NOT FOR PUBLICATION WITHOUT THE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-4922-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONNELL S. PERRY,
Defendant-Appellant.
______________________________
Submitted July 3, 2018 – Decided August 13, 2018
Before Judges O'Connor and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
16-02-0138.
Joseph E. Krakora, Public Defender, attorney
for appellant (Cody T. Mason, Assistant Deputy
Public Defender, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Olivia M. Mills,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Donnell S. Perry appeals his conviction for second-
degree robbery as an accomplice, N.J.S.A. 2C:15-1(a)(1) and 2C:2-
6(a) (count one, amended from a first-degree robbery), contending:
POINT I
THE MOTION TO SUPPRESS IDENTIFICATIONS SHOULD
HAVE BEEN GRANTED BECAUSE THE INCLUSION OF
DEFENDANT'S PICTURE IN TWO ARRAYS WHERE HE WAS
THE ONLY PERSON WITH A FACE MARK OR TATTOO,
COUPLED WITH OTHER FACTORS, CREATED AN
IRREPARABLE RISK OF MISTAKEN IDENTIFICATION.
A. THE IDENTIFICATION PROCEDURE WAS
IMPERMISSIBLY SUGGESTIVE BECAUSE THE WITNESS
WAS SHOWN TWO ARRAYS IN WHICH DEFENDANT WAS
THE ONLY PERSON WITH VISIBLE FACE MARKINGS OR
TATTOOS.
B. THE SUGGESTIVENESS OF THE
IDENTIFICATION COULD NOT BE CURED BY THE
WITNESS'S LIMITED AND VAGUE PRIOR INTERACTIONS
WITH THE SUSPECT, PARTICULARLY GIVEN THE
CROSS-RACIAL NATURE OF THE IDENTIFICATION AND
THE WITNESS'S DRUG USE.
POINT II
THE MATTER SHOULD BE REMANDED FOR RESENTENCING
BECAUSE THE COURT DID NOT ADEQUATELY EXPLAIN
ITS FINDINGS OF AGGRAVATING FACTORS THREE AND
NINE, AND DID NOT HOLD A HEARING REGARDING THE
IMPOSITION OF RESTITUTION.
A. A REMAND FOR RESENTENCING IS
REQUIRED BECAUSE THE COURT DID NOT EXPLAIN ITS
FINDINGS OF AGGRAVATING FACTORS THREE AND
NINE.
B. A REMAND IS REQUIRED BECAUSE THE
COURT IMPOSED $300 IN RESTITUTION WITHOUT
HOLDING A HEARING TO DETERMINE THE EXTENT OF
2 A-4922-16T3
DAMAGES OR DEFENDANT'S ABILITY TO PAY
RESTITUTION.
We agree defendant's motion to suppress the identification of his
photograph – the only one showing facial tattoos – should have
been granted, and reverse.
Following a Wade1 hearing the trial court judge admitted Eric
Hewitt's identification of defendant from a photo array – conceded
by the State to have been suggestive because defendant's was the
only photograph in which facial tattoos were depicted — finding
it "reliable." The judge credited the testimony of both Hewitt
and the detective who compiled the array, and determined Hewitt's
prior encounters with defendant on five to eight occasions over a
three to four week period – during which defendant drove in
Hewitt's car and once played cards with Hewitt – provided
"sufficient knowledge of both the physical characteristics of the
defendant to [enable Hewitt] to identify him in a photo array even
if that photo array [was] somewhat suggestive."
"Our standard of review on a motion to bar an out-of-court-
identification . . . is no different from our 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.
1
United States v. Wade, 388 U.S. 218 (1967).
3 A-4922-16T3
146, 161 (1964)). "We are bound to uphold a trial court's factual
findings in a motion to suppress provided those 'findings are
supported by sufficient credible evidence in the record.'" State
v. Watts, 223 N.J. 503, 516 (2015) (quoting State v. Elders, 192
N.J. 224, 243-44 (2007)). "Those factual findings are entitled
to deference because the motion judge, unlike an appellate court,
has the 'opportunity to hear and see the witnesses and to have the
"feel" of the case, which a reviewing court cannot enjoy.'" State
v. Gonzalez, 227 N.J. 77, 101 (2016) (quoting Johnson, 42 N.J. at
161). 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, we do not defer to a trial court's interpretation of the
law, which is reviewed de novo. State v. Shaw, 213 N.J. 398, 411
(2012).
The judge rejected defendant's contentions that, besides the
suggestive construction of the photo arrays – a system variable2
2
System variables are factors "within the control of the criminal
justice system." State v. Henderson, 208 N.J. 208, 218 (2011).
