STATE OF NEW JERSEY VS. GEORGE M. BALLOUTINE (17-03-0497, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-4894-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE M. BALLOUTINE,

Defendant-Appellant.
___________________________

Submitted September 14, 2020 – Decided October 5, 2020

Before Judges Sabatino and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 17-03-0497.

Joseph E. Krakora, Public Defender, attorney for
appellant (Alyssa Aiello, Assistant Deputy Public
Defender, of counsel and on the brief).

Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel and on the brief; Catherine A. Foddai, Legal
Assistant, on the brief).

PER CURIAM
 Tried by a jury, defendant George M. Balloutine was found guilty of third-

degree distribution of a controlled dangerous substance ("CDS"), specifically

testosterone propionate, N.J.S.A. 2C:35-5(a)(1) and -5(b)(13) (count one); third-

degree possession of testosterone propionate, N.J.S.A. 2C:35-10(a)(1) (count

two); third-degree distribution of another CDS, heroin, N.J.S.A. 2C:35-5(a)(1)

and -5(b)(3) (count 3); and third-degree possession of heroin, N.J.S.A. 2C:35-

10(a)(1) (count four).

The trial court sentenced defendant on count three to an extended term of

seven years with a three-year parole disqualifier, and a concurrent term of four

years on count one. The other counts merged for sentencing purposes.

In this direct appeal, defendant principally challenges the sufficiency of

the identification evidence presented by the State, and the incompleteness of the

charges on identification the court provided to the jury. Defendant also contends

that the trial court prejudicially allowed a testifying detective to convey hearsay

information from others without an opportunity for those declarants to be cross-

examined.

Lastly, the State points out in its brief that duplicative fines and penalties

were imposed on the two merged counts, and that the judgment of conviction

should be amended accordingly.

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 For the reasons that follow, we vacate defendant's convictions and remand

for a new trial because of critical omissions from the jury charge on the pivotal

identification issues in this case.

I.

The State's proofs at trial may be summarized as follows. In essence, the

State's theory of the case was that defendant was a drug dealer who had been

referred to by a confidential informant as a man named "George." The State

further established that an undercover officer from the county prosecutor's office

purchased steroids from a person believed to be "George" on one occasion and

purchased heroin from the same man five days later. Defendant contended that

he had been mistakenly identified as the drug-dealing "George," and presented

three alibi witnesses who testified defendant had been with relatives on the

evening of the second drug sale.

The State's key witness was the undercover detective who had purchased

the steroids and heroin. During his testimony, the detective recounted that on

June 17, 2015, he had "received information" from a confidential informant that

a person named "George" had been illegally selling drugs, and that the seller

lived at a certain address on Clark Street in Garfield. The detective was not

supplied with any additional identifying information at that time.

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 The undercover detective then went with the informant to the Clark Street

address. He told the informant to contact "George" and let him know a drug

purchaser was outside. The informant made that call as requested, in the

detective's presence, and then left the detective's vehicle.

A few minutes later, a man described by the detective in his report as a

"middle-aged" white male with gray and black hair wearing a hat, emerged from

the building and got into the detective's car. According to the detective, he told

the man he wanted to buy steroids from him. The man handed him the steroids

in exchange for $430. Before the man left the car, the detective told him he

wanted to buy more drugs from him in the future.

After this June 17 drug purchase, the undercover detective that same day

went back to the prosecutor's office to try to ascertain the name of the "George"

who had sold him the steroids. He conducted what he termed "an in-house

inquiry," and obtained the names of persons who resided at the Clark Street

residence. The detective was advised by a Garfield police officer that a person

named George Balloutine resided there. The detective entered that name into a

database of driver's licenses, and pulled up a color photograph of George

Balloutine. According to the detective, the license photo appeared to match the

person who had sold him the steroids. As we will discuss, infra, in Part II, the

license photo was not introduced into evidence at trial.

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 The detective then arranged a second meeting to purchase a different drug,

this time heroin. He made the arrangements directly himself by calling a cell

phone number that subsequently proved to belong to defendant. According to

the detective, he and the seller agreed to meet on June 22 outside the same Clark

Street address. This time, the detective was equipped with an audio recorder.

