ELICITING TESTIMONY FROM THE STATE'S BALLISTIC EXPERT THAT THE MURDER WEAPON WAS USED IN A PRIOR SHOOTING, KNOWING THIS EVIDENCE WAS INADMISSIBLE, AND THE TRIAL COURT ERRED BY NOT GIVING A LIMITING INSTRUCTION SUA SPONTE. (Not Raised Below). POINT X: THE TRIAL COURT ERRED BY EXCLUDING MR. DAVIS FROM THE VOIR DIRE OF JUROR NUMBER

5 BEFORE HIS DISCHARGE AFTER THE JURY HAD DELIBERATED ONE DAY.

POINT XI: MR. DAVIS WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S (A) ERRONEOUS INTRODUCTION OF INADMISSIBLE EVIDENCE OF A PRIOR SHOOTING MR. DAVIS WAS ALLEGED TO HAVE BEEN INVOLVED;

(B) FAILURE TO OBJECT WHEN THE STATE ELICITED TESTIMONY OF A SEARCH WARRANT FOR MR. DAVIS' HOME. (Not Raised Below).

Goode presents the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED WHEN IT DISCHARGED A JUROR FOR NON-PERSONAL REASONS RELATED TO HIS FULL DAY OF DELIBERATIONS AND SUBSTITUTED AN ALTERNATE IN LIEU OF DECLARING A MISTRIAL. (Partially Raised Below).

POINT II: THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO THE DEFENSE OF SELF-DEFENSE IN RELATION TO EACH OF THE OFFENSES IN THE INDICTMENT AND AS TO PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below).

POINT III: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS ADMISSION OF OTHER CRIMES EVIDENCE.

POINT IV: THE TRIAL COURT ERRED IN ADMITTING PRIOR INCONSISTENT STATEMENTS UTTERED BY ALSTON.

POINT V: THE STATE ERRED IN REFUSING TO GRANT A MISTRIAL BECAUSE OF TESTIMONY WHICH IRREPARABLY AROUSED THE JURY'S PASSIONS. POINT VI: THE PROCEDURE UTILIZED RELATING TO THE OUT-OF-COURT IDENTIFICATION OF APPELLANT BY MUHAMMAD HOLIDAY WAS UNDULY SUGGESTIVE.

After reviewing the record in light of the contentions advanced on appeal, we affirm.

A.

1.

We first address defendants' arguments that reversible error was committed when the trial court (1) discharged a juror after one day of deliberations, (2) seated an alternate in the place of the excused juror, and (3) refused to grant a mistrial.

On July 9, 2009, the first day of jury deliberations, at approximately 4:15 p.m., the court received a note from juror Mr. Fisher*fn3 who asked: "[a]m I safe when I leave the building and at home?" Electing to speak directly with the juror outside the presence of other jurors, the trial judge held a conference in chambers, with all counsel (but not defendants) present.

Fisher denied that anything had happened since he was selected as a juror that caused him to express the concern that was reflected in his note. He simply indicated that it was a "serious case" and he did not "want anything to happen to [him]." However, Fisher also said he could not make a decision in the case "without the interference or the intrusion of emotions." He said that he told other jurors that "sometimes [he] was nervous" and he "expressed one time that [he] was scared, and that was all."

The trial court decided to immediately excuse Fisher and question the balance of the jurors as to what, if anything, Fisher had said to them. The prosecutor and Goode's counsel agreed, while Davis's attorney took no position.

Four days later, at the outset of the next available day of deliberations,*fn4 counsel for Davis objected to the court's proposal to interview members of the jury panel, stating: "Judge, I have an objection to . . . anybody speaking to the

[j]ury once they've been sent out to deliberate." Although counsel expressed an understanding of the court's quandary, he "still object[ed] to talking to any of the jurors about anything." The court ruled that it would be "committing plain error, clear error, reversible error if [it] did not make inquiry as to what, if any, impact those statements [of Fisher] may have had on the balance of the panel." It interviewed each juror individually in chambers with all counsel present and specifically advised jurors not to mention anything about the status of their deliberations during the course of the questioning to anyone.

None of the jurors definitively knew why Fisher had written his note or were aware of its contents. Fisher had refused to discuss his concerns with other jurors, wanting only to speak to the trial judge. Several jurors surmised that Fisher was nervous or scared because he lived in Newark and had seen some of the courtroom spectators while traveling on public transportation. All of the jurors said that they could decide the case impartially and were unaffected by Fisher's situation or the fact that he had been excused.

At the conclusion of the interviews, the prosecutor requested that an alternate juror be authorized to join the deliberating jury. Counsel for Goode agreed, although he requested that the court recharge the jury that jurors had to reach their decision without fear or bias. Counsel for Davis requested a mistrial, arguing that it was inappropriate to speak with the jurors and that he was concerned that the jury was paying too much attention to the spectators in the courtroom and feeling nervous.

