STATE OF NEW JERSEY VS. JOHN T. KERNAN (13-12-3525, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4432-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN T. KERNAN,

Defendant-Appellant.

_______________________________

Argued December 12, 2016 – Decided August 22, 2017

Before Judges Sabatino and Nugent.

On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 13-12-3525.

Justin T. Loughry argued the cause for
appellant (Loughry and Lindsay, LLC,
attorneys; Mr. Loughry, on the brief).

Nancy P. Scharff, Assistant Prosecutor, argued
the cause for respondent (Mary Eva Colalillo,
Camden County Prosecutor, attorney; Ms.
Scharff, of counsel and on the brief).

PER CURIAM

Defendant John Kernan appeals from a judgment of conviction

for third-degree aggravated assault, third-degree endangering an
injured victim, and petty disorderly persons mutual fighting. For

those offenses, the court sentenced him to an aggregate four-year

probationary term. Contending he is entitled to a new trial,

defendant challenges the admissibility of an out-of-court

identification and the admissibility of an officer's hearsay

testimony about the identification. He also challenges the verdict

as against the weight of the evidence. For the reasons that

follow, we affirm.

In December 2013, a Camden County grand jury returned an

indictment charging defendant and co-defendant Jacob Terry with

seven offenses: two counts of second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1) (counts one and five); two counts of third-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (counts two and

six); third-degree endangering an injured victim, N.J.S.A. 2C:12-

1.2(a) (count three); and two counts of second-degree conspiracy

to commit aggravated assault, N.J.S.A. 2C:5-2 and 12-1(b)(1)

(counts four and seven). Terry negotiated a plea.

Defendant's trial spanned four days in March 2015. The jury

found him guilty of third-degree aggravated assault of Christopher

Howells (count two), and third-degree endangering an injured

victim Christopher Howells (count three). The jury also found

defendant guilty of the lesser-included petty disorderly offense

of mutual fighting — with Devon Scioli — on count six, which

2 A-4432-14T1
originally charged him with third-degree aggravated assault. The

jury acquitted defendant of the remaining charges.

Defendant moved for a new trial, arguing that an independent

witness's out-of-court identification of him was inadmissible at

trial and the verdict was against the weight of the evidence. In

April 2015, the court denied defendant's motion for a new trial

and sentenced defendant to a four-year probationary term on count

two, third-degree aggravated assault; a concurrent four-year

probationary term on count three, third-degree endangering an

injured victim; and a concurrent one-year probationary term on

count six. The court also imposed appropriate penalties and

assessments. This appeal followed.

The charges against defendant stem from a melee that occurred

on July 21, 2013, after a concert at the Susquehanna Bank Center

in Camden. The brawl began outside the center, in parking lot 11,

not far from a bus. It started over a woman and involved two

groups: the victims and their friends (the first group); and

codefendants Kernan and Terry, Kernan's brother, and their friends

(the second group).

Those involved in the melee were young men ranging in age

from late teens to mid-twenties, and they had, for the most part,

arrived at the Susquehanna Bank Center well before the concert to

3 A-4432-14T1
"tailgate." Most drank beer while tailgating, and some consumed

more beer during the concert.

No one disputes the fight's prelude was a confrontation

between co-defendant Terry and his ex-girlfriend, who was the

current girlfriend of a young man associated with the first group.

Nor does anyone dispute that the two victims, Devon Scioli and

Christopher Howells, were injured and eventually transported to

Cooper Hospital for medical care. The State and defendant sharply

dispute who threw the first punch and what happened after the

first punch was thrown.

The State developed the following proofs. The first group,

consisting of victims Devon Scioli and Christopher Howells, and

eight of their friends, all from Cape May County, came to the

concert on a fifteen-seat passenger bus. While one of the first

group's members, Ryan Price, was walking back to the jitney after

the concert with one victim, Christopher Howells, Price saw his

cousin's current girlfriend, co-defendant Terry's former

girlfriend, punching Terry in the face. Price recognized "a lot

of people" in the second group as they were also from Cape May

County.

According to Price, Terry had "a couple of his good friends

with him in the [second] group." His friends included defendant

and defendant's brother. After being struck in the face by his

4 A-4432-14T1
ex-girlfriend, Terry became incensed and started screaming that

he was going to find and "beat the crap out of [Price's cousin]."

Terry and his friends were "basically plotting to attack [Price's]

cousin and jump him once he came close to the bus."

