Opinion
DOCKET NO. A-5725-13T3
04-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLARENCE WILLIAMS, a/k/a CLARENCE EDWARD WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Haas. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-03-0728. Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
An Essex County grand jury charged defendant Clarence Williams in a one-count indictment with first-degree carjacking, N.J.S.A. 2C:15-2. After conducting an evidentiary hearing pursuant to State v. Henderson, 208 N.J. 208 (2011), the trial judge denied defendant's motion to exclude the testimony of the victim, who identified defendant as his assailant.
Following a five-day trial, the jury convicted defendant of first-degree carjacking. The judge sentenced defendant to twenty-five years in prison, subject to the 85% parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also ordered defendant to serve a five-year term of parole supervision upon his release and imposed appropriate fines and penalties. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
BECAUSE THE EYE-WITNESS IDENTIFICATIONS OF [DEFENDANT], BOTH OUT-OF-COURT AND IN-COURT, WERE UNRELIABLE AND THE PRODUCT OF AN IMPERMISSIBLY SUGGESTIVE PROCEDURE, THEY SHOULD HAVE BEEN EXCLUDED.
POINT II
THE SENTENCE OF TWENTY-FIVE YEARS WITH A NERA PAROLE BAR IS EXCESSIVE AND BASED ON A FLAWED VIEW OF THE FACTS AND THE AGGRAVATING AND MITIGATING FACTORS.
After reviewing the record in light of the contentions advanced on appeal, we affirm.A. The court neglected provisions for sentencing in carjacking cases set forth in case law.
B. The court erred in applying aggravating and mitigating factors.
C. Conclusion.
I.
Because defendant's appeal focuses on the judge's decision to permit the victim to testify concerning his identification of defendant, we begin by summarizing the facts derived from the June 25, 2013 evidentiary hearing.
At approximately 5:30 p.m. on June 24, 2011, the victim, Mr. Vasquez, was at a gas station putting air into the rear, driver's side tire of his Infiniti G-35 automobile. It was a clear, sunny day. The car was running and its windows were down. The driver's door was "slightly cracked" open. Vasquez's cell phone and other personal items were in the car.
Suddenly, Vasquez heard the driver's door close, and he stood up to see what was happening. The car "accelerated" away from Vasquez, but then "spun right in front of [him, and began] coming straight in [his] direction, coming quick." Because the car was coming at him, Vasquez testified that he "got a good look" at the driver. Vasquez testified that he "clearly" saw a "[s]lim back male" in the driver's seat of the car. The man "[had] facial hair, curly facial hair" and "was wearing a do[-] rag[.]" The do-rag was not covering the man's face. Vasquez later told the police that he believed the man was in his "mid-20's, early 30's," but "that was just a guess, an assumption."
As the car approached him, Vasquez stuck his hand in the driver's side window and held onto the car. The car continued to accelerate. Vasquez attempted to grab the man's face in order to take control of the car. Vasquez testified that he put his "left hand all over [the man's] face[,]" and he "even had [his] index finger right in [the man's] eyeball." While he was doing this, Vasquez could see the side of the man's face. However, he testified that, after he grabbed hold of the car, he "was most focused on the cars coming [his] way at like [sixty, seventy] miles an hour."
Vasquez estimated that his car was going eighty miles an hour. His right leg was in the air, while his left leg dragged on the ground. Vasquez stated that he "was dragged about [forty, forty-five] yards onto the street." Once he saw traffic coming at him, Vasquez stated that he "decided to jump off the vehicle."
On the day of the incident, Vasquez gave the police a description of his assailant and looked through an album of mug shots. He was not able to identify the man from the photos.
Vasquez's cell phone had a feature that enabled it to be tracked remotely. At first, the feature did not work because the phone was not turned on. However, on June 28, 2011, Vasquez received information concerning the location of the phone, and he returned to the police station. As Vasquez was speaking with two detectives, he noticed several photographs on a bulletin board. One of the photos drew Vasquez's attention. It was of a "slim black male, wearing the same" do-rag as his assailant.
The photos were "Critical Reach Messages" depicting unknown suspects involved in recent offenses.
Because Vasquez kept looking at the photo, one of the detectives asked Vasquez "if [there was] anything wrong[.]" Vasquez asked to take a closer look at the photo. Under the photo, there was a written narrative describing the theft of another Infiniti G-35 at a different gas station. After looking at the photo and reading the narrative, Vasquez testified that "it came to [him] that this is the guy that did it, that did this to [him]."
