Opinion
DOCKET NO. A-2469-13T1
11-09-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE BARRIAS, a/k/a JOSE DURAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Alexandra C. Papalia, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-12-1724. Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Alexandra C. Papalia, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
Defendant Jose Barrias was convicted after a July 2013 jury trial of second-degree robbery, N.J.S.A. 2C:15-1; third-degree hindering one's own apprehension, N.J.S.A. 2C:29-3(b)(4); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1(b). The charges arise out of a strong-arm robbery of a sixteen-year-old young man in New Brunswick. Defendant presents the following points on appeal:
POINT I
THE TRIAL COURT'S DECISION NOT TO GRANT A WADE HEARING WAS ERRONEOUS BECAUSE DEFENDANT MADE A SUFFICIENT SHOWING OF IMPERMISSIBLE SUGGESTIVENESS.
POINT II
THE COURT'S FAILURE TO GIVE CRITICAL PARTS OF THE MODEL JURY CHARGE ON EYEWITNESS IDENTIFICATION TESTIMONY ALSO NECESSITATES REVERSAL.
A. The Court Failed to Charge the Jury on Instructions Prior to Identification.
B. The Court Failed to Charge the Jury on Showups.
POINT III
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT. (Not raised below).
POINT IV
THE TRIAL COURT SHOULD HAVE DOWNGRADED DEFENDANT'S SENTENCE TO THE THIRD-DEGREE RANGE BECAUSE THE MITIGATING FACTORS SUBSTANTIALLY OUTWEIGHED THE AGGRAVATING FACTORS.
A. The Court Below Failed to Consider All of the Mitigating Circumstances.
B. The Nature of D.L.'s Alleged Injury Renders Defendant's Purported Conduct Akin to a Lower Degree Offense.
Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm.
I.
The robbery occurred shortly after midnight on June 28, 2012. D.L. was walking home from his girlfriend's house in New Brunswick. Two men confronted him. One wore an orange polo shirt. The other man — the defendant — wore a grayish-blue shirt. One man tripped D.L., and both hit and kicked him. They grabbed D.L.'s wallet from his pocket, but found no money in it. The man in the orange shirt stepped on D.L.'s cell-phone and kicked it away. As D.L. attempted to activate the alarm of a nearby parked vehicle, the two men fled without taking any of D.L.'s possessions.
D.L. ran home. Soon thereafter, D.L.'s mother returned home with D.L.'s step-father, brother, cousin and grandfather. The five family members and D.L. went in search of his attackers in the family vehicle. As they travelled the neighborhood, D.L. spotted two men, but determined they were not the assailants. A short while later, D.L. alerted family-members that he spotted the two who attacked him.
D.L. and the others exited the vehicle. The two men soon recognized D.L. and ran away, but the man in the grayish-blue shirt was slower to leave. After a foot chase, D.L. eventually saw the man in the grayish-blue shirt run into a house on Sanford Street. While family members stood outside, D.L.'s mother called 911. Multiple police vehicles responded to the scene. By that time, it was about 1:00 a.m.
As two officers approached the front door, defendant, still in the grayish-blue shirt, opened the front door. D.L. shouted, "That's him! That's him!" as did other members of his family. Police then placed defendant under arrest. The arresting officer noted that defendant's shirt was torn and that he had scratches on his arm.
Later that morning, D.L. gave a video-recorded statement to New Brunswick Police Detective Ray Quick regarding the robbery, subsequent chase, and arrest. Quick presented D.L. with a single photograph of the defendant, taken after his arrest earlier that morning. Defendant was still wearing the torn shirt. Quick asked D.L. if the man in the photograph was the one who came out of the house on Sanford Street, and also the one who attacked him. D.L. answered affirmatively to both questions.
The photograph is not in the record before us.
The State called two witnesses in its case in chief — D.L. and New Brunswick Police Officer James Hoover, who was present at the house where defendant was arrested. D.L. identified defendant in-court as one of the two men who attacked him. The State also elicited D.L.'s multiple out-of-court identifications: his identification of defendant in the street; his declaration, "That's him!" when defendant exited the house; and his identification of defendant in the single photograph as the man who attacked him and the man who was arrested outside the house. Hoover also identified defendant in court as the person arrested.