Price approached and told Terry, "you're not going to jump

my cousin, nobody is going to get in a fight, why don't you guys

just go wherever you came from and leave." As the two exchanged

words, defendant punched Price in the head, knocking him to the

ground. After Price fell to the ground, Terry, defendant, and

defendant's brother jumped on top of him and beat him. To protect

himself, Price "curled up in a ball in a fetal position and put

[his] hands over [his] head." Most of the blows he took were to

the back of his head, his back, and the back of his ribs.

By the time defendant, co-defendant Terry, and defendant's

brother were beating Price, a crowd had gathered and other members

of the first group, including Devon Scioli, had arrived. When

Scioli attempted to assist Price by throwing off the assailants,

they turned to attack him. Once Price "got [his] orientation

back," he saw defendant, defendant's brother, and Terry punching

and kicking Scioli as Scioli was on the ground "curled up in a

ball protecting his face." When Price tried to assist Scioli, the

three assailants turned on him once again, knocking him to the

ground and beating him.

5 A-4432-14T1
 Price testified that defendant, defendant's brother and Terry

"were very actively involved." Although "[t]here may have been

one more on their side that stepped in for a slight period of

time, . . . the three that . . . [Price] saw nonstop punching and

kicking people were the two Kernans and Terry." Price said,

"anybody that stepped into that arena, they took down."

Price estimated he was punched thirty times and kicked "more

than that." When questioned about the attack on Christopher

Howells, Price said:

I saw him after. I cannot say I saw the act
of it happening. I saw that act, the same
exact thing that happened to him happened to
me as it happened to Devon [Scioli]. You know,
where you were knocked down and beat on, but
in [Howell's] case his injuries were so much
worse because the first punch knocked him out
cold.

Price described Howells as "shaking, laying on the ground

with blood all over his face, his teeth were missing. . . . [H]e

had a gash . . . down his entire face and there was blood

everywhere."

According to Scioli, while Price and Terry were engaged in

the verbal exchange about Terry threatening to jump Price's cousin,

defendant "punched [Price] in the back of the head when he [was

not] looking and took him to the ground." Scioli attempted to

pull defendant off [Price], because [Price] "had a couple kids now

6 A-4432-14T1
kicking him." When Scioli pulled defendant off Price, defendant

grabbed Scioli from behind, picked him up, and slammed him down.

Scioli tried to get up, but defendant was on top of him, punching

him. Scioli looked toward Price and saw Price curled up in a ball

with four or five people kicking him. Scioli freed himself and

tried to aid Price, but he was knocked to the ground and people

started kicking and punching him. Scioli was struck in the "head,

chest, back, face, [and] everywhere."

The melee lasted approximately five to ten minutes. The

attack stopped when people noticed that Chris Howells was on the

ground, unconscious, face down in his own blood. People in the

crowd started to scream and other people dispersed. Scioli did

not see what happened to Howells, who was "standing off to the

side." Scioli did say, however, that Howells was struck twenty

or thirty seconds after defendant had tackled Scioli. Scioli also

said defendant had "gotten up and ran away from me."

Scioli testified he had been struck nearly thirty times. He

was dazed, and his heart was "pounding through [his] chest." He

was transported by ambulance to Cooper Hospital, where he was

treated for approximately six hours and released. According to

Scioli, he experiences daily neck pain as the result of the

injuries inflicted upon him.

7 A-4432-14T1
 The attending emergency physician at Cooper Hospital

testified Scioli was alert but "seemed a little distressed" when

he was brought into the hospital. Scioli complained of headaches

and dizziness. The doctor's diagnosis was "alleged assault, facial

laceration and alcohol use." According to the doctor, a CT scan

of Scioli's cervical spine revealed a "disc protrusion at C5-C6."

The doctor explained that a disc protrusion at C5-C6 was tantamount

to "a little bit of swelling of that disc[,] . . . not quite a

herniated disc, but definitely some swelling at that level."

Howells testified he drank nine or ten beers before entering

the concert but none thereafter. When the concert ended, he

returned to the bus parking lot. Before entering the bus, he

noticed Price and Scioli had "stepped away from the [bus] to take

care of a matter that [he was not] completely aware of." They

were approximately thirty to forty feet away from the bus. Five

or six people surrounded them. Howells turned away and when he

turned back he saw Price "down." Howells left the bus and started

walking toward Price to help him. Before he could reach Price,

he was "met by a taller gentleman over six [feet] in a dark

sleeveless shirt." This person approached Howells "to [his] face."

That is the last thing Howells remembered.

Howells was attended to by emergency personnel when the police

and an ambulance arrived at the parking lot. He was transported

8 A-4432-14T1
to Cooper Medical Center where he awoke to severe, throbbing,

burning pain extending down his head through his neck.

