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State v. Green

Supreme Court of New Jersey

July 23, 2019

State of New Jersey, Plaintiff-Appellant/Cross-Respondent,
v.
Kwesi Green, Defendant-Respondent/Cross-Appellant.

          Argued January 2, 2019

          On appeal from the Superior Court, Appellate Division.

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

          Peter T. Blum, Assistant Deputy Public Defender, argued the cause for respondent/cross-appellant (Joseph E. Krakora, Public Defender, attorney; Peter T. Blum, of counsel and on the briefs).

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

          Lawrence S. Lustberg argued the cause for amici curiae Innocence Project, American Civil Liberties Union of New Jersey, and Innocence Network (Gibbons and American Civil Liberties Union of New Jersey Foundation, attorneys; Lawrence S. Lustberg, Farbod K. Faraji, and Alexander Shalom, on the brief).

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

         In this case, a robbery victim identified her assailant from an extensive database of digital photos. The witness was mistakenly allowed to review the photos through a feature of the database meant to be used by law enforcement officers, not eyewitnesses. In addition, the police saved only the photo the victim ultimately selected -- an image of defendant. Beyond that, the system contained multiple photos of defendant. The Court considers what took place in light of known risks associated with eyewitness identification, as well as case law and a court rule that address how identification procedures should be conducted and preserved.

         The victim, who was robbed at gunpoint while she waited for a bus, described her assailant to Newark Police Detective Donald Stabile. She said she "got a very good look" at her assailant and would be able to identify him. The victim then viewed photos through the HIDTA DataWorks PhotoManager System (HIDTA system or database). The HIDTA system for the NY/NJ region has millions of photos, including those of all adults arrested by the Newark Police Department. If someone is arrested in the relevant area more than once, the system will have multiple photos of the individual.

         The HIDTA system has two modes: one for investigators and the other for witnesses. In "investigative mode," law enforcement officials can search for a known suspect by name or other identifier. If the suspect's identity is not known, an officer can use investigative mode to narrow the field of photos based on a witness' description. Should the witness then select a photo and say the person in the photo resembles her assailant, an investigator can generate other similar photos to review. Individual photos can be printed, but no report of the session can be created in investigative mode. Finally, an officer can click on a photo in investigative mode to reveal a host of information about the person -- including his or her name and the date and time of arrest.

         "Witness mode" is for witnesses to view digital images of mugshots. A witness can signal whether someone is the suspect or a possible suspect by telling the officer or by clicking under a photo. At the end of a session, witness mode can generate a report of the photos displayed, how long each was displayed, and whether the witness marked a photo. The report generates a log of numbers, each of which links to a single photo. It is also possible to print individual photos in witness mode.

         Detective Stabile interviewed the victim at the police station shortly after the armed robbery. He then entered various parameters in the HIDTA system in investigative mode. Without switching to witness mode, he set the witness up at a computer, explained how to scroll through photos with six on a screen at a time, and asked her to notify him if she saw her assailant or anyone who looked similar. According to the detective, the victim looked through the narrowed field of digital photos for several minutes. She then told the detective that one of the photos looked like the assailant. The detective did not know how many photos she had viewed and did not print the particular photo she flagged. Still in investigative mode, the detective narrowed the field to images similar to the one the witness selected. Within a few seconds, she identified defendant from the first page of photos she viewed next. The detective did not print the six photos from the final screen; he printed only the single photo the victim identified as her assailant. No report of the photos she viewed was generated; nor could a report have been generated from investigative mode.

         Defendant was charged with first-degree robbery and weapons offenses. Defendant moved to suppress the victim's out-of-court identification, and the trial court held an evidentiary hearing and then granted defendant's motion. The State appealed. A majority of the Appellate Division panel found the trial court properly determined that eleven additional photos should have been preserved under Rule 3:11. However, the majority vacated the order of suppression and remanded for the trial judge to consider the full range of remedies in Rule 3:11(d). The Court granted the State's motion for leave to appeal the order of suppression, 233 N.J. 9 (2018), and defendant's cross-motion for leave to appeal the order of remand to reconsider the remedy, 233 N.J. 16 (2018).

         HELD: Under the circumstances, the trial court properly suppressed the identification in this case. The Court proposes revisions to Rule 3:11 to offer clearer guidance on which photos officials should preserve when they use an electronic database. In addition, to guard against misidentification, the Court places on the State the obligation to show that an eyewitness was not exposed to multiple photos or viewings of the same suspect.