Defendant testified, asserting he was misidentified. He explained that he and a friend visited two bars in the neighborhood around the time of the attack. While on the street after one bar visit, defendant's friend alerted him to a group of five or so people, running toward them with sticks and bats. Defendant said he hid in the thorn bushes behind a house, before entering the house. He claimed that he tried to borrow a telephone from one of the occupants to call the police for his own protection, but was unable to do so before the police arrived. When he saw police outside the house, he opened the front door, and was surprised when he was arrested.
Defendant's credibility was significantly damaged in the course of his defense of the obstruction and hindering charges. At the outset of his testimony, defendant stated his name was Jose Barrias. Hoover had testified earlier that defendant gave his name as Jose Duran when he was arrested. Defendant insisted that he told the police his name full name, Jose Alberto Duran Barrias. Asked again on cross-examination to state his name, defendant stated it was Christian Rivera. He admitted he lied about his name. He contended that he gave a false name to police out of fear that he would be detained because of an outstanding hospital debt under his real name. Then, on redirect, defendant stated his name was Christian Rivera Hernandez. The State presented a rebuttal witness who testified that defendant provided yet another variation of his name to police.
Defendant also testified that he did not speak English when describing the circumstances of his arrest. Yet as highlighted on cross-examination, although he was assisted by an interpreter at trial, he often began to answer a question before hearing the translation.
The defense called an employee of one of the bars defendant claimed he frequented. The employee testified that defendant was almost always present for Wednesday karaoke nights between 10:00 p.m. and 2:00 a.m., but could not specifically recall seeing defendant at the bar on June 27, 2012. Defendant also called an investigator who obtained hospital records reflecting that defendant sought medical care under the name Christian Rivera and owed over $6000.
The jury deliberated for less than an hour before returning a guilty verdict. The court sentenced defendant to an aggregate term of five years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
II.
We first address defendant's argument that the court erred in denying his motion to suppress the identification testimony against him and to hold a Wade hearing. Defendant argues that he presented sufficient evidence of suggestiveness to warrant a hearing. He relies on State v. Henderson, 208 N.J. 208 (2011), and State v. Chen, 208 N.J. 307 (2011).
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
A.
We first address the State's argument that Henderson and Chen, which established a new framework for assessing the admissibility of out-of-court identifications, do not apply to this case. The argument relates not only to the standard governing the pre-trial motion, but also to the jury charge the court was obliged to deliver. We conclude that Henderson and Chen fully apply to the pre-trial motion and the court's jury instructions.
The Court in Henderson, supra, identified four options in determining how the new rule adopted could be applied:
The Court can apply a new rule in one of four ways: (1) purely prospectively . . . to cases in which the operative facts arise after the new rule has been announced; (2) in future cases and in the case in which the rule is announced, but not in any other litigation that is pending or has reached final judgment at the time the new rule is set forth; (3) pipeline retroactivity, rendering it applicable in all future cases, the case in which the rule is announced, and any cases still on direct appeal; and (4) complete retroactive effect . . . to all cases.
[208 N.J. at 301-02 (internal quotation marks and citation omitted).]
The Court opted for the second option, but delayed its effective date. "We therefore apply today's ruling to future cases only, except for defendant Henderson (and defendant Cecilia Chen . . .). As to future cases, today's ruling will take effect thirty days from the date this Court approves new model jury charges on eyewitness identification." Id. at 302. The Court decided Henderson and Chen on August 24, 2011. Those model instructions were adopted in July 2012 and became effective September 4, 2012.
Defendant was indicted in December 2012. The trial court heard the motion to suppress the identifications on April 24, 2013. Trial was conducted three months later. Based on the Court's clear language, the instant case qualifies as a "future case."
The State's argument to the contrary is unpersuasive. The State relies on the date of the crime in this case, June 2012, noting it preceded the effective date of Henderson by three months. But the Court did not opt for pure prospectivity, which would require the "operative facts" to arise after the Court's decision. Nor did the court adopt a modified form of prospectivity, which would apply the rule to operative facts that arose after the Court's announced effective date. The Court's decision was based on the timing of "future cases," not of the "operative facts." According to that standard, Henderson and Chen govern.