The attending physician at Cooper testified Howells was

admitted with a large laceration to his forehead, contusions to

his forehead, and contusions to his left knee and feet. He was

complaining of severe neck pain and he was missing two caps from

his front teeth. A CT scan revealed a sinus fracture. The doctor

irrigated and stitched the laceration, cleaned the abrasions,

prescribed pain medication, and recommended Howells follow up with

a specialist "as needed." During the two months following his

discharge, Howells underwent physical therapy to help rehabilitate

his neck injury.

Scioli's girlfriend and another young man in the first group

also testified for the State. Scioli's girlfriend was walking

back to the bus when she saw Price in a heated conversation "with

a group of guys." A guy with a bandana hit Price in the back of

the head. When that happened, Scioli got involved. Her perception

was the fight involved a large group of guys against Price and

Scioli. She was eventually able to get to Price and she tried to

push them away from the brawl. While she was doing that, "the

same kid . . . with the bandana came over [her] right shoulder

[from behind] and tried to punch [Price] in the head again." She

9 A-4432-14T1
did not see Howells until the fight ended. "He was unconscious

and bleeding profusely out of his head from what [she] could see."

The other young man from the first group testified the fight

erupted after defendant punched Price while Price was in a heated

exchange with Terry. The young man corroborated that Price and

Scioli were repeatedly attacked by two or three people. When the

fighting stopped, the young man and others "flagged down" a sheriff

and called an ambulance. The young man also "saw . . . out of the

corner of his eye," Howells "go down." He then observed people

starting to rush over to Howells "because he was laying on the

ground in a pool of blood." On cross-examination, the young man

acknowledged telling police he saw Howells get hit and the punch

that sent Howells into the bus. He also saw the "kid" who threw

the punch was wearing a dark colored tank top jersey with red

trim.

An independent witness who lived in Pennsylvania saw what

happened to Howells. She made the identification that resulted

in defendant's arrest. The witness had attended the concert with

her husband and friends. They returned to their bus and were

waiting for other passengers to arrive when she saw "a group [in]

front of [her] bus start arguing and then the fight started." She

described the assault on the "victim":

10 A-4432-14T1
 It started out as a bunch of yelling and then
I saw the victim get hit and then somebody
else hit him also. And then they continued
to hit him and that's when I started following
the crowd because I thought he was in trouble.

. . . .

He just was backing up getting hit and hit.
And then I noticed there was another school
bus where he kept . . . backing up. And all[]
I kept thinking was somebody has to stop this
now. And then exactly what I thought
happened. They hit him, he hit his head on
the back of the bus and then he was down on
the ground.

The independent witness saw two males kick the victim after

he was down. She was "probably . . . no more than three or four

feet away from them." The two attackers were wearing jeans and

white T-shirts "and one of them had . . . an American flag bandana

around his neck."

When one of the males kicked the victim again, the witness

started screaming for someone "to get them off of him." She

thought the victim was dead and did not see where the two males

went when the police arrived.

The police arrived a few minutes after the assailants walked

away from the victim. When the police arrived, the independent

witness told them repeatedly the victim needed help. The police

officers put her in a car drove her "to other places because [she

thought] they had a few people lined up." She explained that the

11 A-4432-14T1
police took her to a location in the parking lot where another

police officer was waiting for her.

The independent witness was transferred into the waiting

police car. The police had four people lined up against a fence,

approximately twenty feet from the car. The car's headlights were

on. The independent witness identified the victim's attackers as

the "[t]he two that were in the jeans and the T-shirt and the one

still had the bandana around his neck." Approximately thirty

minutes had elapsed between the attack and her identification of

defendant and co-defendant Terry.

Questioned at trial about how certain she was of the

identification, the independent witness responded: "I was almost

a hundred percent sure. I even said to the police officer, . . .

I definitely know what they were wearing. Like I said, I did not

see their faces but from their clothing and just by the bandana

itself." The witness did not identify defendant in court.

The independent witness testified on a Wednesday and the

trial resumed the following Tuesday. On the intervening Monday,

defense counsel wrote to the court and demanded a hearing

concerning the independent witness's out-of-court identification.

When trial resumed on Tuesday, defendant characterized the

procedure regarding his identification as "kind of a show-up, but

not really." Counsel continued: "It was kind of a lineup too, of

12 A-4432-14T1
some sort, but when I went back and looked at the show-up

identification procedure form I saw that some of the verbiage on

it trailed off and really [did not] give us any information."

