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State v. Anthony

Supreme Court of New Jersey

March 13, 2019

State of New Jersey, Plaintiff-Respondent,
v.
Ibnmauric Anthony, a/k/a Ibnmaurice Anthony and Ibnmaurice Rasha Anthony, Defendant-Appellant.

          Argued October 22, 2018

          On certification to the Superior Court, Appellate Division.

          Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Lauren S. Michaels, of counsel and on the briefs).

          Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the brief, and LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

          Sara M. Quigley, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sara M. Quigley, of counsel and on the brief).

          Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Gibbons and American Civil Liberties Union of New Jersey Foundation, attorneys; Lawrence S. Lustberg, Edward Barocas, Alexander Shalom, and Jeanne LoCicero on the brief).

          RABNER, C.J., writing for the Court.

         This appeal raises issues about the process law enforcement officers must follow when they ask eyewitnesses to try to identify a suspect. Specifically, this appeal poses questions about the precise meaning and scope of Rule 3:11 as well as the proper remedies when State v. Delgado, 188 N.J. 48, 63 (2006), and the Rule are violated.

         Today's ruling addresses the following points: (1) it clarifies Rule 3:11 and emphasizes that law enforcement officers are to record identification procedures electronically, preferably by video, if feasible; (2) it requires officers to document their reasons for not recording an identification procedure electronically or preparing a contemporaneous, verbatim written account of the process; (3) it modifies State v. Henderson, 208 N.J. 208 (2011), and holds that defendants are entitled to a pretrial hearing on the admissibility of a witness' identification when no electronic or contemporaneous, verbatim written recording of the identification procedure is prepared, even without evidence of suggestiveness on the part of law enforcement; and (4) it proposes a change to the model jury charge for use when Delgado and Rule 3:11 are not followed.

         Eugene Roberts pulled into the driveway of his home in Newark. As Roberts got out of his car, three men approached him. One of the men pointed a revolver at Roberts' torso and demanded money. Another man, later identified as defendant Ibnmauric Anthony, asked for Roberts' car keys. The man searched the car as Roberts watched and then tossed the keys to the ground before all three walked away. Roberts called the police and gave a statement.

         Two days later, Roberts returned to the police station to look at a photo array. Detective Karima Hannibal administered the array. She was not involved in the case and did not know the suspect's identity. Detective Hannibal read a series of instructions to Roberts, showed him the array, and recorded his response. She used three pre-printed Newark Police Department forms to document the identification procedure.

         A grand jury indicted defendant, who moved to suppress the out-of-court identification and asked for a pretrial hearing under United States v. Wade, 388 U.S. 218 (1967), and Henderson. Defendant argued that it was improper for law enforcement officers not to memorialize or record the dialogue during the viewing of the photo array because there was no way to know if any impermissibly suggestive behavior took place.

         The trial court denied defendant's motion and request for a pretrial hearing. Trial began, and the case rested on Roberts' identification. To instruct the jury, the trial court used the model jury charge for eyewitness identification, Model Jury Charges (Criminal), "Identification: In-Court and Out-of-Court Identifications" (rev. July 19, 2012) (Identification Charge). Defendant did not object or ask for a supplemental charge about the administration or recording of the photo array. The jury convicted defendant on all counts.

         The Appellate Division affirmed defendant's conviction. The panel found that "the failure to record Roberts' actual words" of confidence was not "a sufficient violation (if a violation at all) of Delgado and Rule 3:11 to warrant exclusion of the evidence." The Appellate Division also rejected defendant's belated challenge that it was plain error for the court not to instruct the jury about that circumstance.

         The Court granted certification "limited to the issue of the State's failure to comply with the requirements of" Delgado. 231 N.J. 110 (2017).

         HELD: Because Rule 3:11 was not fully followed, and because the record does not reveal whether the shortcomings were technical or substantive, the Court remands for a full hearing consistent with Wade and Henderson. Based on the evidence developed at the hearing, the trial court will be in the best position to determine whether a new trial is warranted.

