October 31, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
TRAVIS DAVIS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1987.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Linda M. Claude-Oben, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Simonelli, Koblitz and Accurso.
Defendant Travis Davis was convicted by a jury of two counts of first-degree carjacking, N.J.S.A. 2C:15-2, two counts of second-degree kidnapping, N.J.S.A. 2C:13-1b, two counts of first-degree robbery, N.J.S.A. 2C:15-1, second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. After merging defendant's convictions for robbery and the possession of a firearm for an unlawful purpose with his convictions for carjacking, Judge Lourdes I. Santiago sentenced him to concurrent thirty-year terms of imprisonment on each of the two carjacking counts, and to concurrent ten-year terms on each of the two kidnapping counts, all subject to periods of parole ineligibility and supervision as required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge sentenced defendant to a concurrent five-year term with a three-year period of parole disqualification pursuant to the Graves Act, N.J.S.A. 2C:43-6, for unlawful possession of a firearm, and to a consecutive ten-year term with a five-year period of parole disqualification for the certain persons offense, N.J.S.A. 2C:39-7b. The judge also imposed the appropriate monetary penalties.
Defendant presents the following arguments on appeal:
EYEWITNESS JONES'S OUT-OF-COURT
IDENTIFICATION WAS IRRETRIEVABLY CORRUPTED BY AN IMPERMISSIBLY SUGGESTIVE OUT-OF-COURT IDENTIFICATION PROCEDURE, AND BOTH JONES'S AND ROGERS'S IN-COURT IDENTIFICATIONS LACKED FOUNDATION; THESE UNRELIABLY INADMISSIBLE IDENTIFICATIONS INFECTED THE ENTIRE TRIAL, REQUIRING REVERSAL. (Partially Raised Below).
A. Due To Defense Counsel's Ineffectiveness and Prosecutorial Misconduct, there was no pre-trial Wade Hearing (Not Raised Below).
1. As a Result of Defense Counsel's Failure to Cite Available Evidence, Defendant Was Denied a Wade Hearing.
2. The Prosecutor Made A Material Misrepresentation To The Court When She Said That It Was "Pure Speculation" That Police Told Jones About the Possible DNA Match.
3. Had the Court been informed about the Grand Jury testimony and discovery, it would have granted a Wade hearing.
B. HAD A WADE HEARING BEEN HELD, THE JUDGE WOULD HAVE EXCLUDED JONES'S OUT-OF-COURT IDENTIFICATION.
1. Jones's Out-of-Court Identification Was Inadmissibly Suggestive.
2. The State Could Not Have Met Its
Burden; Jones's Identification Is Not Reliable.
C. EVEN IF THE OUT-OF-COURT IDENTIFICATION WAS ADMISSIBLE, DUE TO DEFENSE COUNSEL'S INEFFECTIVENESS, PROSECUTORIAL MISCONDUCT, AND THE JUDGE'S ERRORS, THE FLAWED EYEWITNESS IDENTIFICATIONS DOMINATED AND INFECTED THE TRIAL (PARTIALLY RAISED BELOW).
1. Both Victims' In-Court Identifications Were Unreliable Products Of Imper-missibly Suggestive Procedures And Should Have Been Excluded From Trial. (Not Raised Below).
2. The Prosecutor Committed Reversible Error When She Misstated Critical Evidence, Improperly Bolstered Her Witnesses, And Argued That No Witnesses Testified That Rogers Seemed Drunk, Yet A Non-Testifying Responding Officer Noted In His Report That Rogers Smelled Of Alcohol And Could Not View Pictures That Night Due To Intoxication (Partially Raised Below).
D. EVEN IF THE IDENTIFICATIONS WERE ADMISSIBLE, THE JUDGE'S FAILURE TO ADEQUATELY INSTRUCT THE JURY REGARDING HOW IT SHOULD EVALUATE IDENTIFICATION EVIDENCE WAS PLAIN ERROR AND MANDATES A NEW TRIAL (NOT RAISED BELOW).
E. THE CUMULATIVE EFFECT OF THE AFOREMENTIONED ERRORS DENIED [DEFENDANT] A FAIR TRIAL.
BECAUSE THE GUN WAS UNLOADED, THE CARJACKING WAS NOT AMONG THE MOST SERIOUS OFFENSES OF ITS CLASS, AND A 30-YEAR NERA TERM IS EXCESSIVE; ADDITIONALLY, THE CERTAIN-PERSONS SENTENCE SHOULD RUN CONCURRENTLY.