Counsel explained that although he "might not have felt"

initially that a hearing was necessary because the identification

took place within half of an hour of the assault, "now that I have

this data it's incumbent upon me to ask for this to be reviewed."

Counsel felt it necessary to explore the issue outside the presence

of the jury and "to probe exactly how this identification

happened." He thought this was a "serious issue" since it was "in

the nature of a show-up . . . or a very, very small lineup. Counsel

believed "[t]here [was] a serious issue as to whether there was

some suggestiveness" and argued that showups "are almost

inherently suggestive."

The trial court denied defense counsel's request for a

hearing. The court recalled that "in the pretrial application

there was some indication there may be an application for a

Henderson1 hearing," but no such application was made before the

trial commenced. The court noted, "Henderson says that the

defendant, of course, may make a tactical choice not to explore

an estimator variable pretrial in order to save up cross-

1
State v. Henderson, 208 N.J. 208 (2011).

13 A-4432-14T1
examination for trial." The court also noted defendant's recently

received written application did not provide any exhibits, leaving

the court unable to "glean from those what they said or [did not]

say."

When pressed, defense counsel could not pinpoint any

discovery that would have caused him to be surprised by the

independent witness's trial testimony. Defense counsel did cite

a discrepancy between the independent witness's recollection of

the perpetrators wearing white T-shirts and defendant and co-

defendant being shirtless when the police detained them. The

court, in response, pointed out "the bandana, apparently, based

upon testimony, seemed to be the crucial element in her

identification." The court also agreed with defense counsel that

charging the jury on "out-of-court identification" would be "very

appropriate."

The State presented the testimony of two officers. Camden

County Sheriff's Investigator Jacob Sidwa responded to the

incident shortly after 11:30 p.m. After arriving at the scene,

the investigator was directed to Howells, who was lying on the

ground, breathing, but motionless. Howells' face was badly beaten

and he looked like he was missing teeth.

According to Investigator Sidwa, while examining Howells, the

independent witness approached him, said she knew who "did it,"

14 A-4432-14T1
and that "they're over here." Approximately fifty yards away,

four males were walking along a fence line away from the parking

area. The investigator had the four males detained – defendant,

his brother, Terry, and a fourth person. Officers transported the

independent witness to the area. Investigator Sidwa stood with

the four males, who were approximately fifteen yards from the

vehicle in which the independent witness was sitting. Investigator

Sidwa said defendant was wearing blue jeans but no shirt.

Defendant "had an American flag-like handkerchief or bandana tied

around his neck." The investigator believed defendant had a black

t-shirt rolled up in his hand. Investigator Sidwa testified "there

was identification made" and defendant was thereafter detained.

The second officer, Camden County Sheriff Captain John

Fetzer, gave testimony consistent with that of Investigator Sidwa.

Captain Fetzer testified the independent witness flagged him down

and said she saw the whole thing. According to the Captain, the

independent witness said the perpetrators were "walking along that

fence line." He proceeded to where they were walking and assisted

in detaining them. Three of the four males were defendant, his

brother, and Terry. Although the Captain was not with the

independent witness, he testified:

She pointed them out. She pointed the two
suspects out, which were [defendant] - - she
identified him as the male without a shirt

15 A-4432-14T1
 with an American flag bandana, blue jeans and
the tan boots. I pointed to him and [the
officer in the car with the independent
witness] radioed over 'affirmative that's one
of the suspects.' I placed him in the vehicle.

And then she proceeded to describe [co-
defendant] Terry, who also was shirtless, with
blue jeans and black sneakers, and he was
holding a dark-colored shirt. She identified
him as well. He was placed in the arrest van.

According to Captain Fetzer, the independent witness said the

other two suspects were not involved in the incident, and they

were immediately released.

The State did not present testimony from the officer who was

in the police car when the independent witness identified

defendant.

Defendant testified and presented the testimony of his

brother and a friend. He also presented the testimony of an

officer who videotaped a statement from Price — to show an

inconsistency in Price's testimony as to the location on his head

where he was initially punched — and a nurse, who telephoned the

victims the night after the incident. The nurse testified that

Scioli said he had no neck pain, and Howells "denied feeling any

facial or nasal pain."

Defendant's friend testified that after leaving the concert,

he met up with defendant, who was wearing a dark, cut-off flannel

shirt earlier in the night. When they reached the parking lot,

16 A-4432-14T1
they saw Terry arguing with Price's cousin and another individual.

Price's cousin was soon joined by others. The verbal altercation

escalated into "pushing and shoving and then punches were thrown."

