STATE OF NEW JERSEY VS. MELVIN Q. ROUSE (14-08-1402, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3693-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MELVIN Q. ROUSE,
Defendant-Appellant.
______________________________
Submitted September 14, 2017 – Decided October 3, 2017
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. 14-08-1402.
Joseph E. Krakora, Public Defender,
attorney for appellant (Rebecca Gindi,
Assistant Deputy Public Defender, of
counsel and on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Kerry J. Salkin,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Melvin Q. Rouse entered a guilty plea to an
amended charge of second-degree robbery, N.J.S.A. 2C:15-1, after
his motion to suppress an out-of-court identification was
denied. On March 11, 2016, the trial court sentenced him to
five years of drug court probation and imposed appropriate fines,
penalties, and assessments. Defendant now appeals, alleging
that the victim's show-up identification was impermissibly
suggestive and unreliable. We affirm.
While in Jersey City, Peter Vincent was robbed on May 8,
2014. One of the assailants, wielding a tire iron, struck him
on the head, causing injury. Earlier that night, Susan Wecht
had been robbed in a similar fashion in the same area. The
perpetrators were seen traveling in a black truck, with an
attached rear bicycle rack.
Detective Mark D'Ambrosio testified at the Wade1 hearing
that an ambulance transported Vincent to a location where six
occupants of a truck similar to that described by the victims
had been detained within minutes of the second robbery. A third
person, not Wecht or Vincent, identified the vehicle, but not
the occupants. D'Ambrosio stated that the show-ups were
illuminated by a street light and a police vehicle overhead
light.
Vincent remained in the ambulance while shown the six
suspects, including defendant, from a distance of about
1
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
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seventeen feet. Vincent is Caucasian, while the occupants of
the vehicle are African-American.
Before the show up, D'Ambrosio told Vincent that the persons
he would be seeing "may or may not" be the perpetrators.
D'Ambrosio completed a "Show-Up Identification Procedures
Worksheet" only for the three persons Vincent identified,
including defendant, and not for the three persons Vincent did
not recognize. D'Ambrosio did not recall asking Vincent while
at the scene about his level of confidence, although he
remembered that Vincent's positive identifications were made
within seconds of seeing the suspects.
D'Ambrosio witnessed Wecht's similar identification
process. She was seated in the rear of a police car
approximately ninety to one hundred feet from the ambulance, and
only identified a female perpetrator. The two victims had no
contact with each other. Given the angle of the ambulance,
D'Ambrosio did not believe it was possible for Vincent to have
seen Wecht identify anyone.
After the show-up, Vincent received medical attention at a
hospital emergency room, including stitches to close his head
wound. Approximately two hours later, he was taken to the police
station where D'Ambrosio videotaped his statement and showed him
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two tire irons. During the interview, Vincent said he was one-
hundred percent confident in his identifications.
One of defendant's investigators testified that he also
interviewed Vincent. His notes indicated that Vincent stated
he could not recognize the suspect's facial features because of
the poor lighting conditions, and that only three persons were
shown to him, not all six occupants of the vehicle. Vincent
said police brought "them all out[,]" which the investigator
interpreted as meaning that the suspects were shown to Vincent
as a group, not individually.
The judge found D'Ambrosio credible. Accounting for system
and estimator variables as defined in State v. Henderson, 208
N.J. 208, 248-72 (2011), he also found the identification to be
reliable. The judge further opined that D'Ambrosio's
documentation sufficiently complied with the Attorney General
Guidelines as well as Rule 3:11. See Office of the Attorney
Gen., N.J. Dep't of Law and Pub. Safety, Attorney Gen. Guidelines
for Preparing and Conducting Photo and Live Lineup
Identification Procedures 1 (2001). Therefore, he held that
defendant failed to meet his burden to demonstrate that there
was a very substantial likelihood of irreparable injury and
denied the motion.
