NOT FOR PUBLICATION WITHOUT THE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-1143-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM C. COOPER, JR., a/k/a WILLIAM
SMITH and WILLIAM C. SMITH,
Defendant-Appellant.
_______________________________________
Argued April 11, 2018 – Decided August 31, 2018
Before Judges Fuentes, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
11-12-2963.
Seon Jeong Lee, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Seon Jeong Lee, on the
brief).
Linda A. Shashoua, Assistant Prosecutor,
argued the cause for respondent (Mary Eva
Colalillo, Camden County Prosecutor,
attorney; Linda A. Shashoua, of counsel and
on the brief).
PER CURIAM
Defendant William C. Cooper, Jr.1, was tried before a jury
and convicted of knowing or purposeful murder, N.J.S.A. 2C:11-
3(a)(1)(2), felony murder, N.J.S.A. 2C:11-3(a)(3), five counts of
first degree robbery, N.J.S.A. 2C:15-1, five counts of third degree
criminal restraint, N.J.S.A. 2C:13-2(a), second degree unlawful
possession of a handgun, N.J.S.A. 2C:39-5(b), second degree
possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-
4(a), second degree possession of a handgun by a person previously
convicted of one of the crimes listed in N.J.S.A. 2C:39-7(b), and
conspiracy to commit armed robbery and criminal restraint,
N.J.S.A. 2C:5-2. The trial court sentenced defendant to an
aggregate term of 124 years, with 101 years, one month, and twenty-
four days to be served without parole, as mandated by the No Early
Release Act, N.J.S.A. 2C:43-7.2.
The central and dispositive issue in this appeal requires
this court to determine whether the out-of-court identification
made by the State's key witnesses was irreparably tainted by the
suggestive setting in which it was made. Equally troubling is the
testimony of a man who claimed defendant admitted to him that he
committed these crimes, while the two men were detained together
in the Camden County Jail. For the first time on appeal, defendant
1
Defendant was tried together with his codefendant, Rashawn
Carter.
2 A-1143-15T1
also argues that the trial judge abused his discretion under Rule
1:8-2(d) when he failed to discharge two jurors while the jury was
deliberating. Finally, defendant claims the jury's verdict must
be vacated because it was tainted by a coercive environment during
deliberations.
After reviewing the record of this trial and mindful of
prevailing legal standards, we conclude the out-of-court
identification of defendant made by the widow of the murdered
victim in this robbery was irreparably tainted by the suggestive
environment in which the identification was made. The law
enforcement agents who were investigating these crimes brought the
witness to the courtroom where defendant was to be arraigned on
these charges, and asked her if she could identify him as one of
the participants in the robbery. The witness, accompanied by a
victim's advocate employed by the Camden County Prosecutor's
Office (CCPO), made this identification as she sat in the courtroom
and watched defendant enter the courtroom, escorted by Sheriff's
Officers, handcuffed and wearing a prisoner uniform from the Camden
County Jail. Although the witness' ability to speak and understand
English is limited, and thus she may have not understood the verbal
interactions between defendant and the judge, we conclude the
prejudice caused by this manner of identification spoke for itself
3 A-1143-15T1
and needed no further explanation. Consequently, this verdict
cannot stand.
I
The Robbery
At approximately 8:40 p.m. on October 14, 2009, three men,
later identified as defendant, codefendant Rashawn Carter, and a
third individual, entered Alex's Bakery, located in the Township
of Woodlynne in Camden County. The owners of the bakery, Oscar
Hernandez and Silvia Ramos-Morales, husband and wife, were inside
the bakery working. At trial, Ramos-Morales described what
occurred during the robbery, including how her husband was killed.
The following account is taken primarily from her testimony and
the testimony of Giovanni Bautista, a customer of the bakery.
Although Bautista was unable to enter the bakery during the
robbery, he was able to describe one of the assailants based on
what he saw through the windows. Both Ramos-Morales and Bautista
testified at the trial through a court-appointed Spanish language
interpreter.
The prosecutor used photographs of the bakery as a visual aid
to guide the witnesses' testimony. Ramos-Morales testified that
on the night of the robbery, a woman carrying a baby came into the
bakery, asking to buy only a slice of a cake. This woman was
later identified as Latasha Baker, the sister of codefendant
4 A-1143-15T1
Carter. Hernandez told her that she could not buy a slice of that
particular cake. Baker left the bakery but soon returned and
again asked to buy a slice of that cake. Ramos-Morales testified
that her husband again told Baker that the cake was not sold in
individual slices. According to Ramos-Morales, Baker "continued
arguing[,] . . . she wanted . . . to force us to give her that
slice of cake."
At this point, Ramos-Morales testified that three assailants
entered the bakery "to rob us." According to Ramos-Morales, the
assailant, whom she later identified as defendant, was armed with
a handgun and wore a hooded sweatshirt with the hood pulled over
his head, a black face mask that covered his entire face, and
gloves. Only his eyes were visible. Ramos-Morales and Bautista
both testified that the assailant who was later identified as
codefendant Carter, was wearing a red "Ed Hardy" jacket; he did
not have a mask covering his face or gloves on his hands. The
third unidentified assailant wore a black jacket with grey and
white stripes.
According to Ramos-Morales, defendant walked towards the
cash-register and pointed the handgun at Hernandez, who was
standing behind the counter. She testified that
at that moment [Hernandez ran] towards the
kitchen and he was able to close the door, but
the person followed him. And they forced the
5 A-1143-15T1
door [open] and the person was able to push
the door. He was able to put the gun in his
face and he shot at my husband.
Ramos-Morales testified that defendant was the man who fatally
shot Hernandez.
Immediately after the shooting, the third man who had been
standing guard at the front door of the bakery and codefendant
Carter "gathered" all the patrons in the bakery and "took them
towards the front and told them all to get down on the ground."
The patrons were later identified as Blanca and Anayeli Ramirez,
Felipe Lopez, and Latasha Baker and her infant child. Ramos-
Morales noted that "[t]he woman that had the baby, I remember that
she did not go down on the ground."
Defendant gathered Lopez, Blanca, and Anayeli, forced them
into the kitchen, and robbed them of whatever money they had on
their person. Ramos-Morales was able to stay hidden from
defendant's view, and pressed an alarm button that the bakery had
installed. In the meantime, Carter and the third assailant
unsuccessfully attempted to open the cash register. Ramos-Morales
testified that before leaving the bakery, the man who had shot her
husband noticed her while she was still pressing the alarm button,
and motioned with his handgun for her to go into the kitchen.
Around that time, someone yelled that the police were on their
6 A-1143-15T1
way, and the men left the bakery. Hernandez died from a gunshot
wound to the left side of his chest.
The Investigation
CCPO Sergeant Lance Saunders was the lead
detective/investigator. He interviewed Ramos-Morales. She
described the person who shot her husband as "tall, not a really
short person but not that tall . . . ." She told Saunders that
the assailant was taller than him. With respect to his weight,
she again was less than precise. She told Saunders that the
assailant was a "little bit heavier than the others . . . ." She
was only certain about one detail: she did not see his face.