In October 2011, two detectives went to Vasquez's home to show him a six-photo array. The detective who administered the array told Vasquez "that the person that committed the crime may or may not be in the" array. The detective showed the photos to Vasquez one at a time and did not tell him which photo to select. Vasquez selected defendant's photo. Vasquez stated he was "[a] hundred percent" certain that the person he selected was the "person that carjacked" him. As they were leaving, one of the detectives told Vasquez, "alright, good job. We'll talk to you later. We'll keep you updated." At the evidentiary hearing, Vasquez identified defendant in court as his assailant.
Based upon the evidence presented, the trial judge denied defendant's motion to exclude Vasquez's identification testimony. The judge reviewed the system variables established in Henderson and determined that defendant met his burden of showing some evidence of suggestiveness in the identification process. Specifically, the judge found that there had been "multiple identifications" because Vasquez identified two photos, one from the police station bulletin board and the other during the photo array.
On June 13, 2013, the judge had conducted a Rule 104 hearing to determine whether to conduct an evidentiary hearing under Henderson.
Turning to the estimator variables, the judge found that Vasquez was a credible witness. The judge noted that Vasquez was "under a great deal of stress" and "[i]t was a cross-racial identification." These factors "weigh[ed] in favor of defendant."
The judge found that the other applicable Henderson estimator variables weighed in favor of the State and admitting the identification. The judge observed that Vasquez "was close in distance to the perpetrator"; the offense occurred during daylight; Vasquez had good vision; he was not under the influence of drugs or alcohol; and Vasquez's description of defendant was "accurate apart from a general description of age where it can be difficult to estimate."
In addition, Vasquez was confident in his identification of defendant; only a short period of time elapsed between the incident and the identification of the photo on the bulletin board at the station; and "there was no issue of 'weapon focus.'" The judge noted that Vasquez only saw defendant from the side while he was hanging on the outside of the car, but discounted this factor because Vasquez clearly saw the assailant head-on when the car was coming towards him. Although the perpetrator was wearing a do-rag on his head, the judge found "there was no evidence that a do[-]rag covered any part of [the driver's] face[.]"
After reviewing the totality of the circumstances, the judge concluded that "the estimator variables weigh[ed] heavily in favor of a . . . reliable identification, outweighing any hypothetical risk of misidentification based on the multiple viewings." Therefore, the judge denied defendant's motion.
At trial, Vasquez testified consistently with his testimony at the evidentiary hearing, and he identified defendant as his assailant in court before the jury. In addition to Vasquez's identification, the State presented DNA evidence linking defendant to the offense. On June 29, 2011, the police located Vasquez's car on the side of a road, approximately two miles from defendant's house. It had no tires or rims, and Vasquez's phone and personal effects were missing.
The police searched the car and found, among other things, a soda bottle and a partially-smoked cigarette. The police contacted Vasquez, who confirmed that these items did not belong to him. The police took DNA samples from the two items and sent them to the State Police DNA lab. The lab reported that the samples taken from the soda bottle and cigarette matched a known DNA sample from defendant that was already in the State's DNA database. Based upon this "investigative lead," a detective put together the photo array which was shown to Vasquez at his home by a second detective who was not involved in the investigation.
After Vasquez identified defendant, the police arrested him. In June 2012, a detective took a buccal swab from defendant during a court appearance in order to collect his DNA. The State Police DNA lab concluded that the DNA from defendant's buccal swab matched the DNA found on the soda bottle and the cigarette.
Defendant did not testify at trial and did not call any witnesses.
II.
Defendant argues that the identification procedure the police used was impermissibly suggestive because it involved multiple viewings of defendant's photo, and the Critical Reach bulletin Vasquez saw in the police station contained a description of a crime that was similar to what Vasquez experienced. Defendant also argues that the trial judge's findings concerning the Henderson estimator variables were not supported by the record. We disagree.
When reviewing an order denying a motion to bar an out-of-court identification, our standard of review "is no different from our review of a trial court's findings in any non-jury case." State v. Wright, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 10-11) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We accept those findings of the trial court that are "supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). Deference should be afforded to a trial judge's findings when they are "substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. However, "[a] trial court's interpretation of the law . . . and the consequences that flow from established facts are not entitled to any special deference." Gamble, supra, 218 N.J. at 425.