Defendant's friend said Terry, Price's cousin, and Price were

doing the pushing and shoving, and that defendant arrived after

the argument between Price and Terry had started. Defendant's

friend did not see Price knocked to the ground during the initial

pushing and shoving.

The fight erupted into a "melee" involving "[thirty] to

[forty]" people. Terry, defendant's brother, and defendant were

"outnumbered" because there was "a big group of those fellow

individuals" who "were jumping on [defendant] and [Terry] pretty

good," and "[defendant] was defending himself after he was pretty

much assaulted."

Defendant's friend also said he "kept [his] visuals on

[defendant] and [defendant's brother] very, very well[,]" and "saw

[defendant] get slammed to the ground by a couple of kids and

there was, like, four of them on top of him." Defendant's friend

"push[ed] all four kids off of him[,]" and then he helped defendant

up and "wiped his back off because he had rocks on it[.]"

Defendant's friend did not see defendant kick anybody, nor did he

see defendant and Terry attack anyone together, as "[t]hey were

17 A-4432-14T1
outnumbered substantially." Defendant was not in the area where

Howells was knocked to the ground.

Defendant and his friend "tried to vacate the premises as

soon as possible." They walked away from the fight toward

defendant's truck "to get a couple things" before "catch[ing] the

train home."2 They never reached the truck. Police officers

stopped them and "ordered [him] to put [his] hands behind [his]

back and they put handcuffs on [them] and they told [him] to lay

on the ground face down."

Defendant's brother gave similar testimony. He saw the

exchange between Terry and his ex-girlfriend. According to

defendant's brother, however, the girl's current boyfriend

(Price's cousin) came out of a bus and threatened Terry, and a

fight broke out. Others joined Price's cousin. Defendant's

brother insisted "[a] fight was already breaking out before

[defendant]'s involvement with the – five or six guys and [Price's

cousin] were going after [Terry]. And [defendant] saw that and

wanted to help his friend out in any way he could."

After seeing defendant on the ground with four or five people

on top of him, defendant's brother tried to pull them off.

Defendant's brother also broke a bottle "to divert people's

2
The truck had broken down on the way to the concert so they were
looking for another way to return home.

18 A-4432-14T1
attention and to quell the fighting in any way possible." During

the melee, defendant never hit or kicked anyone; "he was pretty

defenseless . . . ."

The melee ended abruptly when people started screaming about

a person who was on the ground and appeared to be injured.

Defendant's brother and others started walking away from the

incident when police stopped them. Defendant's brother did not

flag down a police officer after the incident because "[e]verything

kind of happened very quickly and it was very chaotic." He did

not tell the police about the assault on defendant and Terry after

they removed his handcuffs and told him to leave because "[he] did

not have the opportunity to."

Defendant gave testimony similar to that of his brother and

his friend. He was wearing a black, white and grey plaid cut-off

flannel t-shirt, and an American flag bandana. According to

defendant, during the argument between Price and Terry, "[t]here

was a point where [he] believed [that Terry] was going to be hit

from behind and then that's when [he] yelled and started running

towards the group." Defendant testified, "when [he] yelled it

alerted that group of people and they grabbed [him] on [his] way

into the situation" and "immediately" started hitting him.

Defendant testified that "the whole time [during the fight] [he]

was being hit by numerous people and [he] just knew [he] was going

19 A-4432-14T1
to go to the ground. So [he] actually threw [himself] on the

ground instead of just going down."

Defendant further testified that once he got up and found his

brother and his friend, they backed away from the area but "it

almost seemed to be like a wall of people coming after [them]."

Defendant said police stopped him and the others in the same

parking lot where the fight had occurred. He did not have a shirt

on; it had been torn off during the fight. His truck was only a

block away. Terry was wearing a "navy blue and black" flannel

shirt. Defendant admitted he was wearing an "American flag

bandana" around his neck, but he denied wearing a white t-shirt

at any time.

The jury rejected the defense and convicted defendant.

Following defendant's sentence, he filed this appeal.

Defendant makes the following arguments:

I. THE [OUT-OF-]COURT IDENTIFICATION WAS OBTAINED
UNDER CIRCUMSTANCES THAT DO NOT PRECLUDE UNFAIRNESS
AND UNRELIABILITY, AND THE CONDITIONS FOR ITS
ADMISSIBILITY WERE NOT MET.

A. The Law Enforcement Officers Conducting
the Out-Of-Court Identification Procedure
Failed to Make the Necessary Record of What
Transpired, and Thus the Out-Of-Court
Identification Fails to Satisfy the Condition
of Admissibility of State v. Delgado, 188 N.J.
48 (2006).