On June 17, 2007 at "a little after 10:00 p.m., " Stephen Jones and Kevin Rogers entered Burke's Tavern in Jersey City to buy a case of beer. The two men had spent the day in Brooklyn at a community-sponsored Father's Day cookout where they acquired new baseball caps, which they were still wearing when they stopped at Burke's on their way home. When they returned to Jones' black Ford Expedition, Rogers got into the front passenger seat as Jones put their purchases into the back seat from the driver's side. Defendant and another man approached Jones from behind. Defendant put a gun to the back of Jones' head, pushed him into the backseat of the car and got in behind him. Defendant's accomplice got into the front seat and the two men drove away with Jones and Rogers trapped inside.
Defendant and his accomplice robbed Jones and Rogers of their money, watches and jewelry. After driving a few blocks, the men pulled over, and defendant and his accomplice switched seats. Defendant drove with his left hand and kept the gun trained on Rogers in the front seat. Jones was in the middle of the back seat, pushed up against a cooler sitting on the seat behind Rogers. Defendant's accomplice was in the backseat behind defendant and holding onto Jones who was seated next to him.
Defendant and his accomplice drove Jones and Rogers through Jersey City for approximately fifteen to twenty minutes. The carjackers eventually discovered Jones' ATM card and began to badger him for his personal identification number (PIN). When Jones would not reveal his PIN, defendant knocked Jones' baseball cap from his head and the accomplice punched Jones. Defendant continued to drive, ordering Jones and Rogers not to look at him. Jones, however, could see defendant's eyes and nose directly in front of him in the rearview mirror and got a glimpse of the side of his face when defendant turned to knock the cap off Jones' head. Rogers, likewise, had the opportunity to observe defendant in the seat next to him during the ordeal.
As defendant made a left turn onto Boyd Street he briefly rested his right hand holding the gun on the center console. Rogers made a grab for the gun and defendant stopped the car as he began to struggle with Rogers. Jones, in the backseat, moved forward and began to try to choke defendant. Rogers wrested the gun from defendant and "fell back out of the car." The accomplice leapt out of the backseat and ran. Jones gave chase, and defendant sped away in Jones' Expedition.
As Jones unsuccessfully pursued the accomplice, Rogers ran wildly to a nearby firehouse and began banging his fists against the glass in the overhead doors "hollering" for them "to call the cops" and let him in. While immediately radioing the police, the firefighters inside refused to open the door, and began yelling at Rogers to put the gun down. Rogers had broken the glass in the door, cutting his arm, before he calmed down enough to lay the gun on the ground. Once he did, the firefighters led him inside, and he told them what happened as they tended to his arm. The police arrived quickly and took possession of the gun, an unloaded .22 semi-automatic pistol. Jones returned with Rogers' cell phone, and Rogers was transported to the hospital where he received several stiches for the cut on his arm.
Jones and Rogers described defendant, the gunman, to the police as a black male, approximately five foot, eight inches tall, medium build, one hundred and sixty pounds, in his mid-twenties, wearing a black tee shirt and black jeans, and the accomplice as a black male, approximately five foot, ten inches tall, medium build, one hundred and ninety pounds, wearing a white tee shirt and jeans. Jones looked through two books of photos at the police station that evening but could not find one he believed matched defendant, identifying only two photos that "[l]ooked like him from the side a little bit."
The Expedition was recovered two days after the carjacking. No fingerprints were recovered from the pistol or the car. The police sent Jones' baseball hat, found on the floor of the backseat, to the State Police Lab for DNA testing. Eleven months later, in May 2008, the lab identified defendant's DNA on Jones' baseball cap.
Detective Inzinna from the Jersey City Police Department called Jones on May 30, 2008 to view a photo array. The detective noted in a report that Jones advised him before viewing the array that, "I'll never forget his face." While Inzinna prepared the array and was present as another detective read the instructions to Jones, Inzinna left the room before the other detective began to show each of the six photographs to Jones. Jones identified defendant's photo "within thirty seconds, " testifying at trial that he "knew right away that was the person in the car that night." Defendant was arrested and subsequently indicted by a grand jury. The accomplice was never apprehended.
Defendant sought a Wade hearing on the admissibility of his out-of-court identification by Jones. Defendant contended that the police "must have" informed Jones they had a suspect or that there had been a positive match on the DNA recovered from the baseball cap in light of the eleven-month gap between the carjacking and the request that Jones view a photo array. The State countered that nothing in the police reports suggested Jones had been so advised and that defendant's "pure speculation" on the point was insufficient to meet his burden on the motion.