         1. In Henderson, the Court revised the legal framework for the admission of eyewitness identification evidence and held that when defendants can show some evidence of suggestiveness tied to a system variable, they are entitled to explore all relevant system and estimator variables at a pretrial hearing to try to challenge the admissibility of the identification. 208 N.J. at 288-93. Confirmatory feedback is one of a number of variables that can affect memory. Positive feedback can distort memory and "create a false sense of confidence." Id. at 255. That is a significant concern because of how much weight jurors place on the level of confidence a witness displays at trial. Id. at 274. (pp. 14-16)

         2. In Delgado, the Court required "that, as a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." 188 N.J. at 63. Delgado encouraged but did not mandate the use of tape recorders to preserve identification procedures. Ibid. In addition, the Court asked the Criminal Practice Committee to prepare a rule to incorporate the above principles. Id. at 64. In Henderson, the Court reaffirmed Delgado. 208 N.J. at 252. To guard against confirmatory feedback, the Court required law enforcement to record a witness' statement of confidence "in the witness' own words before any possible feedback." Id. at 254. Henderson added that "if an eyewitness' confidence was not properly recorded soon after an identification procedure, and evidence revealed that the witness received confirmatory feedback," trial judges could bar any testimony at trial about the witness' level of confidence. Id. at 298. The Court also asked that the model charge on eyewitness identification be revised. Ibid. The Court adopted an enhanced set of instructions in 2012. See Identification Charge. (pp. 16-19)

         3. In response to Delgado and Henderson, the Criminal Practice Committee in 2012 proposed a court rule on recording requirements for identification procedures, which the Court adopted later that year. The Court reviews Rule 3:11 in its current form. (pp. 19-21)

         4. With the proliferation of recording devices in recent years, the Rule's aim is easier to achieve today than in the past. Police departments of all sizes now have access to devices that can electronically record and preserve identification procedures. And departments already use recording equipment to preserve identification procedures consistent with the requirements of Rule 3:17(a). Electronic recordings are preferable for identification procedures as well. To more clearly state the order of preference for preserving an identification procedure, Rule 3:11(b) should be revised along the following lines: Officers are to record all identification procedures electronically in video or audio format. Preferably, an audio-visual record should be created. If it is not feasible to make an electronic recording, officers are to contemporaneously record the identification procedure in writing and include a verbatim account of all exchanges between an officer and a witness. If a contemporaneous, verbatim written account cannot be made, officers are to prepare a detailed summary of the identification as soon as practicable. The Court relies on its supervisory powers to require, further, that when it is not feasible to make an electronic recording of an identification procedure, law enforcement officers must document the reasons for not having done so. The same requirement applies when officers cannot prepare a contemporaneous, verbatim written account. The Court asks the Criminal Practice Committee to revise Rule 3:11 consistent with the above principles. (pp. 21-25)

         5. Henderson outlined the legal standard for when courts should hold pretrial hearings. Under that standard, proof that an administrator offered positive feedback to a witness after an identification would justify a hearing. Defendants need a full record of the identification procedure to gather possible evidence of suggestiveness. The failure to provide that information should not deprive defendants of the opportunity to probe about suggestive behavior that may have tainted an identification. To address that situation, the Court modifies the Henderson framework in this way: a defendant will be entitled to a pretrial hearing on the admissibility of identification evidence if Delgado and Rule 3:11 are not followed and no electronic or contemporaneous, verbatim written recording of the identification procedure is prepared. In such cases, defendants will not need to offer proof of suggestive behavior tied to a system variable to get a pretrial hearing. This approach supplements the other remedies listed in Rule 3:11(d). At the hearing, counsel will be free to explore the full range of variables discussed in Henderson, as they can in the ordinary course. 208 N.J. at 288-93. The Court does not suggest that a hearing would be appropriate in all cases and explains when a hearing might not be needed. (pp. 25-27)

         6. The Identification Charge includes the following language on pre-identification instructions: "If you find that the police [did/did not] give this instruction to the witness, you may take this factor into account when evaluating the identification evidence." Similar language can be used to instruct a jury about the failure to preserve an identification procedure. The Court outlines the points that such a charge should include and notes that counsel should request such a charge when the facts warrant it. The Court asks the Model Jury Charge Committee to amend the model charge. (pp. 27-29)

         7. In this case, the officers did not comply with Rule 3:11 or Delgado in full. They did not prepare an electronic recording of Roberts' out-of-court identification or a contemporaneous, verbatim written account of the exchange between Roberts and Detective Hannibal. They instead used three forms that documented important information about the process. Reliance on the forms alone, though, did not create an adequate record. Under the circumstances, perhaps the best option was one not available at the time: a hearing to assess the reliability of the identification even though defendant could not present evidence of suggestiveness. A hearing would have benefitted not only defendant but also the trial court, by enabling it to fulfill its gatekeeping role. (pp. 29-32)