B.
Before considering defendant's challenge to the admissibility of D.L.'s out-of-court identifications, we summarize the applicable standards in Henderson and Chen.
A defendant is not automatically entitled to an evidentiary hearing on the admissibility of an identification. "The court should conduct a Wade hearing only if defendant offers some evidence of suggestiveness" by police actors. Henderson, supra, 208 N.J. at 290; see also State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). To determine if a defendant has met that threshold, the court should consider the following "system variables": was the identification procedure performed blind or double-blind; did the police give appropriate pre-identification instructions; was the lineup constructed properly; was the witness's confidence recorded; did the witness view the suspect multiple times; in the case of showups, was the identification more than two hours after the event; did the witness speak to other private actors; and did the witness initially choose no one or choose someone else. Henderson, supra, 208 N.J. at 289-90.
The Court explained that scientific literature has divided the variables that "can affect and dilute memory and lead to misidentifications" into two categories: (1) "system variables," which are "factors like lineup procedures which are within the control of the criminal justice system"; and (2) "estimator variables," which are "factors related to the witness, the perpetrator, or the event itself — like distance, lighting, or stress — over which the legal system has no control." Id. at 247.
If after the hearing, the court is convinced that there is "actual proof of suggestiveness," it should consider system variables and estimator variables "to evaluate the overall reliability of an identification and determine its admissibility." Id. at 291. Estimator variables include the witness's level of stress; any focus on a weapon; the duration of the observation; the distance and lighting; the characteristics of the witness and the perpetrator; the time between the event and the identification; and any race bias. Id. at 291-92. These overlap with such variables as the witness's opportunity to view the suspect; the accuracy of prior descriptions; the level of certainty; and any feedback from police. Id. at 292.
The defendant bears the burden to prove "a very substantial likelihood of irreparable misidentification." Id. at 289 (stating that burden allocation is unchanged under new test). "[C]oncerns about estimator variables alone cannot trigger a pretrial hearing." Id. at 293.
Even where no police action has suggested the identification, the Court in Chen, supra, in the exercise of its gatekeeping function, held that a defendant may challenge an identification if tainted by private activity. 208 N.J. at 311. However, the burden is greater than in the case of police conduct. "[T]o obtain a pretrial hearing, a defendant must present evidence that the identification was made under highly suggestive circumstances that could lead to a mistaken identification." Id. at 327. Then, as in the case of police conduct, the State must "offer proof to show that the proffered eyewitness identification is reliable, accounting for system and estimator variables; and . . . [the] defendant has the burden of showing a very substantial likelihood of irreparable misidentification." Ibid.
C.
Turning to D.L.'s identification of defendant at the scene, we agree with the trial court that no hearing was warranted. The identification was not a product of police identification procedures at all. Although defendant exited the house after police arrived, police did not present him as a suspect or request an identification. Rather, D.L. spontaneously shouted, "That's him! That's him!"
Defendant contends that D.L.'s family members acted suggestively. However, defendant falls far short of meeting the demanding standard in Chen that he present evidence of "highly suggestive" private conduct. There is simply no record evidence that D.L.'s family members suggested or directed D.L.'s identification of defendant on the street, or after defendant exited the house. Rather, D.L. stated in his video-recorded statement to police — produced in discovery — that he was the one who first spotted defendant on the street and alerted his family to defendant's presence. D.L. also stated he was the one who shouted, "That's him! That's him!"
Although defendant also refers to a police report produced in discovery, a copy was not included in the record on appeal.
We recognize that Hoover testified at trial that other family members also pointed out defendant when he exited the house. However, there is no evidence that the family members prompted D.L.'s identification.
D.
We reach a different conclusion when it comes to D.L.'s out-of-court identification of defendant's photograph. The State contends that the photo identification was merely a confirmation of D.L.'s on-the-scene identification several hours earlier. We disagree.
D.L. was not merely asked whether the photograph accurately depicted the person whom he identified exiting the house. There was little question of that. Defendant was photographed still wearing the torn shirt. D.L. was also asked whether the person depicted was the person who attacked him earlier that night. That is significantly different.
The defense in this case was misidentification. The defense theory was that D.L. at most identified the attacker's shirt and ethnicity. Notably, there is no record evidence that D.L. gave any description of his attackers' facial features or body types. Although D.L. insisted at trial that he described to his mother the attackers' body types, he did not testify what they were.
As an identification of the person who attacked him, D.L.'s selection of defendant's photograph was the product of highly suggestive police conduct. Multiple system variables indicate suggestiveness. D.L. was presented with a single photograph. Defendant was wearing clothes that identified him with the chase. The officer did not provide appropriate instructions. The administration was not blind, and the officer provided positive feedback.
In short, defendant was entitled to a hearing on the photograph identification. At such a hearing, the State would have been required to present evidence that the identification was reliable, accounting for the system variables that tilted the other way. By necessity, the State would have had to present evidence of estimator variables that provide some confidence that defendant was identifying the person, and not the shirt.
D.L.'s identification of the man who attacked him would have been substantially more reliable had police created a photo array that included defendant — clad in a different colored shirt — and fillers who resembled him, along with appropriate instructions. Obviously, if D.L. selected defendant in such an array, the argument that he identified only a shirt would have been weakened. On the other hand, if D.L. could not make a facial identification, the defense theory would be strengthened. --------
Although we conclude that the trial court erred with respect to the photo identification, we are persuaded the error was harmless. An error affecting a defendant's constitutional rights requires reversal unless we find it "harmless beyond a reasonable doubt." State v. Cabbell, 207 N.J. 311, 338 (2011). We must consider whether there was "some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." State v. Lazo, 209 N.J. 9, 26 (2012). In doing so, we must independently assess the quality of the evidence of defendant's guilt. State v. Sterling, 215 N.J. 65, 102 (2013).
We have no reasonable doubt that had the photo identification been excluded, the jury would have reached the same conclusion. The photo identification was not an essential element of the State's case. Cf. Lazo, supra, 209 N.J. at 26 (refusing to find harmless error where the conviction rested solely on the challenged identification evidence). The jury heard D.L.'s in-court identification of defendant, as well as evidence of his out-of-court identifications on the street and as defendant exited the house. Defendant wore a grayish-blue shirt at the time of arrest consistent with D.L.'s description of his attacker. Defendant's denial that he participated in the attack was undermined by the challenges to his credibility at trial.
III.
Defendant next contends that the court erred in omitting two sections of the post-Henderson model charge on out-of-court identifications pertaining to system variables. Defendant requested one section, regarding instructions prior to viewing the photo array, which was pertinent to D.L.'s identification of defendant's photograph:
Instructions: You should consider what was or what was not said to the witness prior to viewing a photo array. Identification procedures should begin with instructions to the witness that the perpetrator may or may not be in the array and that the witness should not feel compelled to make an identification. The failure to give this instruction can increase the risk of misidentification. 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.He also contends, as plain error, the court should have included the model charge on showups:
[Model Jury Charge (Criminal), "Identification: Out-of-Court Identification Only" (2012).]
Showups: In this case, the witness identified the defendant during a "showup," that is, the defendant was the only person shown to the witness at that time. Even though such a procedure is suggestive in nature, it is sometimes necessary for the police to conduct a "showup" or one-on-one identification procedure. Although the benefits of a fresh memory may balance the risks of undue suggestion, showups conducted more than two hours after an event present a heightened risk of misidentification. Also, police officers must instruct witnesses that the person they are about to view may or may not be the person who committed the crime and that they should not feel compelled to make an identification. In determining whether the identification is reliable or the result of an unduly suggestive procedure, you should consider how much time elapsed after the witness last saw the perpetrator, whether the appropriate instructions were given to the witness, and all other circumstances surrounding the showup.
[Ibid.]