In Henderson, the Supreme Court considered a wide array of scientific evidence collected and evaluated by a Special Master regarding eyewitness identifications, and concluded that while there is a "troubling lack of reliability" in such evidence, a court may admit it after considering a set of factors. Henderson, supra, 208 N.J. at 217-18. The Court divided the factors into "system variables[,]" which are within the State's control, and "estimator variables[,]" which are not. Id. at 248-72.
System variables concern the manner in which the police conduct an identification procedure and include considerations such as the type of procedure used, how a photo array was constructed and administered, what pre-identification instructions were given to a witness, and whether suggestive feedback was given to a witness post-identification. Id. at 248-61. Estimator variables are factors related to the criminal incident, the witness, or the perpetrator. Id. at 261. They include stress; weapon focus; duration of the witness' observation of the perpetrator; distance and lighting; the witness' characteristics that could impact an identification's accuracy; the perpetrator's appearance, including whether a mask or disguise was employed; racial bias; and the speed of an identification. Id. at 261-272.
Under Henderson, to obtain a pretrial hearing on the admissibility of eyewitness identification evidence, "a defendant has the initial burden of showing some evidence of suggestiveness" in the identification proceeding "that could lead to a mistaken identification." Id. at 288. That evidence must generally be tied to a system, rather than an estimator, variable. Id. at 288-89.
If a hearing is granted, "the State must then offer proof to show that the proffered eyewitness identification is reliable[,]" accounting for both types of variables. Id. at 289. In this second analytical step, the State has the burden of producing evidence consistent with N.J.R.E. 101(b)(2). State v. Henderson, 433 N.J. Super. 94, 107 (App. Div. 2013), certif. denied, 217 N.J. 590 (2014). If the State submits "evidence on the issue that is germane to the inquiry with sufficient clarity so that the [defendant] has a full and fair opportunity to respond[,]" the burden shifts back to the defendant to show "'a very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Henderson, supra, 208 N.J. at 289).
"[I]f after weighing the evidence presented a court finds from the totality of the circumstances that [the] defendant has" carried his or her burden, the eyewitness identification evidence should be suppressed. Henderson, supra, 208 N.J. at 289. If that burden is not met, however, the evidence should be admitted, and "the court should provide appropriate, tailored jury instructions" explaining how the evidence is to be considered. Ibid.
Applying these factors here, we discern no basis for disturbing the trial judge's determination that Vasquez's identification was sufficiently reliable to be admitted under Henderson. As the judge noted at the outset, a hearing was required because Vasquez saw the bulletin at the police station and subsequently reviewed a photo of defendant as part of the array the detective showed him at his home. Thus, the judge found that defendant met his initial burden of demonstrating "some evidence of suggestiveness" in the identification process. See id. at 288.
However, we agree with the judge's conclusion that the State successfully proved that Vasquez's identification was reliable after accounting for both the system and estimator variables. See id. at 289. With the exception of an incorrect estimate of defendant's age, Vasquez provided the police with an accurate description of defendant prior to viewing any photos; the detectives at the police station did not ask Vasquez to view any of the Critical Reach Messages on the bulletin board; and Vasquez noticed the bulletin before he read the narrative. Furthermore, the subsequent photo array was properly conducted. The detective told Vasquez that the perpetrator's photo may or not be included in the array and did not instruct him which photo to select.
The court's analysis of the estimator variables was also supported by sufficient credible evidence. While the situation was obviously stressful for Vasquez, he had a clear view of defendant as the car approached him. The judge acknowledged that the identification was "cross-racial[,]" but found that Vasquez was very confident in his identification. Like the trial judge, we are satisfied after reviewing the totality of the circumstances that defendant failed to demonstrate a "substantial likelihood of irreparable misidentification." See ibid. The judge also carefully instructed the jury in accordance with Henderson's requirements. Thus, we reject defendant's contentions on this point.
The judge told the jury the "[e]yewitness identification evidence must be scrutinized carefully." Among a number of other factors, the judge instructed the jury to consider "the witness' opportunity to view [the crime] and degree of attention [at the time]"; the stress the witness was under; any "prior description[s] of [the] perpetrator"; the "confidence and accuracy" of the witness' testimony; how much time elapsed between the crime and the identification; the "cross[-]racial effects" of the identification; and whether the identification "was the result of a suggestive procedure." --------
III.
Defendant next argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 65; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied that the sentencing judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record and applied the correct sentencing guidelines enunciated in the Code and applicable case law. Defendant's sentence does not shock our judicial conscience. See Case, supra, 220 N.J. at 65; O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess the sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION