STATE OF NEW JERSEY VS. RASHEED D. SHARPE (15-01-0172, ATLANTIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1570-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHEED D. SHARPE, a/k/a
RASEED FAULKNER, RASHEED
HAWKINS, and RASHEED
FAULKNER,
Defendant-Appellant.
____________________________
Argued October 31, 2018 - Decided November 28, 2018
Before Judges Koblitz and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 15-01-0172.
Michael T. Denny, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Michael T. Denny, of
counsel and on the brief).
Dylan P. Thompson, Assistant Prosecutor, argued the
cause for respondent (Damon G. Tyner, Atlantic
County Prosecutor, attorney; Dylan P. Thompson, on
the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Rasheed D. Sharpe appeals from his September 22, 2016
conviction of first-degree robbery, N.J.S.A. 2C:15-1, focusing on a March 29,
2016 order denying his motion to suppress three out-of-court identifications.
We affirm.
We review the facts relevant to defendant's appeal. Two home invasions
occurred on the same evening in Atlantic City, approximately one hour apart.
Four witnesses gave accounts of the home invasions. Each witness described
the two black males who entered their home. One male was described as five
foot ten inches tall, with a birthmark or tattoo under his right eye, and wearing
a black hooded sweatshirt. The other man was depicted as five foot five or six
inches tall and wearing a gray sweatsuit. The men did not wear masks and were
passing a gun back and forth during the robberies. The victims gave nearly
identical descriptions of the intruders and the gun.
Defendant became a suspect in the robberies. The police obtained a
photograph of defendant from an arrest in Connecticut. The photograph
depicted a scar under defendant's right eye.
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A photo array lineup was conducted by the police two weeks after the
robberies. The female victims identified defendant as the intruder who broke
into their home and robbed them. The same day, a male victim of the second
home invasion was shown the same photo array lineup, and identified defendant
as the individual who broke into his home.
The photo array shown to the victims contained six photographs, one of
defendant and five filler photographs. The photographs depicted black men with
similar hair and skin tone. However, defendant's photograph was the only one
with a mark under the right eye. The photo array identifications, while not
recorded, were memorialized in written reports completed after the
identifications.
The photo array shown to the two female victims was not double-blind
because one of the detectives knew defendant was the suspect. Both women
identified the photograph of defendant as one of the intruders. A different
officer administrated a double-blind photo array to the two male victims. One
male identified defendant's photograph as one of the intruders. The other male
was unable to identify the intruder from the array.
Defendant moved to suppress the out-of-court identifications. Defendant
argued several deficiencies in the photo array tainted the identifications,
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rendering the identifications inadmissible. Defendant's primary objection
focused on the claim that his photograph was the only picture showing a man
with a mark under his right eye. In addition, defendant contended the photo
array shown to the female victims was not conducted in a double-blind fashion,
and the police failed to make an audio recording while administering the photo
arrays.
The Wade1 hearing was conducted over the course of three separate dates.
In a thorough and well-reasoned written opinion, Judge Patricia Wild denied
defendant's motion to suppress the out-of-court identifications, finding the photo
array, while "not perfect," was not impermissibly suggestive or fatally flawed.
Judge Wild found the fact that defendant was the only individual with a
mark under his right eye "troubling" and "highly suggestive." The judge noted
the photo array shown to the female victims were not performed in accordance
with the double-blind requirement. Further, the judge found it was not clear if
officer conducting the photo array gave proper pre-identification instructions.
The judge acknowledged one of the female victims was under immense stress
as she was assaulted and held at gunpoint during the home invasion. Similarly,
the judge recognized the two-week delay between the date of the home invasion
1
United State v. Wade, 388 U.S. 218 (1967).
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and the date the photo array was shown to the victims. The judge also noted the
absence of an audio recording of the identification procedure.
On the other hand, Judge Wild found the detective who presented the
photo array to the female victims did not provide any feedback during the
identification process. Additionally, the judge commented that the duration of
the home invasion was lengthy, leaving ample time for the female victims to
observe the intruders' faces in the well-lit house.
In reviewing the identification made by the male victim, Judge Wild noted
the officer administered the proper pre-identification instructions, the array was
properly displayed using the double-blind method, and the officer did not
provide feedback during the photo identification process. While the photo
identification was not recorded on audio, the judge found the officer prepared a
written report of the identification in accordance with Rule 3:11.
After denial of his motion to suppress the out-of-court identifications,
defendant pleaded guilty to an amended charge of first-degree robbery. As part
of his guilty plea, defendant reserved the right to appeal the denial of his motion
to suppress the out-of-court identifications. Defendant was sentenced to seven
years in prison with an eight-five percent parole disqualifier, under the No Early
Release Act, N.J.S.A. 2C:43-7.2.
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In his counseled brief, defendant raises the following point:
POINT I
THE TRIAL COURT ERRED BY FAILING TO
SUPPRESS THE IMPERMISSIBLY SUGGESTIVE
OUT-OF-COURT PHOTO ARRAY
IDENTIFICATIONS OF THE DEFENDANT, WHICH
WERE TAINTED BY FLAWS IN CONSTRUCTION,
ADMINISTRATION, RECORDATION, AND
RELIABILITY.