As for the first section, we agree that the requested instruction was appropriate. The State's argument to the contrary echoes its contentions with respect to whether a Wade hearing was warranted regarding the photo identification. For much the same reasons, we find the argument unpersuasive. But, for the same reasons set forth above, we deem the omission to be harmless. We recognize that generally, erroneous jury charges are "poor candidates for rehabilitation under the harmless error philosophy." State v. Vick, 117 N.J. 288, 289 (1989). "Nevertheless, any alleged error . . . must be evaluated in light of the overall strength 'of the State's case.'" State v. Burns, 192 N.J. 312, 341 (2007) (internal citation omitted).
The court's instruction, with the omission of the 'instructions' section, was not erroneous; it was only incomplete. See State v. Delibero, 149 N.J. 90, 106 (1997) (distinguishing between instructions that are incorrect and instructions that are "capable of being improved"). The jury was instructed that it should consider the circumstances of the out-of-court identification. The court stated:
In evaluating the reliability of a witness's identification, you should also consider the circumstances under which the out-of-court identification was made, and whether it was the result of a suggestive procedure. In that regard, you may consider everything that was done or said by law enforcement to the witness during the identification process. You should also consider when a witness views the same person in more than one identification procedure it can be difficult to know whether a later identification comes from the witness's memory of the actual, original event, or of an earlier identification procedure.
As a result, if a witness views an innocent suspect in multiple identification procedures, the risk of mistaken identification is increased. You 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.
In this case, the witness first identified the defendant at 94 Sanford Street and then the next day after being shown one photograph by the police. In determining whether the identification is reliable or the result of an unduly suggestive procedure, you should consider how much time elapsed after the witness last saw the perpetrator and all the other circumstances surrounding the identification.
Moreover, the "instructions" section was in some ways inapt, as there was no array presented to D.L.; he was only shown the photograph of defendant in his torn shirt. Given the other identification proofs, and the challenges to defendant's credibility, we view the omission as harmless.
We reject defendant's argument regarding the requested showup instruction for two reasons. First, D.L.'s identification of defendant at the house was not a showup, as police did not present defendant as a suspect. Therefore, the statement in the model charge, "police officers must instruct witnesses that the person they are about to view may or may not be the person who committed the crime" had no relevance.
Second, the court's revisions of the charge were made at the behest of defendant. Although a significant part of the charge conference was held in chambers, the court stated on the record:
All right. On page 15 we took out line up composition and fillers 1 and 2, because
it doesn't pertain. As to 3, we're keeping in "multiple viewings" and then not to rehash a—a very length discussion we had, but I think we're all in agreement that what happened here wasn't really a show up, but there was a photograph shown to the—to [D.L.] the day after the incident, which he identified the defendant's photograph.
And so we're combining 3 with a hybrid of 4, which will say, "In this case the witness first identified the defendant at 94 Sanford Street and then the next—"—"and then—"—"—and then the next day after being shown on photograph by the police". And then it will go on to say, "In determining whether the identification is reliable or the result of an unduly suggestive procedure, you should consider how much time elapsed after the witness last saw the perpetrator and all other circumstances surrounding the identification."
The judge inquired as to whether counsel agreed. The judge stated, "[I]n fact . . . this really came from the defense. Pretty much all of the changes that have been requested with regard to — at least those that I've discussed so far with this identification charge." Defense counsel then voiced objection to omitting the section on instructions, but not the section on showups. Although we find no harmful error, we conclude in any event that defendant is barred from objecting to the failure to include the full showup section of the model charge, as defendant invited the instructions the court delivered. See State v. A.R., 213 N.J. 542, 561 (2013).
IV.
Defendant's argument that the prosecutor engaged in multiple instances of misconduct in his summation, which are presented as plain error, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Having carefully reviewed defense counsel's summation and the prosecutor's response, we are convinced that the prosecutor's statements fell within the range of permissible argument and commentary on witness credibility. See Lazo, supra, 209 N.J. at 29.
V.
Finally, we find no merit to defendant's argument that the court should have downgraded his sentence to the third-degree range. The hurdle for establishing a basis for a downgrade is high. See State v. Megargel, 143 N.J. 484, 496-502 (1996). We perceive no abuse of discretion in the court's determination that a downgrade was unwarranted under the circumstances.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION