STATE OF NEW JERSEY VS. WILLIAM C. COOPER, JR. (11-12-2963, 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NOT FOR PUBLICATION WITHOUT THE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-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