         1. State v. Henderson reviewed concerns about the reliability of eyewitness identification and considered multiple variables that "can affect and dilute memory and lead to misidentifications." 208 N.J. 208, 218 (2011). Among other variables, multiple viewings of a suspect can affect the reliability of an identification through "mugshot exposure" and "mugshot commitment." Id. at 255-56. The Court in Henderson therefore observed that "law enforcement officials should attempt to shield witnesses from viewing suspects or fillers more than once." Id. at 256. (pp. 13-16)

          2. In State v. Delgado, the Court required officers to "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. 48, 63 (2006). More recently, in Henderson, 208 N.J. at 252, and State v. Anthony, 237 N.J. 213, 227, 235 (2019), the Court reaffirmed those principles. (pp. 16-17)

         3. The Court adopted an enhanced model jury charge in response to Henderson that includes a proposed instruction on multiple viewings and other variables. Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" 6 (rev. July 19, 2012). Jurors are told that they "may consider whether the witness viewed the suspect multiple times during the identification process and, if so, whether that affected the reliability of the identification." Ibid. The Court also adopted a new court rule, Rule 3:11, in response to Delgado and Henderson. However, Rule 3:11 does not address in detail what should be recorded when a witness views a database of digital photos or an electronic mug book. (pp. 17-19)

         4. The Appellate Division decisions on which the State relies preceded Henderson or the date it went into effect and were decided before the adoption of Rule 3:11. Recent technological developments complicate the analysis in those opinions, and none of those cases considered Rule 3:11 or the problem of mugshot exposure. (pp. 19-22)

         5. The Attorney General provided information about the use of electronic and hard copy mug books throughout the State, which the Court recounts in detail. Notably, just 3 of 479 departments use only paper mug books, in contrast to the 145 departments that use electronic or digital databases that contain photographs. (pp. 22-23)

         6. Multiple views of the same person can create a risk of mugshot exposure -- the possibility that a witness will make an identification based on a memory of an earlier photo and not the original event. Henderson, 208 N.J. at 255-56. At pretrial hearings, defendants are able to explore whether an eyewitness viewed the same suspect more than once during identification procedures. Id. at 290. To guard against the risk of mugshot exposure, the Court requires the following practice going forward: When relevant, the State will have the obligation to demonstrate that an eyewitness was not exposed to multiple photos or viewings of the same suspect. If the prosecution cannot satisfy that burden, trial judges are to consider that factor when they assess whether the identification evidence can be admitted at trial. If there is a "very substantial likelihood of irreparable misidentification," the evidence should be excluded. Id. at 289. (pp. 24-26)

         7. Rule 3:11 needs to be updated. To allow for appropriate review of an out-of-court identification procedure that used a digital database or paper mug book, administrators should preserve (1) the photo of the suspect the witness selected, along with all other photos on the same screen or page, and (2) any photo that a witness says depicts a person who looks similar to the suspect, along with all other photos on that screen or page. The Court asks the Criminal Practice Committee to revise Rule 3:11 on an expedited basis. The Court asks the Model Jury Charge Committee to amend the model charge on multiple viewings and add language about the failure to preserve an identification procedure. (pp. 26-28)

         8. The Court delays the implementation of today's ruling, aside from defendant Green, until thirty days from the date the Court approves revisions to Rule 3:11, at which time this decision will apply prospectively. (p. 28)

         9. When the record of an identification "is lacking in important details," and it was feasible to preserve them, Rule 3:11(d) affords a judge discretion, consistent with appropriate case law, to bar the evidence, redact part of it, and/or "fashion an appropriate jury charge" if the evidence is admitted. Under the circumstances, the Court cannot find that the trial judge abused his discretion when he suppressed the identification. The Court does not suggest that any time a full record of an identification is not preserved, the evidence must be excluded. Indeed, suppression should be the remedy of last resort, and judges should explain why other remedies in Rule 3:11(d) are not adequate before barring identification evidence. It is the confluence of factors in this appeal -- the witness's use of investigative mode during the identification process, the failure to preserve all but one photo, and defendant's history of multiple recent arrests, which would have been captured in the HIDTA system the witness viewed -- that casts doubt on the reliability of the identification process and supports the trial court's conclusion. (pp. 28-30)

         The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

         JUSTICE SOLOMON, concurring in part and dissenting in part, concurs in the majority's ruling but not in its remedy. Justice Solomon explains that the trial court discussed only whether the evidence should be suppressed and, in doing so, did not measure the evidence in the record against the prevailing legal standard: whether defendant had shown a "very substantial likelihood of irreparable misidentification" under the circumstances. See Henderson, 208 N.J. at 289. Because a trial court must make that determination before deciding whether the high threshold for suppression has been vaulted, Justice Solomon would affirm the Appellate Division and remand to the trial court to "probe what happened during the identification process" and meaningfully assess the identification's reliability. Anthony, 237 N.J. at 239.