When he arrived for the second meeting, the detective called the cell

phone number again. According to the detective, the same person who he had

bought drugs from on June 17 emerged from the building, again wearing a hat.

The man got into the detective's car. The detective said he wanted to buy a large

quantity of heroin to sell to others.

After discussion, the suspect agreed to obtain a sample of heroin for the

detective. Later that evening on June 22, the detective returned to the Clark

Street residence, from which the same suspect emerged. The suspect got into

the detective's car and gave him, without receiving payment, three packets of

heroin to sample. At that point, the suspect left the car and the detective drove

away.

The detective returned to his office, where he field-tested the substances.

He also downloaded the audio recording of his two meetings with the seller that

day. The detective testified that a voice on the recordings was the same voice

of the man who had given him the drugs. Laboratory tests by the State Police

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confirmed that clear liquid in the vials was testosterone propionate, and the

product in the glassine packets was heroin.

Defendant was subsequently arrested eighteen months later and charged

with the various CDS offenses we have already noted.

At the ensuing trial, the State presented testimony from the undercover

detective, who described his investigation and his interactions with the

informant and the drug seller. The detective identified defendant in the

courtroom as the person who had sold him the steroids two-and-a-half years

earlier on June 17 and the heroin on June 22. The State played the audiotapes

from June 22 for the jury. The State also presented testimony from a lab chemist

verifying the nature of the tested substances. The confidential informant did not

testify.

Defendant did not testify in his own defense. However, he presented alibi

testimony from his brother, his mother, and a friend. With some slight variations

of the exact times, they each corroborated that, on the evening of June 22,

defendant was at his mother's house during the time the State claimed he was on

Clark Street dealing in the heroin.

As noted, the jury convicted defendant on all counts of the indictment. On

appeal, defendant offers the following arguments for our consideration:

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 POINT I

WHERE DEFENDANT MAINTAINED THAT HE
WAS "FALSELY IDENTIFIED" AND PRESENTED
ALIBI WITNESSES, THE TRIAL COURT
COMMITTED PLAIN ERROR BY ALLOWING THE
STATE TO PROVE THAT THE DETECTIVE MADE
AN OUT-OF-COURT IDENTIFICATION OF
DEFENDANT'S PHOTOGRAPH, WITHOUT
PRODUCING THE PHOTOGRAPH IN COURT, AND
THEN GIVING AN IDENTIFICATION CHARGE
THAT PROVIDED NO GUIDANCE ON HOW TO
EVALUATE THE RELIABILITY OF THE OUT-OF-
COURT IDENTIFICATION AND OMMITTED [SIC]
RELEVANT "ESTIMATOR VARIABLES"
CRITICAL TO DETERMINING THE RELIABILITY
OF THE IN-COURT IDENTIFICATION.

POINT II

REVERSAL IS REQUIRED BECAUSE THE
IMPROPER INTRODUCTION OF INADMISSIBLE
AND HIGHLY PREJUDICIAL HEARSAY
VIOLATED DEFENDANT'S RIGHT TO
CONFRONTATION AND HAD THE CLEAR
CAPACITY TO LEAD THE JURY TO A RESULT IT
OTHERWISE WOULD NOT HAVE REACHED.

II.

A.

Defendant argues the trial court erred by allowing the detective to testify

about his out-of-court identification without producing the photograph upon

which identification was based. In addition, defendant argues the trial court

erred by not giving the combined model "out-of-court and in-court"

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identification charge, which includes additional factors for the jury to consider

when assessing such identifications.

In approaching these related issues, we are guided by our Supreme Court's

landmark opinion on eyewitness identification in State v. Henderson, 208 N.J.

208 (2011). In Henderson, the Court examined a variety of factors that,

according to scientific studies, can confound what otherwise might appear to be

an eyewitness's reliable identification of a criminal wrongdoer. Id. at 218.

These confounding factors noted in Henderson include so-called "system

variables" (factors within the control of the criminal justice system, such as

suggestive aspects of lineup and photo array procedures) and "estimator

variables" (factors outside of the control of the criminal justice system, such as

the distance between a victim and an assailant, poor lighting, stress, personal

characteristics, and memory decay). Ibid. Given these variables, which can lead

to the conviction of a misidentified innocent person, Henderson instructs that

"courts must carefully consider identification evidence before it is admitted to

weed out unreliable identifications, and . . . juries must receive thorough

instructions tailored to the facts . . . to evaluate the identification evidence they

hear." Id. at 302.