On appeal, defendant raises the following points:
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POINT I
THE STATE FAILED TO PROVIDE THE COURT WITH
EVIDENCE NECESSARY TO DETERMINE RELIABILITY
BECAUSE THE OFFICER WHO CONDUCTED THE SHOW-UP
IDENTIFICATION FAILED TO RECORD ANY OF THE
SALIENT DETAILS OF THE IDENTIFICATION IN
VIOLATION OF DELGADO, RULE 3:11 AND THE
ATTORNEY GENERAL'S GUIDELINES. AS A RESULT,
THE IDENTIFICATION SHOULD BE SUPPRESSED. [ ]
POINT II
ALTERNATIVELY, THE COURT ERRED BY DENYING THE
MOTION TO SUPPRESS THE IDENTIFICATION BECAUSE
THE OUT-OF-COURT IDENTIFICATION PRESENTED A
VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
MISIDENTIFICATION. [ ]
A. The Court's Decision Not To Suppress
The Identification Was Based On Factual
Findings Unsupported By The Record.
B. P.V.'s Out-of-Court Identification
Was Tainted by a Number of Estimator
Variables Casting Substantial Doubt Upon
the Reliability of His Identification of
Mr. Rouse.
We defer to the trial court's findings of fact, so long as
they are supported by sufficient credible evidence in the record.
State v. Johnson, 42 N.J. 146, 162 (1964). We also defer to the
trial court's credibility findings. State v. Cerefice, 335 N.J.
Super. 374, 383 (App. Div. 2000).
In Delgado, the Court required law enforcement officers to
create "a written record detailing the out-of-court
identification procedure," as well as a written record of "the
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dialogue between the witness and the interlocutor, and the
results." State v. Delgado, 188 N.J. 48, 63 (2006). After
Delgado, Rule 3:11 was adopted, which made admissibility of an
out-of-court identification contingent upon the existence of a
written record of the identification procedure. R. 3:11(a).
The rule specifies the details to be documented, including the
"dialogue between the witness and the officer," and the "witness'
statement of confidence." R. 3:11(c); Accord Guidelines, supra,
N.J. Dep't of Law and Pub. Safety at 6.
Only after a Wade hearing can a court determine from the
totality of the circumstances if a legitimately challenged
identification is nonetheless reliable and admissible.
Henderson, supra, 208 N.J. at 238-39. Contrary to defendant's
contention on appeal, however, the State did provide adequate
evidence establishing the reliability of the identification.
Here, a sufficient written record was created of the salient
details of the show-up as required by Delgado, Rule 3:11, and
the Attorney General Guidelines. D'Ambrosio's recall of the
circumstances was imperfect, but the judge found him to be a
credible witness.
Vincent identified the suspects approximately ten to forty
minutes after the incident, well within Henderson's two-hour
timeline, which has the acknowledged "benefit of fresh memory."
6 A-3693-15T2
Supra, 208 N.J. at 259. D'Ambrosio told Vincent that the persons
he was going to be shown "may or may not" be the culprits. This
too contributes to the identification's reliability. See
Henderson, supra, 208 N.J. at 261. Although Wecht and Vincent
were shown the suspects while ninety-five to one-hundred feet
from each other, they had no contact, could not hear each other,
and Vincent had no sight line to Wecht's identification. We
therefore agree with the trial court that the combination of
D'Ambrosio's testimony and his written reports adequately
established reliability. The out-of-court identification was
properly ruled admissible.
Defendant also contends that the judge made factual
findings unsupported by the record. We do not agree.
D'Ambrosio testified that Vincent was shown the suspects
one-by-one, and could not have seen Wecht's identification from
his location. The investigator's testimony did not even
contradict this, as Vincent's words were ambiguous. The investi-
gator said that Vincent reported that the suspects were all
brought out, but that does not necessarily mean he meant they
were brought out as a group as the investigator concluded. It
is equally plausible that Vincent meant only that he saw all six
of the truck's occupants. Although the lighting conditions were
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less than ideal, they included street lights and a police
overhead light.
It is undisputed that while at the station, Vincent was
shown two tire irons before he was asked the degree of his
confidence in the identification. This was inconsequential.
When initially shown the suspects, Vincent identified only three
of the six, and did so within seconds.
Nor do we agree with defendant that the estimator variables,
particularly racial bias, stress, and weapon focus, reduce the
reliability of the identification in this case. See Henderson,
supra, 208 N.J. at 218, 261, 267. The record does not support
the argument. Just enumerating the factors that can have an
impact on an identification does not make it unreliable.
Accordingly, we consider the judge's denial of the motion to
have been proper.
Affirmed.
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