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

          OPINION

          RABNER CHIEF JUSTICE

         In this case, a robbery victim identified her assailant from an extensive database of digital photos. To assess the reliability of the identification process requires an understanding of modern-day digital databases.

         In some respects, they are today's equivalent of a paper mugshot book. In other ways, digital systems are far superior, thanks to advances in technology. The system used here, for example, allows officers to pare down a large field of photos to match a witness's physical description of a suspect. When an eyewitness selects a photo that looks similar to the culprit, the system can further narrow the field to display only other similar images. Officers can also print copies of photos and generate a report of what a witness viewed.

         In this appeal, the witness was mistakenly allowed to review digital photos through a feature of the database meant to be used by law enforcement officers, not eyewitnesses. In addition, the police saved only the photo the victim ultimately selected -- an image of defendant. Beyond that, the system contained multiple photos of defendant because of his recent prior arrests, which raises concerns about mugshot exposure and its effect on the reliability of identifications.

         We consider what took place in light of known risks associated with eyewitness identification, as well as case law and a court rule that address how identification procedures should be conducted and preserved. We also propose revisions to Rule 3:11 to offer clearer guidance on which photos officials should preserve when they use an electronic database to identify a suspect. In addition, to guard against misidentification, we place on the State the obligation to show that an eyewitness was not exposed to multiple photos or viewings of the same suspect.

         Under the circumstances, we find that the trial court properly suppressed the identification in this case. We therefore affirm and modify the judgment of the Appellate Division majority, which largely upheld the trial court.

         I.

         To recite the facts, we draw heavily on the testimony at the suppression hearing. On February 11, 2014, a woman was robbed at gunpoint while she waited at a bus stop in Newark. A man approached her, pointed a black handgun at her chest, demanded her pocketbook, and asked several questions about other items she was carrying. The woman handed her bag to the man, who walked away.

         Soon after, the victim described her assailant to Newark Police Detective Donald Stabile and another officer at the police station. She said the man was about 5'7" tall, weighed between 130 and 150 pounds, had dark skin, a round face, short hair, and no facial hair, and was in his early twenties. The victim said she "got a very good look" at her assailant and would be able to identify him.

         Based on her description, Detective Stabile input certain criteria into a digital database of photos, from which the victim ultimately identified defendant Kwesi Green. Because the identification is central to this appeal, we describe in detail both the database and the process the police followed.

         A.

         The victim viewed photos through the HIDTA DataWorks PhotoManager System (HIDTA system or database). HIDTA -- an abbreviation for High Intensity Drug Trafficking Area -- is a federally funded grant program that provides assistance to state and local law enforcement agencies to combat drug trafficking in a coordinated manner. The Newark Police Department participates in the New York/New Jersey HIDTA region, which covers seventeen counties in New York and northern New Jersey, including Essex County.

         The HIDTA system for the NY/NJ region has millions of digital photos, including photos of all adults arrested by the Newark Police Department.[1]When officers who participate in HIDTA process a defendant, they enter the individual's arrest photo in the PhotoManager System. If someone is arrested in the relevant area more than once, the system will have multiple photos of the individual -- one for each arrest.

         The HIDTA system has two modes: one for investigators and the other for witnesses. "Investigative mode" -- as its name suggests -- is designed for law enforcement officials. Investigators can search for a known suspect by name, date of birth, or some other identifier; if the suspect's identity is not known, an officer can use investigative mode to narrow the field of photos for a witness to view. Specifically, if a witness describes an unknown person's age, race, height, weight, hair color, facial features, or other pedigree information, an officer can tailor a search to match those parameters. Should the witness then select a photo and say the person in the photo resembles her assailant, an investigator can highlight that photo and generate other similar photos to review. Individual photos displayed or selected in investigative mode can be printed, but no report of the session can be created.

         Using a feature for similar images or photos, an officer can also generate a photo array -- a group of photos that look like a certain image -- in investigative mode. As the array is created, particular photos will reappear until the ...


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