In order to address such reliability concerns, the Court in Henderson

prospectively "revise[d] the State's framework for evaluating eyewitness

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identification evidence." Id. at 287. Among other things, the Court elected to

modify, see id. at 285-96, the applicable legal standard regarding eyewitness

identification admissibility, formerly known as the "Manson/Madison" test. See

generally Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (reciting a two-part

test of impressive suggestiveness and reliability); see also State v. Madison, 109

N.J. 223, 232-33 (1988) (adopting the federal approach in Manson to guide the

courts of this State), abrogated by Henderson, 208 N.J. at 208.

In particular, the Court in Henderson discredited three of the

Manson/Madison reliability factors (the opportunity to view the crime, the

witness's degree of attention, and the witness's level of certainty at the time of

the identification) because they are self-reporting elements that can be skewed

by suggestive police procedures. Henderson, 208 N.J. at 286.

As directed by the Court in Henderson, id. at 219, special model jury

instructions were adopted in 2012 to guide jurors on these critical concepts for

both out-of-court and in-court identifications. See Model Jury Charges

(Criminal), "Identification: In-Court and Out-of-Court Identifications" (2012);

Model Jury Charges (Criminal), "Identification: In-Court Identification Only"

(2012); Model Jury Charges (Criminal), "Out-of-Court Identification Only"

(2012).

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 These instructions, which became effective years before the instant trial,

provide jurors with an enhanced explanation of the scientifically known factors

that can result in a misidentification. As the Court stated in Henderson, "it is

essential to educate jurors about factors that can lead to misidentifications." Id.

at 303. The use of enhanced model jury charges on identification in criminal

trials "is a critical step in the overall scheme." Ibid.

Here, the detective who obtained the drugs from the seller on the two

occasions in question first ascertained the identity of the seller out of court. He

then reaffirmed the identity of that seller as defendant in an in-court

identification. The trial court provided the jurors with portions of only the

model charge on in-court identifications, and did not give them the different

"combined" model charge that includes guidance on out-of-court identifications.

That latter model charge includes several components that are important to the

detective's identification in this case.

First, with respect to "system variables," the omitted model charge

addresses several facets that can affect whether the out-of-court identification

was "the result of a suggestive procedure." Model Charges, "In-Court and Out-

of-Court Identifications" at 6. Among other things, the charge asks jurors to

consider whether the eyewitness who made the identification was exposed to

"information or influence, that may have affected the independence of his/her

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identification." Id. at 6-8. If, as here, the identification involved the viewing of

a photograph, the jury would be advised of the qualitative differences between

a single-photo identification procedure, as contrasted with one using a multi-

photo array.

As the Court has more recently observed, a single-photo identification

procedure is essentially a "show-up," which can be "inherently suggestive."

State v. Pressley, 232 N.J. 587, 592 (2018); see also Model Charges, "In-Court

and Out-of-Court Identifications" at 7 (describing a "showup" as "a procedure

[that] is suggestive in nature"). In Pressley, the Court noted, for example, that

it would have been preferable if the undercover officer who made a single-photo

identification of the defendant in Manson after making a controlled purchase of

drugs had instead been presented with a photo array containing a "reasonable

number of persons" who looked like the suspect. 232 N.J. at 591 (quoting

Manson, 432 U.S. at 117).

In this case, the jury could have reasonably found that the single-photo

procedure used by the detective, based on defendant's driver's license, was

inherently suggestive. Or at least the jury might have given less weight to the

probative force of that identification, based on the sequence of events.

Before making the first drug transaction, the detective had already been

supplied with hearsay information from the informant that the drug seller at the

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location was known as "George." The testifying detective was also told by a

Garfield detective that a person named "George Balloutine" lived at the Clark

Street address. The detective also learned that the person in the single driver's

license photograph he looked at was named "George Balloutine" and resided

there. The detective had no other basis to believe the suspect he interacted with

was defendant. Although the jury possibly may have considered this to be a

reasonable and fair method to identify the seller, it likewise could have found -

- after receiving proper instructions from the court -- that the process was too

fraught with suggestive aspects to be reliable.

In addition, for reasons that are unclear from the record, 1 the trial court

left out key portions of the charge on in-court identification explaining the

pitfalls of disguises, changed appearances, and prior descriptions of a

perpetrator. These unexplained omissions deprived the jurors of learning from

the court, in an objective manner, about the "estimator variables" that could have

affected the detective's out-of-court identification.

1
Unfortunately, the charge conference that apparently took place in the
afternoon on the next-to-last day of trial on January 18, 2018 was not
transcribed. The transcribed discussion of the charge that took place the
following day, January 19, does not reveal why the court and counsel omitted
the combined model charge on identification, and why the sections of the in-
court charge that concern disguises, changed appearances, and prior descriptions
of a perpetrator were skipped over.
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 Among other things, the charge would have explained to the jurors the

perils of such elements as "disguises," "changed appearances," and "prior

description[s] of the perpetrator." In particular, the jury could have benefited

from the following passages in the model instruction:

The perpetrator's use of a disguise can affect a witness's
ability both to remember and identify the perpetrator.
Disguises like hats, sunglasses, or masks can reduce the
accuracy of an identification.

***
Another factor for your consideration is the accuracy of
any description the witness gave after observing the
incident and before identifying the perpetrator. Facts
that may be relevant to this factor include whether the
prior description matched the photo or person picked
out later, whether the prior description provided details
or was just general in nature, and whether the witness's
testimony at trial was consistent with, or different from,
his/her prior description of the perpetrator.

[Model Charges, "In Court and Out-of-Court
Identifications" at 5 (emphasis added).]

These "estimator variables" were highly relevant in this case because, as

defense counsel argued in summation, the fact that the seller was wearing a hat

and the fact that the detective included in his police report a rather sparse

description of the seller's clothing but no description of the seller's physical

characteristics reasonably suggested the officer did not get a sufficient look at

the seller to make a positive identification. Without an instruction from the

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judge that those factors were relevant and should be considered, the jury could

have improperly concluded that defense counsel's argument had no merit or was

not supported by legal or scientific authority.

We are mindful that defendant's trial attorney did not object to the

omission of the combined model jury charge and these important considerations

on the reliability of an out-of-court identification. To be sure, the court did read

some, but not all, of the pertinent portions of the model charge on in-court

identification. But that did not suffice, particularly given that in-court

identifications can be influenced by tainted out-of-court identifications made by

the same eyewitness.

It is well established that jury charges must provide a "comprehensible

explanation of the questions that the jury must determine, including the law of

the case applicable to the facts that the jury may find." State v. Green, 86 N.J.

281, 287-88 (1981). Thus, "[t]he charge as a whole must be accurate." State v.

Singleton, 211 N.J. 157, 182 (2012). This is because "[a]ppropriate and proper

charges to a jury are essential for a fair trial." Green, 86 N.J. at 287.

More specifically, as is germane here, "[w]hen identification is a 'key

issue,' the trial court must instruct the jury how to assess the evidence—even if

defendant does not request the charge." State v. Sanchez-Medina, 231 N.J. 452,

466 (2018). A "missing instruction on identification is reviewed for plain

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error[,]" id. at 468, and is evaluated in light of "the strength and quality of the

State's corroborative evidence rather than on whether defendant's

misidentification argument is convincing." State v. Cotto, 182 N.J. 316, 326

(2005). Under the plain error standard, the error must be "clearly capable of

producing an unjust result." R. 2:10-2.

We cannot fairly conclude that the absence of the combined model

instruction on in-court and out-of-court identifications in this case and the

omission of the portions on disguises, changed appearances, and prior

descriptions was inconsequential. The case turned entirely on identification.

Defendant (and, as to the second transaction, his alibi witnesses) contended he

was not the drug seller and that he had been misidentified.