         8. The Court remands this case to the trial court for such a hearing. At this time, without a more complete record, the Court does not find that the absence of a supplemental charge was plain error. See R. 2:10-2. Defendant will have the opportunity to challenge the verdict on remand. If damaging evidence about feedback, witness confidence, or some other factor that affects memory is developed at the hearing, he may have a strong case and be entitled to a new trial. On the other hand, if it turns out that the police essentially tracked Roberts' full statement of confidence on the photo display report form and offered no confirmatory feedback, defendant would be hard-pressed to show that a technical violation of Rule 3:11(d) was "clearly capable of producing an unjust result." R. 2:10-2. The Court declines to adopt a per se rule that any error in recording an identification, even a technical or insignificant one, requires suppression of the evidence. The remand hearing in this matter should probe what happened during the identification process -- and end with evidence being excluded if it is unreliable, and admitted otherwise. The threshold for suppression remains high. In this case, the trial court will assess that standard in light of what is developed at the remand hearing. At that point, the trial court will also be able to consider whether the lack of a pretrial hearing and absence of a jury charge warrant a new trial. (pp. 32-35)

         The matter is REMANDED to the trial court for further proceedings.

          JUSTICE ALBIN, dissenting in part, joins with the Court in the progressive steps it takes to improve the recording procedures relating to eyewitness identifications but expresses the view that the trial judge committed plain error by not instructing the jury that a violation of Rule 3:11 -- a rule intended to preserve evidence for trial -- could be considered in assessing whether the State met its burden of proof. Observing that a properly charged jury may have determined that the State fell short of its burden of proving the reliability of the identification, Justice Albin does not believe that Anthony received a fair trial and would thus reverse his conviction and grant him a new trial.

          JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, SOLOMON and TIMPONE join in CHIEF JUSTICE RABNER's opinion. JUSTICE ALBIN filed an opinion, dissenting in part.

          OPINION

          RABNER, CHIEF JUSTICE

         This appeal raises issues about the process law enforcement officers must follow when they ask eyewitnesses to try to identify a suspect. When officers conduct an identification procedure, they should exercise great care to avoid sending signals that could alter a witness' memory and lead to a mistaken identification. They must also document the process.

         The case involves an armed robbery. The victim's identification of one of his assailants was the only evidence that led to defendant's conviction. When the witness first identified defendant from a photo array, an officer memorialized certain details about the process on three pre-printed forms. The officer did not record the process electronically or prepare a contemporaneous, verbatim written account of what took place.

         The three forms were meant to follow existing case law. See State v. Delgado, 188 N.J. 48, 63 (2006). But they did not capture the entire dialogue between the witness and the officer and did not recount the witness' statement of confidence in his own words. Defendant also contends that there is no detailed summary of the exchange the victim had with a detective who asked him to come to the police station to view the array. All of those items are required by a court rule that instructs law enforcement how to record out-of-court identification procedures, like a lineup or photo array. See R. 3:11(c).

         Before trial, defendant asked for a pretrial hearing to explore the admissibility of the identification. The trial court denied the request in accordance with State v. Henderson, 208 N.J. 208, 288-89 (2011), because defendant could not present evidence of suggestiveness on the part of law enforcement from the existing record.

         The appeal thus poses questions about the precise meaning and scope of Rule 3:11 as well as the proper remedies when Delgado and the Rule are violated. In response, today's ruling addresses the following points: (1) it clarifies Rule 3:11 and emphasizes that law enforcement officers are to record identification procedures electronically, preferably by video, if feasible; (2) it requires officers to document their reasons for not recording an identification procedure electronically or preparing a contemporaneous, verbatim written account of the process; (3) it modifies Henderson and holds that defendants are entitled to a pretrial hearing on the admissibility of a witness' identification when no electronic or contemporaneous, verbatim written recording of the identification procedure is prepared, even without evidence of suggestiveness on the part of law enforcement; and (4) it proposes a change to the model jury charge for use when Delgado and Rule 3:11 are not followed.

         Because the Rule was not fully followed here, and because we cannot tell from the record whether the shortcomings were technical or substantive in nature, we remand for a full hearing consistent with United States v. Wade, 388 U.S. 218 (1967), and Henderson. Based on the evidence developed at the hearing, the trial court will be in the best position to determine whether a new trial is warranted.

