Argued: September 17, 2013.
Approved for Publication October 17, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-09-3383.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).
Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent ( John J. Hoffman, Acting Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief).
Before Judges FISHER, ESPINOSA and KOBLITZ. The opinion of the court was delivered by FISHER, P.J.A.D.
[433 N.J.Super. 97] FISHER, P.J.A.D.
In the wake of the Supreme Court's landmark decision in the earlier appeal in this matter, State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011), we consider defendant's appeal of the trial court's more recent refusal to exclude eyewitness identification evidence. In examining the issues, we (1) briefly outline the relevant factual circumstances and earlier proceedings, then (2) describe those matters not before us, and finally (3) review the trial court's decision at the most recent Wade hearing, which was based on the test devised by the Supreme Court in the earlier appeal that replaced the test utilized in this State since at least State v. Madison, 109 N.J. 223, 536 A.2d 254 (1988).
Rodney Harper was shot in Camden in the early morning hours of January 1, 2003. Harper and James Womble were drinking and smoking crack that evening at a friend's apartment. Harper left prior to midnight and returned sometime between 2:00 and [433 N.J.Super. 98] 2:30 a.m. Soon after, two men forcibly entered the apartment. Womble knew one of them, codefendant George Clark, who arrived to collect money from Harper. Womble did not know the other intruder.
Harper and Clark went into another room, while the unknown intruder kept Womble away at gunpoint in a hallway. Womble heard an argument in the other room and then a gunshot. As Clark and his confederate departed, Clark warned Womble not to " rat [him] out, I know where you live." Henderson, supra, 208 N.J. at 221, 27 A.3d 872. Harper died on January 10 from a gunshot wound to the chest.
Womble was questioned by Camden County Detective Luis Ruiz and Investigator Randall MacNair on January 11. As the Supreme Court recounted, Womble told them " he was in the apartment when he heard two gunshots outside, that he left to look for Harper, and that he found Harper slumped over in his car in a nearby parking lot, where Harper said he had been shot by two men he did not know." Ibid.
In an interview the following day, the officers confronted Womble with inconsistencies
in his prior statement. Womble responded that he was in fear of retaliation but decided to " come clean." He told the officers of the intrusion and how one culprit held him at gunpoint while the other argued with and eventually shot Harper.
On January 14, the officers had Womble view a photographic array. The nature of that identification has been thoroughly described in the Supreme Court's opinion, id. at 222-25, 27 A.3d 872, as well as our own, State v. Henderson, 397 N.J.Super. 398, 406-07, 937 A.2d 988 (App.Div.2008). Essentially, in initial compliance with the Attorney General's Guidelines for photographic identifications, the array was presented to Womble by Detective [433 N.J.Super. 99] Thomas Weber, who was not investigating the case. Weber properly presented Womble with eight photographs, one of which depicted defendant, and the others were of African-American males of the same approximate age and appearance as defendant. 208 N.J. at 222, 27 A.3d 872. The photographs were also properly shown to Womble one by one. As the Court observed, " Womble quickly eliminated five . . . reviewed the remaining three, discounted one more," and then said " he 'wasn't 100 percent sure of the final two pictures.'" Id. at 223, 27 A.3d 872.
Weber informed the other officers that Womble had narrowed it down to two photographs but could not make a final identification. MacNair and Ruiz then entered the interview room and spoke to Womble; Weber was not present during this discussion. In our earlier opinion, we summarized what the testimony at the earlier Wade hearing revealed about what happened when the investigating officers spoke to Womble:
M[a]cNair testified . . . that he felt Womble was " holding back from us," and so he and Ruiz " wanted to go in and to clarify and be clear on what he was saying to us." He also testified that Womble was concerned about the safety of his elderly father because the second gunman was still at large. M[a]cNair testified that, in order to put Womble's mind at ease, he " told him to focus, to calm down, to relax and that any type of protection that [he] would need, any threats against [him] would be put to rest by the Police Department." Womble then responded that he could make an identification. With that, M[a]cNair and Ruiz left the room.
Officer Weber re-entered the room and again showed Womble the array. This time, according to Weber, Womble " slammed his hand down on the table and said, '[t]hat's the mother fucker there,'" thus positively identifying defendant as one of the men involved in the shooting of Harper.
[397 N.J.Super. at 406, 937 A.2d 988.]
The original trial judge conducted a Wade hearing but concluded the procedure was not suggestive and permitted the State to use at trial evidence of Womble's out-of-court identification of [433 N.J.Super. 100] defendant as the man who held him at gunpoint in the hallway while Clark shot Harper in another room.
At trial, as the Supreme Court observed, " [t]he primary evidence against ...