The CCPO also interviewed Latasha Baker as a witness and
victim of the robbery. Baker had entered the bakery with her then
one-year-old son two times shortly before the robbery, ostensibly
to buy a slice of cake. She was inside the bakery when the three
assailants entered. She told the police officers who responded
that the assailants took her cellphone during the robbery and gave
the police her cellphone number. Saunders secured a Communication
Data Warrant to track Baker's purportedly stolen cellphone. Using
the cellphone number, United States Marshal John Husinger traced
the location of the "stolen" cellphone to an address corresponding
to Baker's house.
7 A-1143-15T1
When the law enforcement agents responded to Baker's
residence, she allowed them to enter. Using a hand-held signal
monitoring device, the agents found the cellphone under her living
room couch. Based on this discovery, Saunders asked Baker to
explain how this allegedly stolen cellphone ended up under a couch
in her home. According to Saunders, Baker gave three different
reasons: (1) the assailants "probably knew that she was a single
mother with two kids[,] so they broke into her house and put the
phone back;" (2) the assailants "were trying to frame her;" and
(3) the assailants "probably put it back so she wouldn't tell on
them."2
Saunders reviewed Baker's cellphone records, and discovered
that between 8:00 p.m. and 9:00 p.m. on the date of the robbery,
there were approximately thirteen calls between Baker's cellphone
and codefendant Carter's cellphone. All of the calls were placed
in the general area of the bakery and Baker's home. Saunders also
viewed the video security footage of the bakery from the night of
the robbery. He saw Baker leaving the bakery for the first time,
and walking towards a rear alley adjacent to the bakery. The
video record also shows the three assailants emerging from the
same alley a few minutes prior to the robbery.
2
Defense counsel objected to this line of questions that required
Saunders to relate what Baker told him as impermissible hearsay.
8 A-1143-15T1
Saunders also spoke to Eddie Bell, the biological father of
Baker's child. Saunders testified that Bell viewed the video
recording from the security camera and identified the red Ed Hardy
jacket codefendant Carter wore during the robbery as identical to
a jacket he owns. Defense counsel objected to this line of
questioning, characterizing Bell's identification of the jacket
as "opinion" testimony and "pure speculation." The trial judge
overruled the objection. At this juncture, the trial judge gave
sua sponte instructions to the jury characterizing Detective
Saunders as an expert witness. Defense counsel did not object.
Saunders also interviewed Vernon Carter,3 codefendant
Carter's brother. Vernon told Saunders that his brother admitted
to him his involvement in the robbery. He told him that they were
"supposed to . . . get the money and that's it" but the "robbery
went bad." The CCPO secured an arrest warrant for Rashawn Carter
and the U.S. Marshals Regional Fugitive Task Force executed the
warrant and arrested codefendant Carter at his sister's house.
The U.S. Marshals found Rashawn Carter and defendant hiding in a
pantry closet and arrested both men.
3
Because Vernon Carter has the same last name as his codefendant
brother, we will refer to Vernon Carter by his first name. We do
not intend any disrespect.
9 A-1143-15T1
The Out-of-Court Identification
Detective Saunders informed Ramos-Morales that the CCPO had
arrested two of the three men involved in the robbery of the bakery
and murder of her husband, and were still working to find the
third individual. Ramos-Morales testified at a Wade4 evidentiary
hearing conducted by the court on October 1, 2014. In response
to the prosecutor's questions, she gave the following testimony,
as interpreted by a court-certified interpreter:
Q. At some point during the investigation,
shortly after your husband was murdered, did
Sergeant Saunders tell you some people had
been arrested?
A. Yes.
Q. What did he tell you about the people who
had been arrested?
A. He said that they had just arrested two
people, that one was missing. And they were
working to find the other person.
Q. As to the two people that had been arrested,
did he tell you specifically what either of
them had done during the murder?
A. No.
Defendant and codefendant Carter were scheduled to be
arraigned in October 2009. It is undisputed that members of the
CCPO arranged to have Ramos-Morales transported from the bakery
4
United States v. Wade, 388 U.S. 218 (1967).
10 A-1143-15T1
and brought to the courthouse to observe the arraignment. We do
not know what, if anything, was said to her about the arraignment
process during this trip. The prosecutor continued her direct
examination of Ramos-Morales with the following questions about
the arraignment:
Q. Did [Saunders] tell you anything about what
those two people arrested had been wearing
during the time of the murder?
A. I don't remember exactly as far as the two
that were arrested. Well, then I came to
[c]ourt and I saw two people in the [c]ourt,
I recognized one of the persons.
Q. Okay. Now, I want to talk a little bit
about that. Before coming to [c]ourt did
Sergeant Saunders tell you these two arrested
people have a [c]ourt date?
A. He said that I had to come to [c]ourt - -
I had to come to [c]ourt to give my witness
- - my testimony.
Q. Okay. But before you had to come testify,
[sic] was there a time when you came and
recognized someone and you didn't testify?
A. Yes.
Q. Did - - what, if anything, did anyone tell
you was going to happen that day in [c]ourt?
A. The day that I came and recognized the
person I wasn't seated here, I was seated in
the auditorium, or the audience. One of the
two people . . . sitting over there, there was
one taller than the other, one was a little
fatter. One of the faces was more human than
the other.
11 A-1143-15T1
Q. Okay. Let me stop for a moment. I know
you recognized someone. And I'm not asking
how did you recognized that person; okay?
What I . . . want to know is, what did anyone
tell you was going to happen in [c]ourt before
you came to [c]ourt? Did you know you were
going to see the arrested people?
A. No. No, he said if I wanted to come to
[c]ourt fine, the people may be there or they
may not be there.
Q. Okay. Did Sergeant Saunders, or anyone
else, say anything to you about trying to
recognize anyone?
A. No.
At this point in the Wade hearing, defense counsel asked
Ramos-Morales a series of questions intended to asses her ability
to understand English, unassisted by the interpreter. Defense
counsel noted that in the last "couple of questions," Ramos-Morales
had been "shaking [her] head" seeming to understand the question
before the interpreter completed the interpretation. Defense
counsel asked Ramos-Morales:
Q. Do you understand . . . what I am saying?
A. Yes.
Q. Okay. Do you understand what I'm saying
when I talk [sic] in English?
A. Some of the things I do, yes.
Q. Okay . . . [H]ow long have you been living
in the United States now?
A. 14 years.
12 A-1143-15T1
Q. Okay. So, . . . when this incident happened
you had been living in the United States for
about nine years?
A. More or less, yes.
At this point, the prosecutor objected stating: "I can
represent to the [c]ourt that she's been taking English classes,
but she's more comfortable with an interpreter and she does not
understand enough to be able to testify without one." Defense
counsel argued that he did not question the need for an interpreter
when the witness was testifying. Counsel stated: "[M]y questioning
is going to go towards what she understood in the [c]ourtroom
prior to making the identification." The court overruled the
prosecutor's objection and held that this was a "legitimate line
of questioning about her ability to understand whatever was being
communicated to her before that [c]ourt event."