In a comprehensive oral opinion, Judge Santiago denied defendant's request. The judge found no evidentiary support for defendant's contention of impermissible suggestiveness. To the contrary, the judge found the police report on the photo array reflected Jones' perceived high level of certainty in his ability to identify defendant and that the use of six photos in the array met the requirements of the Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (Attorney General Guidelines), and State v. Herrera, 187 N.J. 493 (2006). The judge considered defendant's contentions that Jones' opportunity to view the carjackers was limited because the crime occurred at night and Jones was under duress as well as the significance of Jones' apparent inability to provide the police with a facial description of the carjackers immediately after the incident. Judge Santiago determined that, even assuming arguendo a showing of some evidence of impermissive suggestiveness in the procedure, a review of the Manson factors did not lead to a conclusion that the identification was unreliable. Specifically, she found that Jones provided a description
that included the height, build, skin color and clothing of both perpetrators. [Jones] was also in the car for the duration of some time it took the automobile to travel from the intersection of Grove and 14th Street to somewhere on Boyd Avenue in Jersey City and it is also alleged that [Jones] was in the back seat with one of the perpetrators. This certainly provided ample time to view the perpetrator as they could not have been at most more than two feet away from each other inside the vehicle.
Judge Santiago also rejected defendant's contention that the lapse of time between the crime and the out-of-court identification rendered the identification unreliable under State v. Madison, 109 N.J. 223, 239-46 (1988), abrogated in part by State v. Henderson, 208 N.J. 208 (2011). While acknowledging that passage of time was certainly a significant factor, she did not find that the lapse of eleven months between the crime and the photo array rendered the identification unreliable in light of the other evidence in the record, and noted defendant's ability to fully explore the issue on cross-examination. Judge Santiago concluded, upon consideration of the defense's proffer, that the "totality of the circumstances does not forcefully lead to the conclusion that the identification was not actually that of the victim."
At trial, Jones testified that he had not been told that there was "a DNA match off the hat" when the police contacted him to view the photo array. On cross-examination, however, he was confronted with his grand jury testimony that he had been told precisely "[t]hat they might have a DNA match off the hat." Further, Detective Inzinna testified that Jones had asked why the detective was calling him eleven months after the crime, to which Inzinna replied that he had "developed a suspect, there's a possible DNA match and I'd like him to come in and look at photographs." The detective also testified that he had been unable to get Rogers to view a photo array.
Both Jones and Rogers made in-court identifications of defendant before the jury. Both men were cross-examined extensively regarding the descriptions they had provided the police of the carjackers, their opportunity to view the perpetrators and their ability to do so given the darkness, their fear and the amount of alcohol they had consumed over the course of the day. Jones, who was driving, testified that he had consumed only two sixteen-ounce Coors Lights. Rogers estimated that he drank ten twelve-ounce cans. He responded angrily to defense counsel's suggestion that his inability to give a description of the carjackers was because of alcohol, saying "If I was that messed up I wouldn't have tried to take the gun from him, I knew what I was doing."
The prosecutor focused her closing statement on the DNA evidence. She contended that because Jones and Rogers did not know defendant, that Jones had only acquired the baseball cap hours before the carjacking, and that the cap was still in the car when it was recovered by the police two days later, there was virtually no way for defendant's DNA to be on that cap unless he was one of the carjackers. She emphasized that when Jones made his out-of-court identification, he was shown the six photos by a detective who did not know who defendant was or what he looked like, and that Jones had immediately identified defendant upon viewing his photograph. She asserted that the inconsistencies defense counsel had highlighted in Jones' and Rogers' accounts of the crime and descriptions of the carjackers were only minor details reflecting truthful testimony of a stressful event that had occurred three years earlier. She further noted that the firefighter who finally opened the door for Rogers after the carjacking described him as "physically and emotionally distraught, " but that neither he nor any of the police officers who testified mentioned that he was drunk or under the influence of alcohol.
After almost two days of deliberations, the jury convicted defendant on the eight counts presented. The jury thereafter convicted defendant of the certain persons offense in a separate proceeding. Defendant timely moved for a new trial contending that he should have been granted a Wade hearing, the verdict was against the weight of the evidence, the State failed to prove its case beyond a reasonable doubt, and the prosecutor made improper comments in her closing argument.
Judge Santiago denied the motion in a written opinion on May 13, 2011. The judge rejected defendant's argument that had the State advised the court that Detective Inzinna had informed Jones before the photo array that the police had developed a suspect based on a DNA match, instead of dismissing it as "pure speculation, " the court would have granted him a Wade hearing and ruled Jones' out-of-court identification inadmissible. Judge Santiago noted that she had accepted arguendo defendant's contention that the identification procedure was impermissibly suggestive and proceeded to the second step in the Manson/Madison test of considering the totality of the circumstances in order to weigh the reliability of Jones' identification of defendant. Accordingly, the court was satisfied that had Detective Inzinna's statement been available when defendant moved for a Wade hearing, that evidence of impermissible suggestiveness, when weighed against the description provided by Jones and Rogers of the carjackers, and their opportunity to view them for fifteen or twenty minutes in the close confines of the car would have led to the same conclusion that a Wade hearing was not warranted, even considering the eleven months that had elapsed between the carjacking and Jones' identification of defendant.
Judge Santiago also rejected as meritless defendant's arguments that the verdict was against the weight of the evidence and that the State had failed to prove its case beyond a reasonable doubt, finding no facts to support either contention. Finally, the judge rejected defendant's argument that the prosecutor represented to the jury that Rogers was not intoxicated on the night of the carjacking, knowing it was untrue. Defendant contended that an Officer Monahan had interviewed Rogers after the incident and noted in a report that Rogers was to return to the station the next morning to review photos due to his intoxication. Defendant contended that the State must have been aware of Monahan's report, and that the failure to call him as a witness while representing to the jury that Rogers was not intoxicated constituted prosecutorial misconduct.
Judge Santiago found the State was under no obligation to call Officer Monahan and that the prosecutor had only "reminded the jury" that neither the fire captain nor the responding police officer had testified that Rogers was intoxicated. The judge found that Rogers' testimony, "although important, was not the sole basis on which [defendant] was convicted" as the State had relied heavily on the DNA evidence and Jones' out-of-court identification, and that the prosecutor's comments had not deprived defendant of a fair trial.
We turn first to defendant's contention that the trial court erred in admitting Jones' out-of-court identification.
This case was tried prior to the Supreme Court's ruling in Henderson, supra, 208 N.J. at 288-93, in which the Court revised the State's framework for evaluating eyewitness identification evidence. Because Henderson applies "purely prospectively, " id. at 220, we review the identification procedures here using the same two-part Manson/Madison standard employed by the trial court. Under that formulation, a court reviewing the admissibility of an out-of-court identification first ascertains whether the identification procedure was impermissibly suggestive, thereby testing "whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer." State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow, 61 N.J. 434, 451 (1972)). If the court finds the procedure impermissibly suggestive, it then decides "whether the impermissibly suggestive procedure was nevertheless reliable by considering the totality of the circumstances and weighing the suggestive nature of the identification against the reliability of the identification." State v. Romero, 191 N.J. 59, 76 (2007) (internal quotation marks and citation omitted).
The factors a court is to consider in determining reliability include: the opportunity of the eyewitness to view the criminal at the time of the crime; the eyewitness's degree of attention; the accuracy of the eyewitness's prior description of the criminal; the level of certainty demonstrated by the eyewitness at the confrontation; and the length of time between the crime and the confrontation. Adams, supra, 194 N.J. at 204 (citing Manson, supra, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154). A court is to weigh these factors against "the corrupting effect of the suggestive identification itself." Ibid. "If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness's identification is reliable, then the identification may be admitted into evidence." Ibid.
Judge Santiago applied those precedents in determining to admit Jones' out-of-court identification of defendant. Acknowledging that Detective Inzinna's pre-identification statement to Jones, that the police had developed a suspect based on a DNA match, would constitute evidence of impermissive suggestiveness, she nevertheless concluded that the comments were not so impermissibly suggestive as to impugn the reliability of the identification procedure, which was otherwise conducted in accordance with the Attorney General Guidelines. Accepting arguendo defendant's contention that the comments would render the identification impermissibly suggestive, the judge weighed the applicable Manson factors and concluded that Jones' out-of-court identification of defendant was reliable. Moreover, the judge reaffirmed her findings in the course of considering defendant's post trial motions. Those findings are "entitled to very considerable weight." Farrow, supra, 61 N.J. at 451.
Our own review of the record convinces us that the judge carefully considered whether the detective's advice to Jones that the police had developed a suspect from a DNA match rendered his selection of defendant's photo a product of that advice or instead represented his own independent recollection. Adams, supra, 194 N.J. at 203. Judge Santiago's findings that the State's photo identification procedure was reliable based on Jones having been shown six photos by a detective independent of the investigation having no knowledge of defendant's name or what he looked like and considering Jones' description of the carjackers, his opportunity to view the gunman during the fifteen or twenty minutes he was trapped in the car, Jones' confidence in his ability to identify his attacker and the speed in which he selected defendant's photo from the array are supported by sufficient credible evidence in the record. Accordingly, we reject defendant's contention that the judge erred in admitting Jones' out-of-court identification. See Ibid. (directing that the trial court's findings that photographic identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings).