A. The construction of the photo array was
impermissible suggestive.
B. Both officers failed to properly record
administration of the arrays.
C. The witnesses were under enormous stress and
subject to weapon focus during the encounter.
D. The arrays administered by [the officer handling
the first home invasion] were given without any pre-
identification instruction, and were not blindly
administered because he had prior knowledge of the
suspect.
In his pro se supplemental brief, defendant repeats the same arguments
raised by his assigned appellate counsel. Defendant's pro se brief consists of
eight separate paragraphs without point headings.
In reviewing a motion to suppress evidence, we generally defer to the
factual and credibility findings of the trial court, "'so long as those findings are
supported by sufficient credible evidence in the record.'" State v. Handy, 206
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N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We
accord deference to the trial court "because the 'findings of the trial judge . . .
are substantially influenced by his opportunity to hear and see the witnesses and
to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v.
Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471
(1999)).
We affirm substantially for the reasons expressed in Judge Wild's
comprehensive and well-stated written opinion. We add only the following
comments.
Defendant argues the construction of the photo array was highly
suggestive because defendant's picture used for the array was the only photo
showing a person with any facial mark. Because his photograph was the only
one with a facial mark, defendant claims his picture stood out among the six
photos in the array, and created a greater risk he would be identified as the
intruder on the basis of that feature alone. Defendant contends the detective
should have searched for filler photos using facial markings in addition to hair
and skin color.
In State v. Henderson, the New Jersey Supreme Court expressed that
"'mistaken identifications are more likely to occur when the suspect stands out
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from other members of a live or photo lineup.'" 208 N.J. 208, 251 (2011)
(quoting Roy S. Malpass et al., Lineup Construction and Lineup Fairness, in 2
The Handbook of Eyewitness Psychology: Memory for People, at 155, 156
(R.C.L. Lindsay et al. eds., 2007)). The Henderson Court held identification
procedures should use similar-looking people because "an array of look-alikes
forces witnesses to examine their memory. In addition, a biased lineup may
inflate a witness' confidence in the identification because the selection process
seems easy." Ibid.The Attorney General has promulgated guidelines regarding photo arrays
and lineup identifications. See Office of the Attorney Gen., N.J. Dep't of Law
and Pub. Safety, Attorney General Guidelines for Preparing and Conducting
Photo and Live Lineup Identification Procedures 1 (2001) (Guidelines). The
Guidelines require "fillers who generally fit the witness' description" of the
suspect. Ibid. Section I.D. of the Guidelines provides: "In composing a
photo . . . lineup, the person administering the identification procedure should
ensure that the lineup is comprised in such a manner that the suspect does not
unduly stand out. However, complete uniformity of features is not required."
Ibid.A-1570-16T1
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Even a poorly constructed lineup does not result in a per se "substantial
likelihood of irreparable misidentification[.]" Henderson, 208 N.J. at 289. In
the event of an imperfect lineup, the Henderson Court concluded imperfections
could be addressed through an appropriate instruction to the jury. Id. at 252
("[J]urors should be told that poorly constructed or biased lineups can affect the
reliability of an identification and enhance a witness' confidence.").
In this case, the detective who testified during the Wade hearing explained
he created the photo array with five filler photographs obtained through the
Sheriff's Office County Identification System. The detective stated he searched
for photographs of individuals with hair and skin color similar to defendant's
features. When asked if he could find any photographs with a facial marking
similar to defendant, the detective responded:
There [were] people there with facial markings. But to
find somebody with [a mark] under the right eye . . . I
mean, you'll find people in there with tattoos all over
their necks, scars on their faces, tattoos down the whole
side of their face, all different things. But to find
somebody that just has - like the victims described - the
marking under the right eye and only the marking under
the right eye, no, I couldn't.
In commenting on the absence of facial markings in the filler photos,
Judge Wild wrote:
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[The detective] indicated that he first attempted to find
appropriate fillers based on more general
characteristics such as hair and facial structure. The
[d]etective stated that once these specifications were
put into the system, he could not find any individuals
other than [d]efendant who had a similar marking under
their right eye. Additionally, [one female victim]
testified that her identification was made based on her
recollection of the perpetrator from November 9, 2013,
not the marking on [d]efendant's face.
Complete uniformity of features in a photo array is not required,
particularly in this case because the detective was unable to find another
photograph matching defendant's description, including skin, hair tone, and
mark under the right eye. The photo array was otherwise fair because the array
contained photographs of individuals with similar skin and hair tones.
Moreover, if defendant had gone to trial, and the matter was submitted to a jury,
the judge could have issued appropriate jury instructions regarding the
construction of the photo lineup and its limitations.
Having reviewed the record, and based on the totality of the
circumstances, we are satisfied defendant failed to demonstrate a substantial
likelihood of irreparable misidentification related to the three out-of-court
identifications. The judge's findings were supported by sufficient credible
evidence in the record of the Wade hearing.
Affirmed.
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