They are: (1) whether a detective uninvolved in the investigation
— a "blind" administrator — was used; (2) whether pre-
identification instructions were given to the witness; (3) whether
the array was constructed of a sufficient number of fillers that
look like the suspect; (4) whether the witness was given feedback
4 A-4922-16T3
— the estimator variables3 of lighting, physical features and
cross-racial identification rendered the identification
unreliable. Countering defendant's argument about lighting, the
judge found that although some encounters may have taken place
after dark, Hewitt also viewed defendant during daylight hours.
Considering defendant's contention he was identified because his
was the only photograph in which tattoos were depicted, the judge
compared the arrays viewed by Hewitt. The judge noted defendant's
picture in the first array – which Hewitt did not select – "looks
like there is some marking but I can't tell by my view of the
picture whether that's something beyond a tattoo." He found the
photo in the second array was "more definitive insofar as the
either during or after the procedure; (5) whether the witness was
exposed to multiple viewings of the suspect; (6) whether the lineup
was presented sequentially versus simultaneously; (7) whether a
composite sketch was used; (8) whether the procedure was a show-
up where "a single suspect is presented to a witness to make an
identification." Id. at 248-61.
3
"[E]stimator variables are factors beyond the control of the
criminal justice system," id. at 261, and include: (1) the
witness's stress level; (2) whether a visible weapon was used
during the crime; (3) the amount of time the witness viewed the
suspect; (4) the lighting and the witness's distance from the
perpetrator; (5) the witness's age and level of intoxication; (6)
whether the perpetrator wore a disguise or changed physical
features; (7) the amount of time that passed between the crime and
the identification; (8) whether the witness and perpetrator were
of different races; (9) whether the witness was exposed to co-
witness feedback; and (10) the speed with which the witness made
the identification, id. at 261-72.
5 A-4922-16T3
tattoos that are visible on . . . defendant's face." The judge
concluded, "the characteristics are somewhat unique in the sense
that this individual does have facial tattoos which was clearly
in the mind of Mr. Hewitt at the time not only during the time
that he had, quote, befriended him but also at the time that he
was viewing the arrays." In addressing defendant's point that
defendant and Hewitt were of different races, the judge concluded
it was a non-issue because Hewitt "befriended the defendant for a
given period of time for perhaps his own personal reasons but it
does not appear that race plays any factor insofar as the
identification procedure is concerned."
The evidence does not support a finding that the
identification of defendant's photograph was based on anything but
the tattoos, which only the defendant's picture included. See
State v. Henderson, 208 N.J. 208, 251 (2011) (adopting the findings
of the Henderson Special Master, the Court recognized "mistaken
identifications are more likely to occur when the suspect stands
out from other members of a . . . photo lineup").
As the judge found, defendant's tattoos were more visible
in the second-array photograph selected by Hewitt. Hewitt said
he did not select defendant's photograph from the first array
because "[defendant] had hair and [the photograph was taken] before
he had tattoos on him." Indeed, Hewitt said his memory of
6 A-4922-16T3
defendant, formed from his contact with defendant during the weeks
prior to the identification, was that "at the time he was bald and
he had tattoos, he had teardrops and tattoos on his eyelids." 4
Hewitt said that when he was shown the updated photograph of
defendant – which he identified – "he had tattoos, that's when I
noticed." When asked, "When you [identified] the photographs
during the second array, was it important to you that you could
see tattoos on his eyelids," Hewitt answered affirmatively.
Because the second-array photograph depicted defendant with hair,
the only features previously described by Hewitt that matched the
photograph were defendant's tattoos. Notwithstanding Hewitt's
response to the prosecutor's leading question denying that he
selected defendant's photograph "because the guy had tattoos on
his face," Hewitt's only pertinent memory of the perpetrator was
of the tattoos. Tellingly, he based his in-court identification
of defendant during the Wade hearing on his ability to "see the
teardrops right here and his eyelids"; when asked if he was sure,
he asked, "Can he close his eyes?"
We also determine the trial judge improperly applied the race
bias variable which was not dependent on Hewitt's subjective racial
views, but on the research showing that "[c]ross-racial
4
In his previous description of the perpetrator, Hewitt said that
he forgot if he was bald or had "a little bit of hair."
7 A-4922-16T3
recognition continues to be a factor that can affect the
reliability of an identification." Id. at 267.
We do not set aside the judge's findings and conclusions
lightly. The record, however, does not sufficiently support the
reliability of the identification. Had the array included
photographs similar to that of defendant, Hewitt's prior
encounters with defendant may have buttressed the reliability of
his selection. We are constrained, however, to reverse the motion
to suppress the identification as defendant has proved "a
substantial likelihood of irreparable misidentification." Id. at
289.
In light of our decision, we need not address defendant's
sentencing argument.
Reversed and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
8 A-4922-16T3