We likewise reject defendant's challenge to Jones' and Rogers' in-court identifications. Defendant made no objection to his in-court identification by either victim. Arguments raised for the first time on appeal are reviewed under a plain error standard, meaning we disregard such errors unless "clearly capable of producing an unjust result." R. 2:10-2; State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 337 (1971). A court must exclude an in-court identification if the out-of-court procedure was "'so impermissibly suggestive as to fix in the victim's mind an identity probably based upon photographs rather than upon an independent mental picture of the person gained from observations of him at the time of commission of the crime.'" Madison, supra, 109 N.J. at 242-43 (quoting State v. Thompson, 59 N.J. 396, 418-19 (1971)).
As we agree with the trial court that Jones' out-of-court identification of defendant was reliable, we reject the premise of his objection to Jones' in-court identification of defendant. Rogers had not previously identified defendant and thus there is no concern that his in-court identification was the result of any impermissibly suggestive out-of-court identification procedure. Defendant is correct that the State did not lay a foundation for either in-court identification. N.J.R.E. 602. His failure to object, however, deprived the trial court of the opportunity to judge the independent reliability of the in-court identifications by applying the five Manson factors she had considered in admitting Jones' out-of-court identification. Madison, supra, 109 N.J. at 243. Even were we to assume the identification testimony was improperly admitted, we do not conclude, in light of the other evidence in the record, that admitting the in-court identifications "led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
Defendant next contends that the trial court erred in not providing the jury with instructions for evaluating Rogers' in-court identification and by failing to tailor the charge to the facts of this case. The judge's charge closely tracked the model charges for in-court/out-of-court identification in effect at the time of this trial. Although it is certainly true that trial judges are often obligated to mold a jury charge to reflect the facts of the case being tried, State v. Reddish, 181 N.J. 553, 612-13 (2004), whether to add specific factual references to the identification instruction is left to the trial court's sound discretion, State v. Robinson, 165 N.J. 32, 42 (2000). Here, defendant was in agreement with the judge's charge and did not object when the judge delivered her instructions to the jury. Reviewing the entire charge under the plain error standard of Rule 2:10-2, we do not conclude that any error possessed a clear capacity to bring about an unjust result. State v. Burns, 192 N.J. 312, 341 (2007).
We comment only briefly on defendant's claims that the prosecutor's comments in summation amounted to prosecutorial misconduct. A prosecutor is duty-bound to confine remarks in summation to the facts adduced at trial and any reasonable inferences which may be properly drawn from those facts. State v. Marks, 201 N.J.Super. 514, 534 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986). Misconduct is found only when a prosecutor's conduct exceeds the role he or she has been entrusted to carry out. State v. Smith, 212 N.J. 365, 402-04 (2012), cert. denied, U.S., 133 S.Ct. 1504, 185 L.Ed.2d 558 (2013). Nothing in the record before us suggests that the prosecutor exceeded these bounds either in her comments regarding the competency of the police or her fair comment regarding the failure of the witnesses to testify that Rogers appeared under the influence of alcohol after the carjacking. See State v. Vasquez, 374 N.J.Super. 252, 261-62 (App. Div. 2005) (holding that a prosecutor's comments that police officers would not lie under oath did not warrant reversal when made in direct response to defense counsel's attack on the officer's credibility). We agree with Judge Santiago that the prosecution was under no obligation to call Officer Monahan to testify at trial. See State v. Laganella, 144 N.J.Super. 268, 280-81 (App. Div. 1976) (noting the State does not violate a defendant's rights by failing to call a witness unless the State previously misrepresented to the defendant an intent to call that witness as "it is an unfair representation that offends due process and not trial strategy"). Accordingly, we find no error, much less plain error, that would justify a reversal of defendant's conviction on these grounds. R. 2:10-2.
Finally, we have considered the arguments defendant has offered to establish that the length of his sentence for the carjacking counts is excessive and the consecutive term for the certain persons offense unwarranted and determined that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). Defendant had ten prior indictable convictions and was eligible for an extended term as a persistent offender. N.J.S.A. 2C:44-3a. The judge declined to sentence defendant to an extended term but determined instead that the prescribed maximum thirty-year term for carjacking was appropriate given the serious nature of the offense and defendant's long criminal history. Judge Santiago's decision to impose a consecutive sentence on the certain persons offense because it did not arise from the same conduct as the other convictions for which defendant was sentenced but instead was a combination of a prior felony and possession of a weapon in the present offense is in accord with State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986).
The judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).