There were no third-party witnesses who saw the transactions. The State

did not offer into evidence a screenshot or copy of the driver's license photo that

the detective viewed in order to make his identification. We do not know how

old that photo was, or how much it resembled defendant's appearance as of June

2015. Although it was not essential for the State to have moved that photograph

into evidence, its absence further reduces the probative force of the State's

identification testimony.

Lastly on this subject, we reject the State's assertion that any defect

stemming from the omission of the model charge was cured by the arguments

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made by defense counsel in summation discussing flaws in the identification

processes. The words of a lawyer in summation are no substitute for the

guidance provided from the mouth of a judge. See State v. Adams, 194 N.J.

186, 207 (2008). Moreover, the jurors were told, as is customary, that they were

entitled to disbelieve the arguments and statements the lawyers made to them.

Not so with respect to a judge's instructions, which we presume the jurors must

and will obey.

Because the omission of this critical model jury charge in this case had a

clear capacity to lead to an unjust result, R. 2:10-2, that plain error requires a

new trial.

B.

Defendant separately argues the trial court deprived him of a fair trial, by

allowing the detective to convey, through his testimony, various hearsay

statements made by others. Because defendant's trial counsel did not raise such

a hearsay objection, our review is guided by the plain error standard. State v.

Branch, 182 N.J. 338, 353 (2005). We discern no such plain error and are

unpersuaded any alleged hearsay violations were clearly capable of producing

an unjust result.

Defendant argues the prosecution violated the restrictions of State v.

Bankston, 63 N.J. 263 (1973), by eliciting testimony from the detective that

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conveyed information he learned from other people. We disagree. The

principles of Bankston permit a police officer to testify that he went to a crime

scene or approached a suspect based "upon information received" in order for

the State to show the officer had not acted in an arbitrary manner. Id. at 268.

By contrast, the hearsay rule is violated when an officer becomes more specific

by repeating what some other person told him, in a manner that suggests or

implies to the jury that "he possesses superior knowledge, outside the record,

that incriminates the defendant." Branch, 182 N.J. at 351.

The detective's testimony about what he had been told by the confidential

informant did not go into details about the specifics of the alleged drug dealing

that had been occurring in Garfield, nor the informant's basis of his knowledge.

At most, the detective related that the informant had told him a person named

"George" had been distributing drugs in the area. The disclosure was relevant

to explaining how the police became involved in investigating the matter. The

detective never stated or implied that the informant was asserting that this

particular person was the drug seller. Even if the testimony were viewed as

being offered for its truth, the limited disclosures were not manifestly prejudicial

to amount to a denial of a fair trial or a material deprivation of the accused's

right to confrontation. The testimony was not unfairly prejudicial under

N.J.R.E. 403.

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 Additionally, the detective's testimony about conversations between

defendant and the informant that he overheard does not violate the hearsay rule,

because defendant's own statements are admissible as assertions by a party-

opponent. N.J.R.E. 803(b)(1). Likewise, out-of-court statements that the

detective himself made when he was arranging the meetings with the drug dealer

could appropriately be conveyed to the jury by the detective as part of his own

narrative, as to which he had personal knowledge. See N.J.R.E. 602.

The detective's testimony that he learned from another person that a drug

seller was at the Clark Street address does not require reversal, because the

detective subsequently gained personal knowledge of drug dealing there by

taking part in the two drug transfers at that location. Also, there was no hearsay

violation stemming from the detective's testimony about calling the cell phone

number to arrange the meetings with the seller, because the number itself is not

an assertive statement, and the detective's conduct in calling the number is an

action, not a statement. See N.J.R.E. 801(a) (defining a "statement" to

encompass only actions that are intended to be assertive).

In any event, even if we were to regard portions of the detective's

testimony to cross the hearsay boundaries, we are unconvinced those matters ,

which were not objected to by trial counsel, were so prejudicial as to require

appellate relief. Had the jury been properly instructed on eyewitness

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identification principles, we are satisfied there is ample non-hearsay

incriminating evidence in this record -- including the detective's first-hand

account of the two drug transfers, the audio recordings, and the CDS itself -- to

sustain defendant's conviction. 2

Reversed and remanded for a new trial.

2
If, hypothetically, a new trial was not required, the judgment of conviction
must be amended to remove the duplicative fines and penalties, as noted in the
State's brief.
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