II. THE OUT-OF-COURT IDENTIFICATION EVIDENCE INVOLVED
HEARSAY TESTIMONY THAT VIOLATED THE PROSCRIPTION

20 A-4432-14T1
 AGAINST HEARSAY AND DENIED THE DEFENDANT HIS
CONFRON[T]ATION RIGHTS.

III. THE OUT-OF-COURT IDENTIFICATION WAS SUBSTANTIVELY
UNRELIABLE AND ITS ADMISSION VIOLATES DUE PROCESS;
THE COURT ERRED IN DENYING THE DEFENSE A RULE 104
HEARING, AND THEN ERRED IN PERMITTING THE TESTIMONY
AND EVIDENCE OF THAT IDENTIFICATION, AND ULTIMATELY
ERRED IN DENYING THE DEFENSE'S MOTION TO STRIKE THE
TESTIMONY.

IV. VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE, AND
THE COURT SHOULD VACATE THE THIRD DEGREE VERDICTS.

Defendant first argues the State did not meet the conditions

for admission at trial of the independent witness's out-of-curt

identification. Specifically, defendant contends the law

enforcement officers present when the independent witness made the

identification did not comply with the requirements of State v.

Delgado, 188 N.J. 48 (2006). Those requirements mandate that

officers "make a written record detailing the out-of-court

identification procedure," including "the dialogue between the

witness and the interlocutor," because "[p]reserving the words

exchanged between the witness and the officer conducting the

identification procedure may be as important as preserving either

a picture of a live lineup or a photographic array." Id. at 63.

The difficulty with defendant's argument is that he did not

raise the issue until after the witness testified. By then, the

trial court had had the opportunity to assess the credibility of

the witness and evaluate her identification in the context of a

21 A-4432-14T1
considerable amount of trial testimony. Given those

circumstances, and because the witness's identification of

defendant was made primarily based on the unique bandana he was

wearing, we conclude the trial court's denial of defendant's

belated motion to strike the witness's testimony did not constitute

reversible error.

Rule 3:11 embodies the Supreme Court's pronouncements in

Delgado. The rule states:

(a) Recordation. An out-of-court
identification resulting from a photo array,
live lineup, or showup identification
procedure conducted by a law enforcement
officer shall not be admissible unless a
record of the identification procedure is
made.

(b) Method and nature of recording. A law
enforcement officer shall contemporaneously
record the identification procedure in
writing, or, if feasible, electronically. If
a contemporaneous record cannot be made, the
officer shall prepare a record of the
identification procedure as soon as
practicable and without undue delay. Whenever
a written record is prepared, it shall
include, if feasible, a verbatim account of
any exchange between the law enforcement
officer involved in the identification
procedure and the witness. When a written
verbatim account cannot be made, a detailed
summary of the identification should be
prepared.

(c) Contents. The record of an out-of-court
identification procedure is to include details
of what occurred at the out-of-court
identification, including the following:

22 A-4432-14T1
 (1) the place where the procedure was
conducted;

(2) the dialogue between the witness and
the officer who administered the
procedure;

(3) the results of the identification
procedure, including any identifications
that the witness made or attempted to
make;

(4) if a live lineup, a picture of the
lineup;

(5) if a photo lineup, the photographic
array, mug books or digital photographs
used;

(6) the identity of persons who
witnessed the live lineup, photo lineup,
or showup;

(7) a witness' statement of confidence,
in the witness' own words, once an
identification has been made; and

(8) the identity of any individuals with
whom the witness has spoken about the
identification, at any time before,
during, or after the official
identification procedure, and a detailed
summary of what was said. This includes
the identification of both law
enforcement officials and private actors
who are not associated with law
enforcement.

(d) Remedy. If the record that is prepared
is lacking in important details as to what
occurred at the out-of-court identification
procedure, and if it was feasible to obtain
and preserve those details, the court may, in
its sound discretion and consistent with
appropriate case law, declare the

23 A-4432-14T1
 identification inadmissible, redact portions
of the identification testimony, and/or
fashion an appropriate jury charge to be used
in evaluating the reliability of the
identification.

[R. 3:11.]

If a defendant does not raise a Delgado issue to the "trial

court, it is defendant's burden to demonstrate that the police

failed to create an adequate record . . . and that such failure

was clearly capable of producing an unjust result." State v.

Wright, 444 N.J. Super. 347, 362-63 (App. Div. 2016) (citing R.

2:10-2; Delgado, supra, 188 N.J. at 64; State v. Macon, 57 N.J.

325, 337 (1971)).

Here, defendant did not challenge the independent witness's

out-of-court identification until after she had testified at

trial, and when he did challenge the identification, he did not

clearly articulate a challenge based on the Supreme Court's

pronouncement in Delgado. By then, there was adequate testimony

to support the court's decision to admit the independent witness's

testimony.

We begin by noting defendant had received in discovery the

"Showup Identification Procedures Worksheet" completed by Sergeant

Ryan Carpenter. In the worksheet section inquiring whether a

witness has discussed the identification procedure with anyone

before or during the procedure, and if so, a summary of what was

24 A-4432-14T1
said, the Sergeant wrote: "[The witness] advised Captain John

Fetzer that she witnessed the assault and can identify the[.]"

Nothing followed; the sentence was not completed. Thus, before

trial, defendant was aware of the form's alleged deficiency in the

form.

In addition, the witness had given two statements, which

defendant received in discovery. The first was handwritten not

long after the incident. In that statement, the witness said she

identified the two males in police custody. The second, recorded

two days later, included the following questions and answers:

Q. Okay[,] and then at some point did an
officer come take you in a vehicle somewhere?
Can you tell me what happened with that?

A. Yes an officer came uh we went over to the
(inaudible) lot next to the fence um and
[there] was four that climbed up and two of
them I identified as um the people that hit
[the victim].

Q. Okay and the other two did you recognize
them or they weren't involved at all?

A. No I didn't see — the one guy I saw there
with the other guy — um I didn't see at all.

Q. Okay so they didn't have nothing to do
with it?

A. Uh-Uh.

Q. But the two you picked out were the two
people —

A. Uh-huh.

25 A-4432-14T1
 Q. that you saw punching and kicking the
victim?

A. Yes.

Thus, from the showup worksheet and the statements the witness

gave to authorities, defendant was aware the worksheet was

incomplete and that shortly after the assault, police had driven

the witness to a location where they held four people. The witness

then identified two of them as the perpetrators. In other words,

defendant was aware before trial of the precise grounds upon which

he based the various motions he made after the independent witness

testified at trial.

One consequence of defendant's belated challenge to the

independent witness's identification was that the trial court had

the opportunity to evaluate the circumstances of the witness's

identification of defendant as well as the credibility of her

testimony. The court found her to be credible and her

identification reliable. Moreover, the trial court agreed to give

— and gave — an appropriate jury charge to be used in evaluating

the reliability of the identification.

Rule 3:11 vests trial courts with "sound discretion" in

determining what remedy to impose for a violation of the rule's

substantive requirements. Here, after evaluating the independent

witness's testimony, the trial court exercised its sound

26 A-4432-14T1
discretion to admit the testimony and provide an appropriate

instruction to the jury, a remedy expressly authorized by Rule

3:11. We find no basis for concluding the trial court misapplied

its sound discretion.

In addition to his argument concerning the deficiency in the

showup identification procedures worksheet, defendant argues the

trial court erred by denying his application for "a hearing under

State v. Henderson, 208 N.J. 208, 219 (2011) and State v. Chen,

208 N.J. 307, 326-27 [(2011)]." Defendant says he made the

application "to challenge the imminent out-of-court identification

(that would be consummated by the police officers' testimony

concerning the show-up) as in violation of established standards,

as the product of suggestive procedures, and as essentially

unreliable." Defendant also asserts he was surprised when the

independent witness said she had seen the assailants' faces but

had identified them by their clothing. Lastly, he argues that

because "unnamed others" had assisted the police in pinpointing

four males involved in the melee, third parties may have unduly

influenced the independent witness's identification.

27 A-4432-14T1
 Having failed to request a Wade3 hearing before trial,

defendant explains he relied upon certain police reports, but

those reports are not part of the appellate record. Because we

cannot evaluate the other reports, we decline to consider this

argument. See Wright, supra, 344 N.J. Super. at 362. We

nonetheless address defendant's belated request for a Wade

hearing.

"[T]o obtain a pretrial hearing, a defendant has the initial

burden of showing some evidence of suggestiveness that could lead

to a mistaken identification." Henderson, supra, 208 N.J. at 288

(citation omitted). If a defendant carries this initial burden,

"the State must then offer proof to show that the proffered

eyewitness identification is reliable — accounting for system and

estimator variables — subject to the following: the court can end

the hearing at any time if it finds from the testimony that

defendant's threshold allegation of suggestiveness is groundless."

Id. at 289. Ultimately, a defendant must carry the burden of

proving "a very substantial likelihood of irreparable

misidentification." Ibid. (citations omitted). If a trial court

determines "from the totality of the circumstances that defendant

3
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).

28 A-4432-14T1
has demonstrated a very substantial likelihood of irreparable

misidentification, the court should suppress the identification

evidence. If the evidence is admitted, the court should provide

appropriate, tailored jury instructions[.]" Ibid.

In Henderson, the Court identified several system variables

concerning showups:

7. Showups. Did the police perform a showup
more than two hours after an event? Did the
police warn the witness that the suspect may
not be the perpetrator and that the witness
should not feel compelled to make an
identification?

8. Private Actors. Did law enforcement elicit
from the eyewitness whether he or she had
spoken with anyone about the identification
and, if so, what was discussed?

[Id. at 290.]

In the case before us, defendant did not make the required

threshold showing of some evidence of suggestiveness that could

lead to a mistaken identification. In his letter to the court

following the independent witness's testimony, defendant did not

even mention the term "system variables." The two system variables

identified by the Supreme Court were non-existent. Not even one

hour had elapsed between the event and the independent witness's

identification of defendant; the witness identified defendant

before he left the concert parking area. According to the showup

worksheet, the police instructed the witness the actual

29 A-4432-14T1
perpetrators may or may not be in the showup and that the witness

should not feel compelled to make an identification. Defendant

had the opportunity to cross-examine the independent witness on

these issues before he wrote his letter requesting a Wade hearing.

In his letter, defendant noted discovery did not disclose the

witness had not seen defendant's face but had identified him by

his clothing. He next noted the deficiency in the showup

worksheet. Defendant argued these facts raised questions "of how

this identification came to be made, and what aspects of it lent

suggestion to the selection." This argument implies defendant

wanted to embark on a fishing expedition; the argument does not

establish the existence of either estimator variables or some

evidence of suggestiveness that could lead to a mistaken

identification.

Finally, we consider the context of the independent witness's

testimony. She said she did not see the perpetrators' faces.

Rather, she described them by the way they looked and were dressed.

Defendant's American flag bandana was particularly significant.

He did not dispute he wore it, and there was no evidence anyone

else in the first and second groups, or anyone else present during

the melee, wore a similar bandana.

The bandana might have been a suggestive system variable in

a lineup in which six men were wearing nothing around their neck

30 A-4432-14T1
and one was wearing an American flag bandana. In the immediate

aftermath of a criminal episode, however, in which only person was

identified as wearing such a bandana, and before people had time

to flee far from the crime scene, the bandana became a unique

identifier that added credence to the witness's identification.

Unlike blue jeans or other common clothing, witnesses identified

no one else as wearing an American flag bandana; and the witnesses

from first group provided more than ample testimony that defendant

— the only person identified as wearing an American flag bandana

— was one of the most aggressive perpetrators of the attacks on

the first group's members.

The Supreme Court explained in Henderson:

we anticipate that eyewitness identification
evidence will likely not be ruled inadmissible
at pretrial hearings solely on account of
estimator variables. For example, it is
difficult to imagine that a trial judge would
preclude a witness from testifying because the
lighting was "too dark," the witness was "too
distracted" by the presence of a weapon, or
he or she was under "too much" stress while
making an observation. How dark is too dark
as a matter of law? How much is too much?
What guideposts would a trial judge use in
making those judgment calls? In all
likelihood, the witness would be allowed to
testify before a jury and face cross-
examination designed to probe the weaknesses
of her identification. Jurors would also have
the benefit of enhanced instructions to
evaluate that testimony—even when there is no
evidence of suggestiveness in the case.

31 A-4432-14T1
 [Id. at 294.]

That is what happened here. A credible, independent witness

provided an identification under circumstances suggesting the

identification was reliable. The witness was subject to cross-

examine on estimator variables. The trial court provided the

jurors with enhanced instructions to guide them in evaluating the

testimony. The trial court committed no error in denying

defendant's belated request for a hearing, and even if it did, the

error was harmless. R. 2:10-2.

We have considered defendant's remaining arguments and found

them to be without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2). We add only these comments.

Captain Fetzer's hearsay testimony concerning the independent

witness's identification of defendant was harmless error. R.

2:10-2. He simply confirmed the witness identified defendant.

The jury understood from the independent witness's testimony that

she did not see defendant's face but was identifying him based

primarily on his bandana. This evidence, as well as considerable

circumstantial evidence, was more than ample to support the jury's

verdict.

Affirmed.

32 A-4432-14T1