The court decided to empanel an alternate juror and have the re-constituted jury begin deliberations anew, explaining as follows:

Counsel, I'm satisfied of the following. That, one, to a person, all [eleven] jurors indicated that nothing has happened in the jury room that would prevent them from continuing their deliberations, and being fair and impartial, and would . . . in any way affect their ability to decide this case based only on the issues presented in this courtroom.

I am not . . . inclined to recharge them with regard to deciding this case without fear, et cetera. Though some jurors have indicated that's what they thought the issue was, I, during the course of my inquiry in chambers, did not confirm or deny what the personal problems of [Fisher] were, and, if I give such a charge, I think I would be, in fact, giving weight and credence to their speculation as to what [Fisher]'s issues were.

Thereafter, a substitute juror was selected and the court instructed the jurors to "set aside and disregard whatever may have occurred and anything [that] may have [been] said in the jury room," and "give no weight to any opinion that may have been expressed by [Fisher]." Also, the court explained,

As I've indicated before, especially with the replacement of [Mr. Fisher], that part of your . . . job does not include any speculation, sympathy, bias, guessing, or anything like that, but you are to decide this case based on the evidence introduced at this trial in order to reach a fair and impartial . . . verdict.

2.

Whether a motion for a mistrial should be granted rests within the sound discretion of the trial judge. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The standard a trial judge must apply is whether the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury. The consideration of the mistrial motion, however, has one additional element, namely the court's determination of whether or not the prejudice resulting from the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps. [Pressler & Verniero, Current N.J. Court

Rules, comment 5.1 on R. 3:20-1 (2012).]

The grant of a mistrial should be exercised only to prevent manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). Thus, we defer to the trial judge's decision and will not intervene when a mistrial has been denied unless there was a clear showing of a mistaken exercise of discretion, State v. Winter, 96 N.J. 640, 646-47 (1984), or if "manifest injustice would . . . result," State v. LaBrutto, 114 N.J. 187, 207 (1989).

Trial courts are authorized to excuse jurors "because of illness or other inability to continue" and replace them with an alternate if deemed appropriate. R. 1:8-2(d)(1); State v. Valenzuela, 136 N.J. 458, 476 (1994). Substitution of a juror does not impair a defendant's right to a fair and impartial jury if the reason for excusing the juror "'relate[s] exclusively to the personal situation of the juror himself and not to his interaction with the other jurors or with the case itself, [because] they are ordinarily not circumstances having the capacity to affect the substance or the course of the deliberations.'" Id. at 468 (quoting State v. Trent, 157 N.J. Super. 231, 239 (App. Div. 1978), rev'd on other grounds, 79 N.J. 251 (1979)).

The reason for Fisher's excusal was personal to him. The trial court's management of the events surrounding Fisher's unease as a juror was appropriate to the circumstances and fully sufficient to satisfy due process concerns. There was an adequate reason to excuse Fisher. The rationale was divorced from the inner workings of the trial and a mistrial was wholly unwarranted given the stage of the proceedings.

3.

Next, we consider the argument that the deliberations of the initial jury had reached an advanced stage, thus precluding reconstitution of the jury. State v. Jenkins, 182 N.J. 112, 131 (2004) (noting that "there are times when jury deliberations have proceeded too far to permit replacement of a deliberating juror with an alternate"). Juror substitution is improper when a jury is so far along in its deliberations that it would be unable to impartially begin deliberations anew. State v. Corsaro, 107 N.J. 339, 349-51 (1987).

There is "[n]o bright line rule in respect of the length of jury deliberations [that] triggers a finding that deliberations have progressed too far to permit the substitution of an alternate." State v. Williams, 171 N.J. 151, 169 (2002). As a general rule, however, "[t]he longer the period of time the jury deliberates, the greater is the possibility of prejudice should a juror be substituted or replaced." Jenkins, supra, 182 N.J. at 132 (quoting State v. Miller, 76 N.J. 392, 407 (1978)). However, "[t]he concern in determining whether substitution can take place at a given point in the deliberations is not merely the length of time that the jury has deliberated but the effect that the progress in deliberations will have on the reconstituted jury's ability truly to begin deliberations anew." Valenzuela, supra, 136 N.J. at 474-75. Where a jury is "well entrenched," it is highly doubtful that a jury will heed the direction to deliberate anew. State v. Williams, 377 N.J. Super. 130, 150 (App. Div.), certif. denied, 185 N.J. 297 (2005).

The initial jury deliberated for approximately five hours prior to Fisher's note. During that time, the court was asked four separate questions, only one of which was substantive: (1) "[w]e wanted to know if [Mrs.] Holiday's statement or tape is available"; (2) "[c]an we have the guns removed from the jury room"; (3) "[w]e want the definition of agg[gravated] and reckless manslaughter"; and (4) Fisher's "[a]m I safe when I leave the building and go home?" The reconstituted jury commenced deliberations four full days later and deliberated for approximately eight hours over the next three days when it finally indicated that a unanimous verdict had been reached.

We are unable to agree with defendants' arguments that these circumstances rendered the trial court's substitution erroneous. We discern nothing in this record to suggest that Fisher's situation was based upon anything other than his subjective concerns, unrelated to the substantive issues in the case. It is pure conjecture to suggest that at the time Fisher sent his note, the views of other jurors had sufficiently crystallized to a point that a substitution would render renewed deliberations futile. Evidence of jury entrenchment is absent from the record. The trial court did not deprive defendants of any due process rights.

Rule 1:8-2(d)(1) provides: "When such a substitution of an alternate juror is made, the court shall instruct the jury to recommence deliberations and shall give the jury such other supplemental instructions as may be appropriate." The court must also instruct the jury in clear and unequivocal terms that it must begin its deliberations anew and in effect, start over. Trent, supra, 79 N.J. at 255. We are satisfied that these obligations were properly fulfilled by the trial court.

B.

Davis also argues that reversible error was committed by allowing a different juror, characterized by him as an "absconding juror," to continue to deliberate. We disagree.

Three and one-half hours into renewed deliberations, the jury advised the trial court that it "[could not] come to a unanimous decision." The court, "[g]iven the length of this case," decided not to declare a mistrial and instead gave additional instructions and told the jury to keep deliberating. However, after another ninety minutes of deliberations and following the lunch break, the jury came to a standstill because one juror, Mr. King,*fn5 failed to return from lunch. Several unidentified jurors indicated to court staff that they were not sure whether King planned to return.*fn6

At 3:00 p.m., the court asked the Sheriff's Department to send a car to King's address to ensure his well-being. The court sent the other jurors home, directing them to return to court the next morning. A Sheriff's Officer ultimately located King at his home shortly after 4:00 p.m. The trial court spoke briefly with him by telephone and instructed him to return to court the next day so that he could explain himself.

The following morning, King described what happened:

Right after lunch, I took a few Nyquil; I had a headache, was not feeling well. I went home for lunch, and I passed out, and by the time I woke up, I realized I was late, and I just panicked; I didn't call or anything.

When asked by the court whether "anything occurred that would affect [his] ability to continue as a juror on this case," King indicated that he could continue with deliberations and make a decision without any prejudice or bias of any kind.

In a sidebar conference out of King's presence, Davis's counsel stated, "[t]his man lied . . . in open court today. It was bullshit -- excuse my language -- about he took a couple [of] Nyquils and laid down. He told his other jurors he was leaving. He didn't tell us the truth." Defense counsel requested that the court ask the other jurors what King had said to them when he left for lunch the day earlier. He recalled that several jurors had indicated to the court officers that King had said that he was "out of here" and that "he'd had it." Counsel also wanted the court to find out whether the jury could continue to deliberate despite any frustration with King.

After a discussion amongst counsel about how to proceed, during which defendants' attorneys offered to proceed with eleven jurors, the trial court ruled that King's circumstances did not fall within Rule 1:8-2(d), and he would not be removed from the jury. After the prosecutor declined to consent to an eleven-person venire, the court instructed King to remain a part of the jury panel and ordered the jury to continue its deliberations. Less than three hours later, the verdict was announced.

Davis argues that King's story was clearly fabricated and a mistrial was necessary to ensure the integrity of the administration of justice. He posits the following: (1) King was likely a lone dissenting juror who chose to "abscond" rather than face the other eleven jurors; (2) the Sheriff's Officer who found King undoubtedly "would have forcibly brought [King] back to court if he resisted"; and (3) the jury likely returned its verdict before lunch because they believed that King was going to "run again at the lunch break." These conjectural musings are insufficient to undermine our confidence in the trial court's management of the situation.

We review the trial court's findings by application of the standard enunciated in State v. Locurto, 157 N.J. 463, 471 (1999), which requires appellate deference to factual findings when those findings could reasonably be reached through reliance on credible evidence in the record. See also State v. Diaz-Bridges, 208 N.J. 544, 565 (2012) (reiterating that appellate courts must give due deference to trial courts' fact-findings). Only when the record produces a "feeling of 'wrongness'" -- that is, when the appellate court is "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" -- will we disregard a judge's factual finding. Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Having applied this standard of review, we defer to the trial court's acceptance of King's explanation and its ruling to restore his place on the deliberating jury was not a miscarriage of justice.

C.

Defendants contend for the first time on appeal that the trial court committed plain error in failing to charge the jury on passion/provocation manslaughter and self-defense. We disagree.

The State requested that the lesser-included offense of passion/provocation manslaughter be charged to the jury. However, both defense attorneys agreed that neither passion/provocation manslaughter nor self-defense were aspects of the case. Counsel for Davis articulated the strategy as follows:

I think that this is a yes or no case. Either they believe that these guys had a plan to go out and kill these people, and they killed these people on purpose, with intent, and that's murder, and either it's murder or it's not. Either they believe these people, that these guys, one or two of them, did it, or they don't.

The court ruled that it would charge all of the lesser-included offenses of murder except for passion/provocation manslaughter because it did not "find passion/provocation to be in this case." Although the court made no formal ruling regarding self-defense, no such charge was included in the final jury instructions.

Because defendants acquiesced at trial to exclude the passion/provocation manslaughter and self-defense jury charges, we must consider whether the alleged errors amount to plain error. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of a '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

1.

"Criminal homicide constitutes manslaughter when . . . [a] homicide which would otherwise be murder . . . is committed in the heat of passion resulting from a reasonable provocation."

N.J.S.A. 2C:11-4(b)(2). This provision codifies the common-law crime of voluntary manslaughter. State v. Robinson, 136 N.J. 476, 482 (1994). "Passion/provocation manslaughter has four elements: (1) reasonable and adequate provocation; (2) no cooling-off time in the period between the provocation and the slaying; (3) a defendant who actually was impassioned by the provocation; and (4) a defendant who did not cool off before the slaying." State v. Josephs, 174 N.J. 44, 103 (2002) (citing State v. Mauricio, 117 N.J. 402, 411 (1990)).

"Regarding the adequacy of the provocation, '[t]he question essentially amounts to whether loss of self-control is a reasonable reaction.'" Mauricio, supra, 117 N.J. at 412. "[T]he provocation must be 'sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control.'" Ibid. (second and third alterations in original) (quoting State v. King, 37 N.J. 285, 301-02 (1962)).

"Little more than a 'scintilla of evidence' is required to warrant submitting to the jury passion/provocation manslaughter as a lesser-included offense." State v. Heslop, 135 N.J. 318, 326-27 (1994) (citing State v. Crisantos, 102 N.J. 265, 278 (1986)). Moreover, "[s]ubmission of the passion/provocation charge will not be foreclosed even where ample evidence demonstrates that 'defendant's homicidal act was coolly calculated.'" Id. at 327 (quoting Mauricio, supra, 117 N.J. at 417). Nevertheless, "a court may charge a jury on lesser-included offenses such as passion/provocation manslaughter only when there is a rational basis in the evidence for a verdict convicting the defendant of such an offense." State v. Abrams, 256 N.J. Super. 390, 397 (App. Div.) (citing N.J.S.A. 2C:1-8(e); State v. Ramseur, 106 N.J. 123, 269-70 (1987)), certif. denied, 130 N.J. 395 (1992).

Here, there was no rational basis to support a charge of passion/provocation manslaughter. Defendants belatedly insist that passion/provocation manslaughter should have been charged because the record reflects that they were provoked by shots fired at them by the two victims. Contrary to defendants' representations, the record actually reflects that they ambushed the two victims from above, taking Rahman down immediately before he had any opportunity to discharge his weapon, and then repeatedly firing at Grimes as he fled until he too collapsed in a hail of bullets. The planned nature of the attack was evidenced by the fact that a van was waiting to carry defendants away. As recognized by counsel at trial, any provocation had occurred days earlier and there was no basis for the jury to consider passion/provocation manslaughter.

2.

N.J.S.A. 2C:3-4(a) provides that "[t]he use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." However, according to N.J.S.A. 2C:3-4(b)(2):

The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:

(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating . . . .

Whether self-defense should be charged to the jury turns on whether it is raised by the evidence. State v. Blanks, 313 N.J. Super. 55, 64-70 (App. Div. 1998). An instruction on self- defense must be given if there is evidence that would support it in either a defendant's or the State's case. State v. O'Carroll, 385 N.J. Super. 211, 236 (App. Div.), certif. denied, 188 N.J. 489 (2006). However, we have held that it is not plain error to fail to charge self-defense that was suggested by one witness's testimony, where the charge was not requested and would have been prejudicial to the defendant's strategy in the case. State v. Vasquez, 265 N.J. Super. 528, 547-50 (App. Div.), certif. denied, 134 N.J. 480 (1993).

Defendants insist that the State presented evidence that the victims were the aggressors. Davis maintains that the record reflects that the victims were out to kill defendants and that both victims fired at him. Goode argues that it was entirely possible, based upon the evidence adduced by the State, that the victims fired the first shots.

Our review of the record provides no support for defendants' contentions. Even an indulgent review reveals that defendants attacked the victims instantaneously after they finished speaking with Mr. Holiday and emerged from his apartment, shooting at them from above and behind, and that Davis continued to fire at Grimes as he attempted to flee. No spent shell casings were located from the sawed-off shotgun found under Rahman's body. As such, and because a self-defense charge would have been prejudicial to defendants' strategy during trial, the trial court did not wrongfully deny them the benefit of a charge on self-defense.

D.

Next, defendants contend that the trial court erred in admitting Mr. Holiday's and Salaam Grimes's testimony that defendants were drug dealers involved in a territorial dispute with the victims. Given the circumstances of how the killings commenced in that early afternoon of January 7, 2007, evidence regarding a supposed territorial dispute between drug traffickers was highly relevant to explain why these homicides occurred.

At a pretrial evidentiary hearing, Mr. Holiday testified that he had seen defendants selling drugs on many occasions in the hallway in front of his apartment. Just prior to the fatal shootings, several of Mr. Holiday's neighbors told him that the victims and defendants were contesting the hallway territory. He subsequently saw Rahman and Grimes selling drugs out of the hallway; it appeared that they had taken "the building over." Mr. Holiday spoke to Rahman and Grimes who confirmed that indeed there was an existing dispute with defendants. Rahman told Mr. Holiday that defendants had been robbed a week earlier because "they wouldn't let [us] sell out of [our] own building, and [we] lived there, so that was to get them . . . to go elsewhere."

Corroborative testimony at the evidentiary hearing was provided by Salaam Grimes and Ghanne Rahman.*fn7

The State argued that it would be difficult to place these murders in context or demonstrate a motive for the events of January 7, 2007, without testimony about the ongoing dispute between the victims and defendants. The pretrial judge (who was not the trial judge) noted that N.J.R.E. 404(b) was applicable as to the testimony of Mr. Holiday and Grimes that defendants had been using the hallway for their own drug enterprise. The judge noted that motive was a key issue in the case. Evidence that defendants and the victims were competitors in the drug trade was essential. Mr. Holiday's and Grimes's direct observations in this regard were found to be clear, credible, and close in time to the shootings. The pretrial judge was satisfied that any prejudice engendered by their testimony could be remedied by an appropriate limiting instruction. Notably, the trial judge ultimately administered multiple limiting instructions regarding this evidence.

Pursuant to N.J.R.E. 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Our Supreme Court has clarified that such evidence may be admitted provided it meets the following test:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Cofield, 127 N.J. 328, 338 (1992) (citation omitted).]

This analysis is intended to reduce the underlying danger that the jury may convict a defendant because he or she is "a 'bad' person in general." State v. Rose, 206 N.J. 141, 159 (2011) (citing Cofield, supra, 127 N.J. at 336).

The second prong of the Cofield test requiring temporality and similarity of conduct is not always applicable and thus not required in all cases. Id. at 160; see also State v. Collier, 316 N.J. Super. 181, 194 (App. Div. 1998) (where motive is sought to be shown, similarity is not a requirement for admissibility), aff'd o.b., 162 N.J. 27 (1999).

"Once evidence of other crimes or civil wrongs is offered by the prosecution, the trial court is required to conduct an [N.J.R.E. 104(a)] hearing, either in limine or at trial, to determine whether the particulars of the other crimes are admissible." State v. Ellis, 280 N.J. Super. 533, 546 (App. Div. 1995) (citing State v. Stevens, 222 N.J. Super. 602, 614 (App. Div. 1988), aff'd, 115 N.J. 289 (1989)). At this hearing, the State must prove that the other crimes occurred by clear and convincing evidence. Rose, supra, 206 N.J. at 160. A trial court's conclusion with respect to the balancing test should only be disturbed where there is a clear error of judgment. Id. at 158.

When evidence is admitted for one purpose but is not admissible for another purpose, "the judge, upon request, shall restrict the evidence to its proper scope and shall instruct the jury accordingly but may permit a party to waive a limiting instruction." N.J.R.E. 105. Notwithstanding the foregoing, in the context of other-crime evidence, our Supreme Court has held that once the prosecution has demonstrated the necessity of the other-crime evidence to prove a genuine fact in issue and the court has carefully balanced the probative value of the evidence against the possible undue prejudice it may create, the court must instruct the jury on the limited use of the evidence. [Cofield, supra, 127 N.J. at 340-41.]

This instruction must "'clarify for the jury the narrow distinction between the permissible and impermissible uses of the other-crime evidence.'" Id. at 341 (quoting Stevens, supra, 115 N.J. at 308-09); accord State v. Blakney, 189 N.J. 88, 92-93 (2006).

We agree with the pretrial judge that evidence regarding a supposed territorial dispute between putative drug dealers that led to the exchange of gunfire and the victims' deaths was highly relevant. Additionally, because the evidence that those involved were fearsome competitors in the drug trade illuminated a motive for the crimes, prong two of the Cofield test was not applicable. Finally, our review of the multiple limiting instructions indicates that the jury was properly confined to the issue of motive when it considered the evidence that defendants were drug dealers, that they were involved in a territorial dispute with the victims, and that defendants had been robbed.

E.

Defendants challenge the trial court's evidential ruling allowing Alston's January 8, 2007 statement to be considered by the jury. Davis further contends that Alston was intoxicated when he testified at trial and he was therefore an incompetent witness. These arguments are unpersuasive.

1.

Alston testified that after being harassed by the police, arrested, and caused to spend a night in jail, he gave a recorded statement indicating that Goode was at his apartment throughout the morning hours of January 7, 2007. Alston maintained, however, that he was drunk when he gave this statement, that the police told him what to say, and that he never saw Goode that morning.

The court held an N.J.R.E. 104 hearing regarding the admissibility of Alston's statement. Detective Lydell James testified that at approximately 9:30 p.m. on January 7, 2007, he and two other officers knocked on Alston's apartment door to investigate a report that he might have information about the shootings. The detective denied that they kicked down Alston's door. Alston was initially abusive upon being asked about the shootings, but eventually he agreed to come to police headquarters to give a statement. James indicated that Alston had probably been drinking alcoholic beverages, but he could not determine whether he was actually intoxicated.

At the police station, Alston became abusive and evasive in his answers, and James ultimately arrested him on an outstanding warrant and placed him in a cellblock. He gave Alston a business card and told him to call if he wanted to talk.

The following morning Alston called and advised that he was willing to give a statement. According to James, Alston -- who had been in custody for approximately ten hours -- was not intoxicated and at 2:30 p.m., James and another detective took an audiotaped statement from Alston without any communication difficulties. In this statement, Alston admitted that Goode was in his apartment on the morning of the shootings. James denied that he threatened Alston or offered him anything, such as his release from jail, in exchange for his statement.

At the conclusion of the hearing the court ruled that Alston's prior statement was admissible in redacted form as it was inconsistent with his trial testimony and reliable based upon the relevant Gross*fn8 criteria. The court never specified the criteria it was relying upon.

According to N.J.R.E. 803(a)(1), a statement previously made by a person who is a witness at a trial is admissible provided it would have been admissible if made by the declarant while testifying and the statement is inconsistent with the witness's testimony at the trial. Before a statement offered pursuant to this rule may be admitted, the court must determine whether the circumstances under which it was made suggest that it is reliable. Gross, supra, 216 N.J. Super. at 108-10.

The proponent of the statement bears the burden of proof in this regard by a preponderance of the evidence. Id. at 115. Circumstances a court should consider include:

(1) the declarant's connection to and interest in the matter reported in the outof-court statement; (2) the person or persons to whom the statement was given; (3) the place and occasion for giving the statement; (4) whether the declarant was then in custody or otherwise the target of investigation; (5) the physical and mental condition of the declarant at the time; (6) the presence or absence of other persons;

(7) whether the declarant incriminated himself or sought to exculpate himself by his statement; (8) the extent to which the writing is in the declarant's hand; (9) the presence or absence, and the nature of, any interrogation; (10) whether the offered sound recording or writing contains the entirety, or only a portion or a summary, of the communication; (11) the presence or absence of any motive to fabricate; (12) the presence or absence of any express or implicit pressures, inducements or coercion for the making of the statement; (13) whether the anticipated use of the statement was apparent or made known to the declarant;

(14) the inherent believability or lack of believability of the statement; and (15) the presence or absence of corroborating evidence. [Id. at 109-10.]

If the court admits a prior inconsistent statement based upon a finding that there are sufficient indicia of reliability, it is still for the jury to determine the credibility of the witness and the probative value of the evidence. State v. Spruell, 121 N.J. 32, 46 (1990). The court must instruct the jury to consider the same circumstances it previously considered in admitting the statement. Gross, supra, 121 N.J. at 16-17.

Defendants contend that the trial court abused its discretion in admitting Alston's statement where Alston was extremely intoxicated at the time he gave it and spoke to police only to secure his release from jail. Additionally, Davis argues that Alston's statement should have been deemed inadmissible because: (1) Alston was subjected to extensive interrogation both before and after he was placed in custody;

(2) Alston's original statements to police on January 7, 2007, were not recorded; (3) the statement was not believable; and (4) there was no corroborating proof that Goode was in Alston's apartment prior to the shootings.

The record reveals the opposite. At the time Alston's statement was tape-recorded, he had been in the presence of the police for more than sixteen hours, which undermines the claim that he was intoxicated. Additionally, the record does not reflect that Alston was subjected to extensive interrogation, or that he was either promised release or actually released from jail upon the completion of his statement. Further, there was nothing inherently untrustworthy about Alston's statement and the jury was free to contrast it with his denials of any contact with Goode on the morning of the shootings. Finally, while it is true that no one else testified to Goode's presence in Alston's apartment, the jury was properly instructed how to consider Alston's recorded statement.

2.

Davis further contends that the trial court erred by permitting Alston to testify in a clearly intoxicated state. Davis's trial counsel expressed concern that Alston was going to be a disastrous witness because he was the "town drunk," acted "unstable," and "we don't know what he's going to say." Counsel requested that the anticipated Gross hearing take place before Alston's trial testimony, so that Alston's condition could be assessed. The court denied the request after the prosecutor represented that he would lay the appropriate foundation as to Alston's ability to testify.

A few minutes into Alston's testimony, the trial court was forced to instruct Alston outside of the presence of the jury to focus on the prosecutor's questions, refrain from making speeches, and use appropriate language. Because Alston remained evasive and belligerent in answering the prosecutor's ensuing questions, the court first admonished Alston in front of the jury and then excused the jury for the following exchange:

THE COURT: Mr. Alston, you said that --

. . . . [Alston]: Right.

THE COURT: -- that on January 8th, you were drunk. [Alston]: Yes.

THE COURT: Because of the way you're answering my questions -- or trying -- or not answering the questions of the prosecutor, are you drunk now, sir? [Alston]: No.

THE COURT: Have you been drinking today? [Alston]: Yes.

THE COURT: When was the last time you had a drink, sir? [Alston]: Before I got here.

THE COURT: So about what, five minutes before you got here, an hour before you got here, this morning when you got up, what? [Alston]: Umm, no. It's been a couple of hours before I got here.

THE COURT: How much did you have to drink a couple hours before you got here, sir? [Alston]: Probably some Sangria, some Paul Masson and Coors Light.

THE COURT: And a quart of Vodka. [Alston]: No. No vodka.

THE COURT: . . . Did you drink so much that you're drunk? [Alston]: But I'm not drunk now.

THE COURT: Are you high?

[Alston]: No, I don't get high.

THE COURT: What are you now? Are you sober? [Alston]: Yes, I am.

THE COURT: Then you have no problem in listening to the questions and answering the questions that I ask, sir? [Alston]: No, I don't have no problem . . . . But . . . [the prosecutor is] argumentative, and he's . . . actually manipulating things that was being said and done.

THE COURT: Mr. Alston . . . there are four attorneys . . . to keep the State from manipulating things in an inappropriate or wrong way, and that's why I'm sitting here. [Alston]: Okay.

THE COURT: . . . [A]ll you [have] to do is answer the questions to the best of your ability.

[Alston]: All right.

THE COURT: You don't have to argue. You have to answer the questions. Do you understand, sir? [Alston]: Okay.

At the conclusion of this colloquy, Davis's counsel requested a mistrial or severance, arguing that the prosecutor had inappropriately called Alston as a witness without previously assessing his sobriety and despite his knowledge that Alston would be a hostile witness. Counsel maintained that defendants were now being prejudiced because Alston was arguing with the prosecutor, destroying his own credibility in an apparent attempt to protect defendants, and making a "mockery" of the proceedings.

Goode's attorney asserted that it appeared that the prosecutor was attempting to elicit "hostility from [Alston] as a way of impacting on this particular proceeding," although he could not say whether the impact was negative or positive vis-avis his client.

The court denied the application for a mistrial and the remainder of the prosecutor's direct examination consisted of approximately eleven more questions, during which the court intervened on several occasions to urge Alston to respond appropriately. Alston was subsequently cross-examined by both defense attorneys with only a single instance of court intervention. He responded willingly and coherently to all of the questions posed by defense counsel, and adamantly insisted that he was drunk when he gave his audiotaped statement and that he merely said what the police told him to say. Notably, Alston was again confrontational during the prosecutor's brief redirect, but compliant when questioned by defense counsel on recross.

Davis now insists that the trial court erred by permitting Alston to testify in a clearly intoxicated state in violation of N.J.R.E. 601, which states:

Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.

The determination of whether a person is competent to be a witness lies within the discretion of the trial judge. State v. G.C., 188 N.J. 118, 132 (2006). Any claim of witness disqualification must be strictly construed against the exclusion and in favor of the admission of relevant testimony that the witness might offer. Germann v. Matriss, 55 N.J. 193, 216 (1970).

The record does not reflect that the prosecutor withheld information regarding Alston's condition. Furthermore, the conduct of the proceedings neither reveals that Alston's testimony was in any way unintelligible nor establishes that he was intoxicated. Alston was far from an ordinary taciturn witness, and the trial court intervened appropriately without negatively affecting defendants' right to a fair trial. The refusal to grant a mistrial was unremarkable, and we are satisfied that due process was properly observed and applied.

F.

Defendants contend that Mr. and Mrs. Holiday's out-of-court identifications of defendants were tainted and should not have been admitted into evidence. We disagree.

Prior to trial, the defense moved to suppress these out-of-court identifications. At a Wade*fn9 hearing, Mr. Holiday testified that he witnessed both shootings and that he knew who the perpetrators were because they had been selling drugs outside his apartment door for months. Similarly, Mrs. Holiday testified that she saw defendants together at the time of the shootings on January 7, 2007, but that she saw only Davis actually fire a weapon. These men were not strangers to her since she had observed them around her residence engaged in the sale of drugs.

Because the Holidays knew the perpetrators only by their street names, and not their proper names, the police asked them to look at a catalog of photographs on a computer. At the police station, Mr. and Mrs. Holiday sat together in front of a computer monitor scanning photographs in the presence of a police detective. Simultaneously they spotted Davis, with Mrs. Holiday stating "there he go," to which her spouse responded "yeah." Mr. Holiday then left while Mrs. Holiday continued to look at images on the computer screen. Eventually, Mrs. Holiday identified Goode. When her husband rejoined her and saw Goode's image on the computer he said, "that's him."

At the conclusion of the Wade hearing, the court ruled that the out-of-court identifications were not tainted and were admissible. The court was not troubled by the procedure, because both Mr. and Mrs. Holiday knew the defendants prior to the shootings. Additionally, although the couple identified Davis while sitting together, neither one was leading the other. Furthermore, Mrs. Holiday's identification of Goode was separate from her husband's, and there was no testimony that she directed him to her selection when he re-entered the area and looked at the screen with multiple photographs.

In determining the admissibility of an out-of-court identification, a court must first decide whether the procedure utilized to secure the identification was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 504 (2006). When photographs are used, the risk of improper suggestiveness is increased where the police: (1) display to the witness only the picture of a single individual who generally resembles the person described by the witness; (2) display the pictures of several persons among which the photograph of a single individual recurs or is in some way emphasized; or (3) indicate to the witness that they had other evidence indicating that one of the persons pictured committed the crime. Simmons v. United States, 390 U.S. 377, 383-84, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968).

If the procedure is deemed to be impermissibly suggestive, the court must then decide whether "the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Id. at 384, 88 S. Ct. at 971, 19 L. Ed. 2d at 1253. In other words, the court must determine whether the "identification is otherwise supported by indicia of reliability" which indicate that the "identification was prompted by the eyewitness's own recollection of the crime," and not by the suggestive identification procedure. State v. Santoro, 229 N.J. Super. 501, 504 (App. Div. 1988), certif. denied, 121 N.J. 593 (1990).

This reliability determination must be made from the totality of the circumstances in each particular case. Herrera, supra, 187 N.J. at 506. The specific factors that must be weighed against the "corrupting effect of the suggestive procedure" include the "'opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the time of the confrontation and the time between the crime and the confrontation.'" Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977).

When the court is assured of the reliability of the identification notwithstanding the suggestive nature of the procedure by which it was obtained, the identification may be admitted into evidence. State v. Madison, 109 N.J. 223, 232 (1988). This is because "reliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.

Davis argues that the process by which his photo was selected was violative of the Attorney General Guidelines For Preparing and Conducting Photo and Live Lineup Identification Procedures (Guidelines) and highly suggestive since the Holidays viewed the photographs together and without any police supervision. Davis also insists that the identifications were not otherwise reliable since both witnesses initially reported to police that the perpetrators wore masks. Goode contends that contrary to the court's findings, the evidence presented at the Wade hearing was unequivocal that Mr. Holiday was guided to his photo by his wife, thereby establishing that the identification procedure was suggestive or tainted.

The photographs presented to the Holidays were neither inherently suggestive nor violative of the Guidelines. The police had no suspects at the time the identifications were made, but were instead attempting to link the perpetrators' formal names with their street names. The Holidays were not induced by the police to make a specific identification. Also, the record does not reflect that Mr. Holiday was guided to Goode's photograph by his wife. There was no error by the Law Division in denying defendants' Wade motion to suppress the outof-court identifications.

G.

Except to the extent already addressed, the remaining arguments raised by defendants lack sufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(2). Davis's claims of ineffective assistance of counsel are best left to post conviction review, see State v. Lewis, 389 N.J. Super. 409, 416 (App. Div.), certif. denied, 190 N.J. 393 (2007), and we do not foreclose his ability to raise such claims, subject to our post-conviction rules. R. 3:22-1 to -13.

Affirmed.


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