         I.

         Between 2 and 3 a.m. on December 18, 2012, Eugene Roberts pulled into the driveway of his home in Newark. The area was well-lit by nearby streetlights and two motion-detector lights on his garage. As Roberts got out of his car, three men in their twenties approached him. None of them wore masks. Roberts turned around and looked at their faces from three to five feet away.

         One of the men pointed a revolver at Roberts' torso and demanded money. When Roberts said he had none, the gunman demanded his wallet. Roberts handed the wallet to another man, who confirmed it had no money inside. The third man, later identified as defendant Ibnmauric Anthony, then asked for Roberts' car keys. From an arm's length away, Roberts looked at the third man and handed over his keys. The man entered the car and searched the glove compartment and under the front and rear seats. The interior dome light was on while he searched, and Roberts watched as the man rifled through the car.

         Immediately after the search, the gunman told Roberts to get on his knees and face the car. Roberts complied. The gunman then put the revolver to Roberts' head and said, "I ought to kill you." Roberts testified that he remained calm, based on his training in the Marine Corps years before.

         Next, the man who searched the car tossed the keys to the ground, and all three walked away. They threatened to shoot Roberts if he turned around. Roberts nonetheless glanced over his shoulder and saw them get into a gray car and drive away. Roberts estimated that the entire incident lasted about seven to eight minutes.

         Roberts then entered his home, told his wife what happened, and called the police. Soon after, officers arrived and took Roberts to the police station where he gave a statement. Roberts described the height, hairstyle, and clothing of each assailant. He said the man who searched his car was thin, 5'11", wore light-colored clothing, and sported "dreads." Roberts did not describe the assailant's complexion, eye color, or the shape of his face.

         Two days later, Detective Pablo Gonzales called Roberts and asked him to return to the police station to look at a photo array. The Detective had prepared an array of six photos of men with dreadlocks. The array included a photo of defendant taken one year before.

         Detective Karima Hannibal administered the array. She was not involved in the case and did not know the suspect's identity. Detective Hannibal read a series of instructions to Roberts, showed him the array, and recorded his response. She used three pre-printed Newark Police Department forms to document the identification procedure.

         Detective Hannibal testified that she first read the "Photo Display Instructions" form aloud, which both she and Roberts then signed. Roberts confirmed that he reviewed the instructions. The instructions sheet contained the following information:

In a moment, I will show you a number of photographs one at a time. You may take as much time as you need to look at each of them. You should not conclude that the person who committed the crime is in the group merely because a group of photographs is being shown to you. The person who committed the crime may or may not be in the group, and the mere display of the photographs is not meant to suggest that the police believe that the person who committed the crime is in one of the photographs. You do not have to select any photograph.
. . . Tell me immediately if you recognize anyone in one of the photographs.
. . . .
If you select a photograph, please do not ask me whether I agree with or support your selection. I do not know who[] the suspect is, if they are in the line up, or what photograph he/she may be present. It is your choice alone that counts.

         Roberts selected the third photo -- a photo of defendant -- and wrote the following by hand on the "Photograph Identification Form": "#3" was "[t]he man who ask[ed] me for my car keys during the robbery." Roberts signed the form underneath the following statement:

Det. K. Hannibal of the Newark Police Department is the person who asked me to view these photographs. Neither he/she nor anyone else used any threats or promises, urged or prompted me in any way to cho[o]se any of the aforementioned photographs. I have been given an opportunity to read this form (or had it read to me) and have been asked to sign my name to it, if the contents are the truth to the best of my knowledge and belief.

         Detective Hannibal also completed a third form, a "Photo Display Report." In a section marked "Comments and Demeanor of Witness," she wrote that Roberts was "confident in his choice." She also checked a box to note that he did not "ask to see any photos again." At trial, Detective Hannibal told the jury the same thing: that Roberts "was calm and confident in the choice that he made." Roberts likewise testified that he did not feel pressured to select a photo and "was very confident" in his selection.

         A grand jury in Essex County indicted defendant and charged him with four offenses: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 15-1(b) (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four).

         Defendant moved to suppress the out-of-court identification and asked for a pretrial hearing under Wade and Henderson. Among other points, defendant argued that it was improper under Delgado for law enforcement officers not to memorialize or record the dialogue between Roberts and Detective Hannibal during the viewing of the photo array. Without that ...


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