The record shows that Ramos-Morales came to this country from
Mexico in 2006. By that time, the bakery had been opened "for
three years." The day Ramos-Morales came to court to see the
arraignment, she was "picked up by members of the prosecutor's
office." Although she had interacted with Saunders and other
members of the CCPO before that day, she did not remember whether
Saunders was in the car with her that day. She knew that
Investigator Saunders was the person who was investigating her
13 A-1143-15T1
husband's murder. In response to defense counsel's question,
Ramos-Morales stated that a person from the CCPO named "Margarita"
accompanied her in the courtroom on the day of the arraignment.
"Margarita" was also in the courtroom earlier in the Wade hearing.
The record shows that when Ramos-Morales arrived for the
arraignment, she sat in the courtroom audience. Defendant entered
the courtroom in an orange jail jumpsuit, and was handcuffed and
shackled. The probable cause statement that was read aloud for
the record stated: "information had been received from a witness
who . . . knew [defendant], [and] that he was the one that was in
the video that had the gun and that shot the victim[.]" At the
Wade hearing, Saunders testified that when defendant entered the
courtroom, Ramos-Morales "immediately spoke out, and . . .
communicated in Spanish [to her interpreter], and she immediately
told me she recognizes the guy that shot her husband. I
immediately said stop . . . We'll go back to the office[.]"
By contrast, at the Wade hearing, Ramos-Morales equivocated
about what she told the CCPO about the out-of-court identification:
Q. When you recognized the person you
described to us as having shot your husband,
did you say anything in [c]ourt right then?
A. No.
Q. Are you sure?
14 A-1143-15T1
A. I don't exactly -- I don't remember what I
said exactly.
. . . .
Q. [D]o you remember telling any of the people
around you that you recognized someone?
A. I believe so. And -- and I have always
told them, the person that killed my husband
was that person. I've always said.
According to Ramos-Morales, she was able to identify
defendant, despite the fact that the assailant who murdered her
husband wore articles of clothing specifically arranged to conceal
his face. Ramos-Morales nevertheless insisted that codefendant
Carter "had a more human face[.]" However, when she looked at
defendant: "You could see that . . . he was evil, he was bad. The
way he walked." She further explained, "his walk, the way he
walked, the way they walked in I saw them . . . His features."
At the conclusion of the arraignment, Ramos-Morales and
Saunders left the courtroom and went directly to the Prosecutor's
office to take an identification statement. There, Saunders asked
Ramos-Morales to repeat what she had said in the courtroom.
Specifically, Saunders asked her if she had recognized defendant
as one of the two men who had robbed the bakery. Ramos-Morales
clarified that she recognized defendant as the person who had shot
her husband.
15 A-1143-15T1
At trial, Ramos-Morales described her out-of-court
identification of defendant. She explained that she was able to
identify defendant as the man who murdered her husband because at
the arraignment: "[he] had the face of a mean person . . . I
thought he was the one that had shot at my husband because I
observed the eyes of both of them and their head[s]. And when I
was observing that person[,] I became scared." (Emphasis added).
She reiterated that she was able to identify defendant because of
"the features of his head and his eyes." She also claimed that
she was not certain whether she had identified defendant during
the arraignment or after.
The Testimony of Michael Streater
After his arrest, defendant was detained at the Camden County
Jail pending trial. He shared a cell with Michael Streater.
Streater was charged with leaving the scene of a fatal accident
and robbery. Streater entered into a negotiated agreement with
the State, as represented by the CCPO, in which he agreed to plead
guilty to leaving the scene of a fatal accident. In exchange, the
State agreed to downgrade the robbery charge to third degree theft,
and recommend the court sentence Streater to a term of imprisonment
not to exceed six years, without any minimum period of parole
ineligibility. The State also agreed to allow Streater to be
released on bail on December 31, 2009, pending sentencing.
16 A-1143-15T1
On January 11, 2010, Streater contacted the CCPO and spoke
to Saunders about what defendant had allegedly told him while they
shared a jail-cell at the Camden County Jail. While out on bail,
Streater was arrested for driving while intoxicated and
endangering the welfare of child by "putting children at risk of
death or serious bodily injury." Streater negotiated a new plea
agreement. In exchange for agreeing to testify as a cooperating
witness in the State's case in chief against defendant, Streater
would plead guilty to second degree endangering the welfare of
child, N.J.S.A. 2C:24-4, and the CCPO would agree to recommend a
maximum sentence of five years, without any minimum period of
parole ineligibility, concurrent to the previous six-year term.
Thus, by agreeing to testify against defendant, Streater
negotiated a plea agreement that guaranteed no direct penal
consequences for committing a serious crime involving the welfare
of children, that he committed while on bail awaiting sentence for
a crime that caused the death of the victim.
At trial, Streater testified that he remembered newspaper
clippings from Philadelphia being sent to defendant while he was
in the Camden County Jail. He read these newspaper clippings a
couple of times. He testified that after he read these newspaper
clippings, defendant began to open up to him and told him what
actually occurred during the robbery of the bakery. According to
17 A-1143-15T1
Streater, defendant initially told him he was not involved in this
robbery. Streater testified that defendant eventually told him
he was "locked up for [a] capital murder" that happened at a
bakery. Streater claimed defendant never mentioned he wore a mask
or made any effort to conceal his face, "but I guessed he disguised
himself." Streater also claimed defendant told him that "the
person's wife couldn't identify him because he had the mask on."
Jury Deliberations
The jury began deliberating on November 12, 2014. Two days
later, the jury sent out a note that stated:
1) [scratched out illegible]
2) Question from [J]uror #5:
Deliberation process is too stressful, and she
is asking to be substituted with one of the
alternate jurors.
3) Can we re-review the video of masked man
running into bakery?
. . . .
4) We believe we are missing some evidence[.]
Is there anything we don't have[?]
. . . .
5) Last night Juror #11 looked up info on
internet about the facts on everything in
manilla [sic] folder.
Is this OK?
Can info be shared to all jurors?
18 A-1143-15T1
After conferring with counsel, the judge brought out Juror
Number 11. She confirmed that she had conducted internet research
that morning, printed what she found, and brought those documents
to court with her in a manila folder. The research included
"Police Records" by the Reporters Committee for Freedom of the
Press, Winter 2008, "How Reliable is Eyewitness Testimony" by the
American Psychological Association, April 2006, and "Exonerations
in the United States, 1989 to 2012," by the National Registry of
Exonerations, June 2012. At the prosecutor's suggestion, the
judge asked Juror Number 11 whether she had shared this information
with other jurors and if there had been any response to this
material from any other juror. Eventually, the following colloquy
ensued:
JUROR No. 11: What I said was that I couldn't
sleep last night and that I needed some - - I
needed to have a better understanding of
certain things and that I went on the internet
and I looked up two articles and a paper. And
– that I read them. And that I printed them
out – I didn't feel like I was violating my
oath as a juror because I wasn't looking up
the case but I read – you know, I felt like I
had a better understanding of what my
questions were. But I felt like I needed to
share that because – but I didn't share what
I read or what I took it from.
The court: First off, did you show any of the
other jurors any of the written materials?
19 A-1143-15T1
JUROR No. 11: No. I told them what – I said
what the names of the articles were.
THE COURT: Okay.
JUROR No. 11: That's what I said. I just said
like this article from this paper.
THE COURT: So did you – I mean did you tell
them it was about articles about eyewitness
identification?
JUROR No. 11: Yes.
THE COURT: And exonerations.
JUROR No. 11: I said I had a question on
eyewitness – eyewitness identification and I
also had questions on when things got
overturned due to erroneous eyewitness
identification. And I had questions on what
could or could not be shared during an
investigation by the press in the State of New
Jersey and Pennsylvania.
THE COURT: All right . . . was everybody
within earshot when you were talking about
this?
JUROR No. 11: Yes. I came in this morning and
said I couldn't sleep last night. I had
questions, you know, and this is what I -- I
looked up and I said the names of the articles.
I said, you know, I feel like I need to tell
you that I did this. I said I think I need
to let you guys know that I did this. And I
did – I said I'm not going to say what I read
--
THE COURT: So did you disclose to any of the
other jurors the content of what you read?
JUROR No. 11: No, not what I read – I told
them the article's name but not that according
to this article this is this or that is that,
20 A-1143-15T1
no. And I said, you know, I think this needs
to get shared and if, you know, if it's okay
to be shared then I think it's up to everybody
else if they want to look at it or not.
. . . .
THE COURT: Did anybody say anything in
response to the particular subjects that you
were mentioning?
JUROR No. 11: No.
[(Emphasis added).]
The court then discharged Juror Number 11, and called each juror
individually to ask what Juror Number 11 said to them about her
research, and to determine if they could remain impartial in their
deliberations.
Pursuant to Rule 1:8-2(d)(1), which authorizes a judge to
discharge any juror "because of illness or other inability to
continue," the judge also discharged Juror Number 5, who was
approximately seven months pregnant. Juror Number 5 explained
that the stress from the deliberation process was too much for her
to handle; she stated: "[M]y head was splitting and I was very
anxious, I couldn't stop thinking about it. I woke up in the
middle of the night, I was thinking, I couldn't go back to sleep.
I'm a usually calm person and I couldn't even sleep." The judge
selected two alternate jurors to replace Jurors Number 5 and 11.
21 A-1143-15T1
The judge instructed the jury to begin deliberations as a new
jury.
After deliberating for two days, the newly constituted jury
sent a note that stated: "We are currently a hung jury and have
not been able to reach a unanimous decision after days of
deliberation. Where do we go from here?" Before the judge had
an opportunity to respond, the jury sent another note, that stated:
"We're trying a new strategy to reconsider our decision." Shortly
thereafter, the jury sent another note that stated: "Juror 14
feels that juror 7 has preconceived notions on the case. She said
she knew the area and specific details on it. Also, she recalls
reading the paper."
After conferring with counsel, the judge sent for Juror Number
14 and asked: "[H]ow is it that you are saying here that she said
she knew the area and specific details on it?" Juror Number 14
explained:
[W]e were looking at a piece of evidence and
[Juror Number 7] made reference and said
there's a gas station here, there's Mount
Ephraim here, speaking of a street, counting
how many houses it was to a certain person.
Just there's a lot of things that to me didn't
make sense. Like, obviously she said she's
from Camden so she knew the area, but to me
she knew specific streets and like things
right next to the bakery. That to me was like
if you know this you probably know the bakery
is here. And also a couple of days ago she
was speaking about how she most likely read
22 A-1143-15T1
the article about the incident . . . so she
had prior knowledge to the incident.
The court then called Juror Number 7, who explained that her
knowledge of the area was based on
what was given to us, the big board, and my
knowledge, which when we came up and asked the
questions, I'm from the city, I'm familiar.
So from looking on the board with the streets,
something would indicate that it was a light.
And I indicated what street the light was on.
That was it, from my knowledge of the city and
on the board from the street.
With respect to the article, Juror Number 7 explained that she
might have read a newspaper article when the murder happened
because she is from the same city, but it happened so long ago
that she does not remember.
The judge again spoke with each juror individually to
determine if Juror Number 14's note would affect their ability to
be a fair and impartial juror. The following colloquy then
occurred between the judge and Juror Number 7:
THE COURT: Do you have any preconceived
notions about the case?
JUROR No. 7: I do not.
THE COURT: Okay. Does the fact that
apparently at least as of this morning
somebody else on the jury thought you did,
would that impact your ability to continue to
be fair and impartial as a juror?
JUROR No. 7: No.
23 A-1143-15T1
THE COURT: Would it impact your ability to
interact with that juror or any of the other
jurors as part of your deliberations?
JUROR No. 7: Not at all.
After questioning each juror, the judge brought Juror Number
14 back into the courtroom and asked him whether he could continue
to interact and deliberate with Juror Number 7 and the other jurors
effectively as part of his deliberations. Juror Number 14
responded: "I'm just – I don't know. It's tough." The judge
decided to bring each juror back to the courtroom and addressed
the jury as a whole with a Czachor5 charge:
I've concluded that there's nothing, no
information to indicate that outside
information has been improperly interjected
into this case . . . each of you must decide
the case for yourself but do so only after an
impartial consideration of evidence with your
fellow jurors . . . do not hesitate to
reexamine your own views and change your
opinion if convinced it is erroneous but do
not surrender your honest conviction as to the
weight or the effect of evidence solely
because of the opinion of your fellow jurors
or for the mere purpose of returning a
verdict.
After a lunch break, the court again called Juror Number 14
into the courtroom and asked him whether, based on the instructions
the court gave before lunch, he could continue to deliberate with
the other jurors. Juror Number 14 responded: "I think my head
5
State v. Czachor, 82 N.J. 392 (1980).
24 A-1143-15T1
would be clear, I'll be alright to deliberate." The jury returned
a unanimous verdict later that same day, finding defendant guilty
on all charges described in the verdict sheet, except for
conspiracy to commit murder. The court polled the jury as
requested by counsel; each juror affirmed their position in open
court.
A day later, Juror Number 7 emailed the Camden Jury mailbox
requesting to send a note to the trial judge. Several days later,
the trial judge received the following letter from Juror Number
7:
This note is to inform you that I feel I was
pressured to vote guilty. I left the court
Tuesday night not knowing what happened. I
was hit with [the] accusation because I was
from the city in which the crime took place
and may have heard about the crime [five
years] ago that I was unfit to serve, although
I wasn't the only one with doubt . . . [A] lot
went on during deliberation, but Tuesday was
heated. At one point I had to walk out [of]
the room, and another moment I had to address
[J]uror 9['s] use of profanity. I asked that
we have a moment of silen[ce] several times,
to cool things down. I went to the bathroom
and came out to find they continued
deliberating and came up with guilty for
Murder bartering not guilty for murder to get
guilty for another. I was in shock in the
courtroom hearing all the guilty. I didn't
remember agreeing to all that, when I was on
the fence the whole time giving in at the last
hour under unbelievable accusations and
pressure . . . I felt like I was on trial, I
was the only one asked if I knew the defendants
although I wasn't the only one having a hard
25 A-1143-15T1
time placing them there. (Now I know how it
feels to be innocent in a room of people [who]
feel you are guilty)[.] . . . . I felt myself
defending myself although I was innocent
. . . It wasn't right. I was on a [trial]
sometime ago, and it was nothing like this. I
was confident with my decision walking in on
11/18/14, and it changed an hour before it was
all over. I would like to ask if any erased
not guilty was on the paper, although I
recalled some blanks that we [were] suppose[d]
to go over. We started the paper work [the]
day prior, and never went back over [it].
II
Defendant now appeals raising the following arguments.
POINT I
THE COURT ERRED IN ADMITTING VICTIM-WITNESS
OUT-OF-COURT IDENTIFICATION THAT OCCURRED AT
THE DEFENDANT'S ARRAIGNMENT, AN IMPERMISSIBLY
SUGGESTIVE SETTING, WITHOUT PROPERLY WEIGHING
THE RELEVANT SYSTEM AND ESTIMATOR VARIABLES
TO SUPPORT ITS RELIABILITY FINDING.
POINT II
THE VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION IN
FAILING TO FOLLOW THE RULE OF LAW TO DISCHARGE
TWO DELIBERATING JURORS. R. 1:8-2(d)(1). (Not
Raised Below)
POINT IV
THE COURT ERRED IN DENYING THE DEFENDANT'S NEW
TRIAL MOTION WHERE THE VERDICT WAS REACHED BY
COERCION AND INTIMIDATION.
26 A-1143-15T1
POINT V
THE AGGREGATE SENTENCES OF 124 YEARS WITH 101
YEARS 1 MONTH AND 24 DAYS OF PAROLE
INELIGIBILITY IS MANIFESTLY EXCESSIVE.
We begin our analysis with defendant's argument attacking the
admissibility of Ramos-Morales's out-of-court identification.
This is the central, dispositive issue in this case. The "standard
of review on a motion to bar an out-of-court-identification . . .
is no different from . . . [an appellate court's] review of a
trial court's findings in any non-jury case." State v. Wright, 444
N.J. Super. 347, 356 (App. Div. 2016) (citing State v. Johnson,
42 N.J. 146, 161 (1964)). "The aim of the review at the outset
is . . . to determine whether the findings made could reasonably
have been reached on sufficient credible evidence present in the
record." Ibid. (citing Johnson, 42 N.J. at 162).
"Appellate review of a motion judge's factual findings in a
suppression hearing is highly deferential. [Courts] are obliged
to uphold the motion judge's factual findings so long as sufficient
credible evidence in the record supports those findings." State
v. Gonzales, 227 N.J. 77, 101 (2016) (citations omitted). The
factual findings of the trial court are accorded deference because
an appellate court's "reading of a cold record is a pale substitute
for a trial judge's assessment of the credibility of a witness he
27 A-1143-15T1
has observed firsthand." State v. Nash, 212 N.J. 518, 540 (2013).
A "trial court's findings at the hearing on the [reliability and]
admissibility of identification evidence are 'entitled to very
considerable weight.'" State v. Adams, 194 N.J. 186, 203 (2008)
(quoting State v. Farrow, 61 N.J. 434, 451 (1972)).
However, appellate courts "are not required to accept
findings that are 'clearly mistaken' based on [an] independent
review of the record." State v. Watts, 223 N.J. 503, 516 (2015).
Further, a reviewing court "need not defer 'to a trial . . .
court's interpretation of the law' because '[l]egal issues are
reviewed de novo.'" Ibid. (alteration in original) (quoting State
v. Vargas, 213 N.J. 301, 327 (2013)). In deciding the
admissibility of Ramos-Morales's out-of-court identification of
defendant, the trial court determined that the Supreme Court's
seminal decision in State v. Henderson, 208 N.J. 208 (2011)
applied, rather than the Manson/Madison6 test New Jersey courts
had previously relied on.
On August 24, 2011, the Court in Henderson adopted a "revised
framework" to be used in evaluating the admissibility of eyewitness
identification evidence. Henderson, 208 N.J. at 288. Writing
for the Court, Chief Justice Rabner made clear that the ruling
6
Manson v. Brathwaite, 232 U.S. 98 (1977); State v. Madison, 109
N.J. 223 (1988).
28 A-1143-15T1
would only apply to "future cases," and would take effect thirty
days after the Court approved new model jury charges on eyewitness
identification. Id. at 302. In State v. Micelli, the Court
examined an out-of-court identification that occurred before
August 2011, and held that "the [Manson/Madison] standard applies
. . . because the out-of-court identifications were completed
prior to our August 24, 2011 decision in State v. Henderson
. . . ." State v. Micelli, 215 N.J. 284, 287 (2013).
The out-of-court identification at issue in the present case
occurred in October 2009. Accordingly, because defendant's
identification predated Henderson, this court must apply the two
factors articulated by the United States Supreme Court in Manson,
432 U.S. at 114, and adopted by the New Jersey Supreme Court in
Madison, 109 N.J. at 232-33.
The two-step Manson/Madison test is applied when determining
the admissibility of eyewitness identification and examines
suggestiveness and reliability:
a court must first decide whether the
procedure in question was in fact
impermissibly suggestive. If the court does
find the procedure impermissibly suggestive,
it must then decide whether the objectionable
procedure resulted in a "very substantial
likelihood of irreparable misidentification."
In carrying out the second part of the
analysis, the court will focus on the
reliability of the identification. If the
court finds that the identification is
29 A-1143-15T1
reliable despite the impermissibly suggestive
nature of the procedure, the identification
may be admitted into evidence.
[Madison, 109 N.J. at 232 (citations
omitted).]
As for the first step:
Impermissive suggestibility is to be
determined by the totality of the
circumstances of the identification. It is
to be stressed that the determination can only
be reached so as to require the exclusion of
the evidence where all the circumstances lead
forcefully to the conclusion that the
identification was not actually that of the
eyewitness, but was imposed upon him so that
a substantial likelihood of irreparable
misidentification can be said to exist.
[Madison, 109 N.J. at 234 (citation omitted).]
In considering the second step, the court must consider
whether the procedure created a "very substantial likelihood of
irreparable misidentification." Madison, 109 N.J. at 232 (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)). "If the
court finds that the identification is reliable despite the
impermissibly suggestive nature of the procedure, the
identification may be admitted into evidence." Ibid. "Reliability
is the linchpin in determining the admissibility of identification
testimony[.]" Micelli, 215 N.J. at 292 (quoting Manson, 432 U.S.
at 114). "To assess the reliability of an identification," a
court must consider "'[t]he opportunity of the witness to view the
30 A-1143-15T1
criminal at the time of the crime, the witness' degree of
attention, the accuracy of his prior description of the criminal,
the level of certainty demonstrated at the confrontation, and the
time between the crime and the confrontation.'" Ibid. (citations
omitted).
"Procedurally, a defendant must first 'proffer . . . some
evidence of impermissible suggestiveness' to be entitled to
a Wade hearing." Henderson, 208 N.J. at 238 (quoting State v.
Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993)). If, at
the Wade hearing, the "court decides the procedure 'was in fact
impermissibly suggestive,' it then considers the reliability
factors." Ibid. (citing Madison, 109 N.J. at 232). The State
then "has the burden of proving by clear and convincing evidence
that the identification[ ] . . . had a source independent of the
police-conducted identification procedures." Id. at 238-39
(alteration in original) (citing Madison, 109 N.J. at 245).
"Overall, the reliability determination is to be made from the
totality of the circumstances." Id. at 239 (citing Madison, 109
N.J. at 233).
The State argues that Ramos-Morales's out-of-court
identification of defendant was an unplanned and spontaneous
identification, and that she was not brought to defendant's
arraignment for the purpose of identifying defendant. In contrast,
31 A-1143-15T1
defendant argues that Ramos-Morales was purposefully brought to
the arraignment and instructed to observe the two defendants to
see if she recognized them.
After conducting a Wade hearing, the trial court allowed
Ramos-Morales to testify as to her out-of-court identification of
defendant. In doing so, the trial court, though analyzing its
decision under Henderson, relied on State v. Mance, 300 N.J. Super.
37, 58-59 (App. Div. 1997) and U.S. v. Jackson, 448 F.2d 963, 967-
68 (9th Cir. 1971). In Mance, seven prison inmates were indicted
as a result of offenses committed during a prison riot. Mance,
300 N.J. Super. at 43. During the riot, a victim-witness was
attacked and stabbed repeatedly by three defendants, including
defendant Mance. Id. at 46. The victim was initially unable to
identify the defendants from a photo-array, but told the
investigators that he believed he could identify his attackers if
he saw them in person. Id. at 57. During the trial, the victim
was sitting outside the courtroom waiting to testify when the
seven defendants, on their way to their lunch break, walked by him
in shackles. Ibid. At that point, the victim identified Mance
as one of the defendants who attacked him. Ibid. At the Wade
hearing, the investigator explained
that he had arranged for [the victim] to be
outside the courtroom that morning because he
expected him to begin testifying before the
32 A-1143-15T1
lunch break. He had no idea that the
defendants would be coming through the hallway
when they did. Nor did he conceive that [the
victim] would see them in the hallway.
[Id. at 58.]
The trial court determined the identification was admissible,
because "the exposure of the defendants to [the victim] was
inadvertent." Ibid. The court also determined "that no one had
done or said anything to influence [the victim's] identifications"
and that the identification was reliable. Mance, 300 N.J. Super.
at 58. On appeal, we affirmed the trial judge's determination
that the defendant failed to sustain his burden of proving that
this procedure was so suggestive as to result in a substantial
likelihood of misidentification, stating:
[T]he encounter in the courtroom corridor was
inadvertent . . . [and] such accidental
courthouse encounters [are not] unduly
suggestive per se. Here[,] seven shackled
defendants passed by the witness. Although he
obviously knew they were the defendants in
this case, there was nothing to indicate which
of them were the men who attacked him.
Therefore, there was no suggestibility with
regard to his specific identifications of two
of the seven as his attackers.
[Id. at 58-59 (citations omitted).]
In Jackson, several victim witnesses were attending a
suppression hearing. Jackson, 448 F.2d. at 965. At the scheduled
start time of the hearing, while the attorney for defendants was
33 A-1143-15T1
in a conference with the judge, the three defendants were brought
into the courtroom. Ibid. The victim witnesses observed the
defendants at that time. Ibid. When the victim witnesses were
called to testify, each identified some, but not all of the
defendants, however, each defendant was identified by at least one
witness. Ibid. One witness requested all the defendants stand
up while she made her identification. Ibid. At the suppression
hearing, each testified that their identifications were "based
upon their observations at the time of the robbery, and they were
not assisted by the [court-room observations]." Id. at 965-66.
Defense counsel then moved to suppress the in-court
identifications, arguing that the in-court observation of
defendants "tainted the witnesses' ability to make reliable in-
court identification[s]." Jackson, 448 F.2d. at 966. The motion
was denied, and the witnesses were later permitted to make in-
court identifications of the defendants at trial. Ibid.
On appeal, the Ninth Circuit held that the circumstances of
the in-court observation of the defendants and the later in-court
identifications were not so "impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable
misidentification," because:
considering the totality of the circumstances,
defendants were not deprived of due process
under the Fifth Amendment . . . The
34 A-1143-15T1
circumstances which persuade us are: (1) the
[in-court observation] was not planned by
prosecuting or enforcement officials, but was
inadvertent; (2) no officials indicated to the
witnesses that the men led into the courtroom
were the defendants in the bank robbery case,
or even connected with the case in any way;
(3) the assumption made by some of the
witnesses that these were in fact the
defendants appears to have stemmed as much
from the witnesses' spontaneous recognition of
the men based upon their observations at the
time of the robbery, as from the fact that the
men were seated at the counsel table; (4) all
of the eyewitnesses who participated in the
confrontation and later testified at the
suppression hearing and the trial, testified
that the confrontation did not assist them in
making their in-court identifications; (5)
there was substantial evidence, other than
from these eyewitnesses, connecting the three
defendants with the robbery; and (6) the
inadvertent confrontation prior to the
suppression hearing was less suggestive than
the "stand up" procedure followed, in the
presence of counsel and without objection, at
the suppression hearing and the subsequent
trial.
[Id. at 966-67.]
The court, in reaching that conclusion, explained that it
"did not intend to intimate that we will, in other and more
aggravated circumstances, condone the use by prosecuting attorneys
of pre[-]testimony courtroom confrontations to 'firm up' the
uncertain memories of potential witnesses." Id. at 967.
Defendant cites State v. Burden, 155 N.J. Super. 462 (App.
Div. 1977) to support his argument that an identification at an
35 A-1143-15T1
arraignment is per se illegal. In Burden, the defendant was
convicted of robbing a loan office. Id. at 463. One of the
witnesses was "requested by the police to attend an arraignment
of defendant . . . [and] after viewing a few other individuals
being arraigned, he indicated to the police that defendant looked
like the robber." Id. at 464. On appeal, this court explained
that:
The entire atmosphere of an arraignment is
suggestive of possible guilt of the suspect
and in this case could well have influenced
[the witness] in making his identification of
defendant on that occasion. Ordinarily such
illegality in the circumstances of an out-of-
court identification would require a remand
to determine whether the in-court
identification by the witness was based on
observations of the suspect independent of
those at the illegal identification at the
arraignment.
[Id. at 465 (citing Wade, 388 U.S. at 240).]
However, this court determined that admitting the out-of-court
identification, based on the totality of the evidence against
defendant in the record, was harmless error. Id. at 466.
The Third Circuit, which encompasses New Jersey, has decided
a case similar to the facts raised in this appeal. In United
States v. Emanuele, 51 F.3d 1123, 1126 (3d Cir. 1995), the
defendant was convicted of robbing two banks. Five weeks after
the robbery, the teller at the first bank selected defendant's
36 A-1143-15T1
photo out of a photo array, but "wasn't one hundred percent sure
of her choice." Ibid. A few weeks later, she was shown a second
photo array, and selected someone other than the defendant. Ibid.
The teller from the second bank was similarly unable to identify
the defendant from a photo array, and the fingerprints taken from
both robberies did not match defendant's fingerprints. Id. at
1126-27.
Both tellers were called to testify at the defendant's trial,
and after they met with representatives from the United States
Attorney's Office, they were instructed to sit outside the
courtroom. Id. at 1127. While they were waiting to testify, they
saw the defendant being led from the courtroom by U.S. Marshals
in handcuffs. Ibid. At that time, "outside the courtroom the two
tellers talked to each other about defendant, telling each other
'it has to be him.'" Emanuele, 51 F.3d at 1127. Both tellers
later made in-court identifications of defendant as the robber.
Ibid.
On appeal to the Third Circuit, the court first determined
that the witnesses' observation of the defendant was unnecessarily
suggestive, concluding that "the confrontation was caused by the
government, albeit inadvertently, and that to walk a defendant --
in shackles and with a U.S. Marshal at each side -- before the key
identification witnesses is impermissibly suggestive." Id. at
37 A-1143-15T1
1130. In determining whether the identifications were reliable,
the court found the teller who had initially identified the
defendant in the photo array's identification reliable, but the
teller who did not identify defendant prior to observing him at
the courthouse identification as unreliable. Id. at 1131. The
court explained:
[W]e face a situation in which the one eye-
witness who would be able to identify the
. . . robber and place defendant at the scene
of the crime, could not, despite
her opportunity to observe, recognize him in
a photo array. That failure, coupled with the
highly suggestive viewing of the defendant in
conditions reeking of criminality, bolstered
by the comments of another witness, render the
in-court identification unreliable. The
reaction "it has to be him" greatly diminishes
the reliability of [her] identification and
renders manifest the impact of her viewing
defendant. In effect, the viewing
communicated to the witness that the defendant
was the robber, and there was no reliable
evidence that she would have so concluded or
testified absent that viewing.
Under such suspect circumstances, there
clearly was a substantial risk of
misidentification.
[Id. at 1131.]
Here, applying the Manson/Madison test, Ramos-Morales's out-
of-court identification of defendant was impermissibly suggestive
and resulted in a very substantial likelihood of irreparable
misidentification. Ramos-Morales was brought to the arraignment
38 A-1143-15T1
by members of the CCPO. She had been told by Saunders that two
men had been arrested in connection with the robbery of the bakery
and murder of her husband, and that the police were still looking
for the third suspect.
Saunders testified that the CCPO did not ever use an
arraignment as an attempted identification procedure, because it
was not the CCPO's practice to do so. Saunders also testified
that prior to the proceeding, he did not say anything to Ramos-
Morales about her possibly identifying the defendants at the
arraignment. However, at the Wade hearing, Ramos-Morales
testified that she was told that to recognize defendants, it was
necessary for her to attend the arraignment. She explained that
she did not know if she would see the people who had been arrested
at the arraignment, and Saunders had told her that "the people may
be there or they may not be there."
Ramos-Morales, as a victim and witness of the robbery
herself, had a right to attend the arraignment. N.J.S.A. 52:4B-
36(p). However, her right to attend the arraignment has no bearing
on the admissibility of her out-of-court identification of
defendant that she made at that hearing. Ramos-Morales made her
out-of-court identification of defendant at his arraignment, where
the probable cause statement and criminal charges against
defendant, naming him a suspect in the robbery and murder of her
39 A-1143-15T1
husband, were presented and read in open court. Specifically, the
probable cause statement stated, "information had been received
from a witness who . . . knew [defendant], [and] that he was the
one that was in the video that had the gun and shot the victim[.]"
Here, defendant attended his arraignment dressed in an orange
jail jumpsuit, in handcuffs and in shackles. Also present at the
arraignment was defendant's co-defendant, the individual who did
not wear a mask when committing the robbery. At this time, though
Ramos-Morales may not have understood exactly what was being said
at the arraignment because the proceedings were not being
translated, she was aware that the individual who was sitting in
front of her, being presented before the judge in a criminal
proceeding, was accused of participating in the robbery and
shooting of her husband. Saunders explained that "[i]t was not a
secret that he was a defendant that shot her husband because of
the statements that we had received so – but I didn't tell her,
you know, he shot your husband."
The trial court erred in analogizing Ramos-Morales's out-of-
court identification to the out-of-court identifications in Mance
and Jackson. In Mance, the identification was deemed admissible
by the trial court because it was inadvertent, and because no one
had done or said anything that would influence the victim's
identification of the defendant. Mance, 300 N.J. Super. at 58-
40 A-1143-15T1
59. Similarly, in Jackson, the court deemed the out-of-court
identifications admissible because the identification was
inadvertent and not planned by any officials, no one indicated to
the witnesses that the inmates in the courtroom were the defendants
in the case, the witnesses testified that their observations of
the defendants did not assist them in making their in-court
identifications, and there was other substantial evidence in the
record that connected the defendants to the robbery. Jackson, 448
F.2d at 966-67.
Here, while Ramos-Morales's identification of defendant may
have been inadvertent, it still occurred in a setting which was
impermissibly suggestive of defendant's probable guilt. Unlike
the identifications in Mance and Jackson, the arraignment alone
was enough to influence Ramos-Morales's identification of
defendant. The present case is more in line with Burden, where
the defendant was actually identified at an arraignment. Burden,
155 N.J. Super. at 464. There, this court noted that the entire
atmosphere of an arraignment suggests the possible guilt of the
defendant, which can influence the witness if they make an
identification of the defendant at the arraignment. Id. at 465.
At defendant's arraignment, he was charged criminally with
participating in the robbery and with the murder of Ramos-Morales's
husband. Additionally, like in Emanuele, the defendant was
41 A-1143-15T1
identified by the key identification witness (Ramos-Morales) while
he was wearing an orange jail jumpsuit and shackles. Though it
is unclear how much of the charges Ramos-Morales understood, she
was likely aware that defendant was being accused by the State of
participating in the robbery of her bakery and murder of her
husband. Moreover, the very nature of a criminal arraignment
proceeding, where criminal charges are read in open court, and the
fact that defendant was restrained in shackles and wearing clothes
identifying him as a criminal defendant, is impermissibly
suggestive of defendant's possible guilt.
Further, Saunders had informed Ramos-Morales that two
individuals had been arrested, and that the people who committed
the robbery and murder may or may not be at the arraignment.
Unlike Mance and Jackson, Saunders clearly communicated to Ramos-
Morales that the defendants accused of the robbery and murder
would be at the arraignment, and it was clear that the inmates in
the courtroom were likely the defendants in the case. There would
be no other reason for Ramos-Morales to attend the criminal
arraignment of defendant but for some communication from the CCPO
that the defendants at the arraignment were the defendants who
were accused of the robbery and murder in which she was a victim
and witness.
42 A-1143-15T1
Finally, it is unclear whether or not the out-of-court
identification was actually planned by law enforcement. Ramos-
Morales contradicted Saunders's testimony at the Wade hearing that
he never asked her to possibly identify any defendant at the
arraignment, because she testified that she was told it was
necessary for her to attend the arraignment so that she could
possibly recognize the defendants. Accordingly, Ramos-Morales's
out-of-court identification of defendant occurred in an
impermissibly suggestive setting.
Having determined that Ramos-Morales's out-of-court
identification of defendant was in an impermissibly suggestive
setting, the next step is to determine if the procedure used in
identifying defendant resulted in a "very substantial likelihood
of irreparable misidentification." In doing so, this court must
evaluate the reliability of the identification. Courts may
consider the opportunity of the witness to view the criminal at
the time of the crime, a witness' degree of attention, the accuracy
of the witness's prior description of the criminal, the level of
certainty demonstrated, and the time between the crime and the
confrontation. Micelli, 215 N.J. at 292.
In regards to Ramos-Morales's opportunity to view defendant
at the time of the crime and her degree of attention, she testified
that the assailant who murdered her husband was wearing all black,
43 A-1143-15T1
in a sweatshirt with the hood on, and wearing a mask that
completely covered his entire face so that she could only see his
eyes. While the robbery occurred, Ramos-Morales stood in the
corner of the bakery, behind the cabinets, pressing the panic
button. She testified that after defendant shot her husband, and
while he was bringing the bakery patrons into the kitchen, she
observed his movements. She focused only on his head, and his
eyes, and that he was a "little bit heavier than the other two
guys." She was able to see his "manner of walking." She testified
that defendant noticed her only after someone shouted that the
police were on their way, and it was then that he pointed the gun
at her and motioned that she should follow him into the kitchen.
Regarding the accuracy of Ramos-Morales's description of
the person who shot her husband, she initially told detectives
that the person who shot her husband was tall, but that she could
not see the shooter's face. The time between the commission of
the crime and the identification of defendant at his arraignment
was about two weeks. Additionally, Ramos-Morales displayed a high
level of certainty in her identification of defendant, explaining
at the Wade hearing she was able to identify defendant because "he
was a little fat. The eyes were square . . . You could see that
he was – he was evil, he was bad. The way he walked . . . his
features." At trial, she testified that "he had the face of a
44 A-1143-15T1
mean person . . . I thought he was the one that had shot at my
husband because I observed the eyes of both of them and their
head. And when I was observing that person I became scared." She
reiterated that she was able to identify defendant because of "the
features of his head and his eyes."
Based on the totality of the circumstances of the out-of-
court identification, Ramos-Morales's identification is not
reliable, and lead to very substantial likelihood of irreparable
misidentification. First, the identification took place in a
setting that impermissibly suggested that defendant was guilty.
Also present at the identification was the unmasked individual who
robbed the bakery. It is likely that Ramos-Morales recognized
this individual as one of the men who robbed the bakery, and only
identified defendant by association. Second, after the robbery
and shooting, Ramos-Morales described no personal characteristics
of the shooter, and instead described only a tall person whose
face was covered with a mask and a hood, and who wore all black.
However, at the Wade hearing, Ramos-Morales testified that she was
able to recognize defendant because he had the "face of a mean
person." This is unlikely, because during the robbery and
shooting, the gunman's face was completely covered except for his
eyes, and Ramos-Morales was never able to see his face.
45 A-1143-15T1
Ramos-Morales further testified that she was able to identify
him based on the "features of his head," his eyes, and his "manner
of walking." However, it is unlikely that Ramos-Morales was able
to identify any features of the shooter's head as his face was
completely covered with a mask and his head was covered with the
hood of his sweatshirt. Witnesses were unable to see defendant's
nose, mouth, or hair. Further, it is unlikely that Ramos-Morales
was able to recognize defendant based on his eyes, because, during
the course of the crime, which took about four minutes, Ramos-
Morales was only able to briefly observe the masked gunman when
he was escorting the bakery patrons to the kitchen, when he
attempted to open the cash register, and when he escorted her to
the kitchen. During this time, the masked shooter was constantly
moving and at times not facing Ramos-Morales, so it not likely
that she had the opportunity to view the individual's eyes without
any obstructions. Additionally, regarding defendant's "manner of
walking," she observed defendant walk into the arraignment while
he was handcuffed and shackled. It is unlikely that her
observation that day of his encumbered walking would be the same
or similar to the manner of walking of the individual who shot her
husband.
No other victims or witnesses identified defendant as the
gunman. Ramos-Morales based her out-of-court identification
46 A-1143-15T1
solely on the gunman's eyes, features of his head, and manner of
walking. As demonstrated above, it is unlikely that Ramos-Morales
would be able to identify defendant based on these characteristics
alone. Instead, it is very likely that her identification was not
based on her observations of the gunman during the commission of
the crime, but instead based on the fact that defendant was
appearing in an arraignment to be criminally charged with the
robbery and the murder of her husband. Here, the procedure where
the out-of-court identification was made was impermissibly
suggestive, and resulted in very substantial likelihood of
irreparable misidentification. As a result, the trial court erred
in admitting Ramos-Morales's out-of-court identification of
defendant.
The State argues that, if this court finds that the trial
court erred in admitting the identification, the error was
harmless, based on the "overwhelming evidence of defendant's
guilt." We are not persuaded by this argument. It is far from
certain whether, without Ramos-Morales's identification of
defendant, there is any "overwhelming evidence of defendant's
guilt." Her testimony was the only direct evidence of defendant's
guilt.
Ramos-Morales’s identification of defendant played an
integral role in the State’s case. In the absence of the
47 A-1143-15T1
identification, the State’s remaining evidence was Streater’s
putatively unreliable testimony and defendant’s “consciousness of
guilt” in hiding from the police on the date of his arrest. Under
these circumstances, we are compelled to reverse defendant's
conviction and remand this matter for a new trial. Based on this
conclusion, we do not reach defendant's remaining arguments.
Reversed and remanded.
48 A-1143-15T1