STATE OF NEW JERSEY VS. AL-SHAREEF METZ (12-06-1491 AND 12-06-1492, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4030-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AL-SHAREEF METZ,
Defendant-Appellant.
_______________________________
Argued October 24, 2017 – Decided November 16, 2017
Before Judges Carroll, Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
12-06-1491 and 12-06-1492.
Kelly Anderson Smith argued the cause for
appellant.
Kayla Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Robert D. Laurino,
Acting Essex County Prosecutor, attorney; Ms.
Rowe, on the brief).
PER CURIAM
Tried to a jury, defendant Al-Shareef Metz was convicted of
murder and related weapons offenses in connection with the 2011
shooting death of Tariq Walker. The only evidence connecting
defendant to the homicide were out-of-court identifications and
statements by two witnesses who told police defendant was the
shooter but recanted at trial. Defendant was sentenced to an
aggregate sixty-five year prison term with an eighty-five percent
period of parole ineligibility pursuant to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. He challenges his convictions by
raising the following points:
POINT I
[] DEFENDANT WAS IRREPARABLY PREJUDICED WHEN
THE TRIAL COURT ADMITTED HIGHLY SUGGESTIVE
PHOTO IDENTIFICATION OF THE DEFENDANT BY
STATE'S WITNESS, [T.J.],1 WITHOUT FIRST
CONDUCTING A WADE/HENDERSON HEARING.
POINT II
THE TRIAL COURT IMPROPERLY ADMITTED THE OUT-
OF-COURT STATEMENT OF [K.L.].
POINT III
THE PROSECUTOR RELIED UPON IMPROPER AND
PREJUDICIAL REMARKS IN HIS CLOSING STATEMENT
WHICH INFLAMMED [sic] THE JURY AND DEPRIVED
[] DEFENDANT [OF] A FAIR AND IMPARTIAL
EVALUATION OF THE EVIDENCE IN THE CASE.
POINT IV
THE TRIAL COURT FAILED TO GIVE A PROPER AND
COMPLETE JURY INSTRUCTION REGARDING PHOTO
ARRAY IDENTIFICATION.
1
We use initials to protect the privacy of the witnesses.
2 A-4030-14T4
POINT V
THE TRIAL COURT FAILED TO PROPERLY RESPOND TO
THE JURY'S REQUEST FOR A LIST OF EVIDENCE.
POINT VI
DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE
TRIAL COURT FAILED TO MAKE A COMPLETE RECORD
[OF] CRITICAL READ-BACK TESTIMONY OF A
MATERIAL WITNESS.
POINT VII
[THE] CUMULATIVE IMPACT OF THE ERRORS
COMMITTED THROUGHOUT THE TRIAL DENIED
DEFENDANT A FAIR AND IMPARTIAL PROCEEDING.
We have considered these arguments in light of the record and
applicable legal standards. For the reasons that follow, we
conclude the trial court erroneously failed to conduct an
evidentiary hearing on one of the witness identifications; its
read back of witness testimony was incomplete and misleading; and
the prosecutor's summation was improper. Because the cumulative
impact of these errors was capable of producing an unjust result,
we reverse the convictions and remand for a new trial.
I.
On March 24, 2014, before starting jury selection, the court
asked whether any motions in limine were pending. The State
advised it had filed an in limine motion in April 2013, and
represented, "I'm sure Your Honor will recall[] we discussed it
at some length previously." The State explained its witness,
3 A-4030-14T4
T.J., had originally selected photograph number two from a photo
array, which was not defendant, and later that evening changed her
mind and selected photo number five, which was defendant. The
State noted both the first and second identifications were video
recorded, but the first one "was lost, somehow misplaced." The
State's motion was to admit the second identification,
notwithstanding the loss or destruction of the recorded first
identification.
Defense counsel then advised the court, "The only question
is . . . whether or not you have to hear testimony. Our argument
is that you, obviously, have to take testimony[,] [u]nder Rule
3:11[.]" When the court pointed out T.J. might be able to clarify
how she recognized defendant, defense counsel noted, "that's why
the question . . . of whether or not she has to be heard or there
has to be a hearing." He suggested both out-of-court
identifications should be admitted if the court were to find T.J.
could identify defendant at trial without being tainted by the
photo arrays. To clarify, defense counsel added, "[I]f she's
testifying that she knows him, then that potentially eliminates
the taint. But if she's testifying that she doesn't know him,
then it's clear that her identification of him was based on the
taint." Counsel then requested a hearing to resolve the issue.
4 A-4030-14T4
The court inquired whether defense counsel had filed a Wade2
motion. Counsel responded he did not do so because the State
filed the motion in limine and requested a hearing. Counsel
further stated that he, the court, and the prosecutor discussed
this at a prior proceeding and determined there was no need to
file the Wade motion.
The State then produced a transcript of the recording from
T.J.'s second identification, where T.J. selected defendant's
photograph, number five, from the photo array. After the State
read excerpts from the transcript into the record, it argued T.J.
said number five "of her own volition" and "not at the suggestion
of the detective." Defense counsel asserted no evidence supported
the State's position that T.J. decided on her own to return to the
police and say "I misidentified," and the detective's leading
questions constituted the only evidence that T.J. was hesitant to
testify because she was afraid of retaliation from people "on the
street." Defense counsel further noted that not only was the
recording of the first identification lost, but the State produced
no notes or written summaries of what occurred during that first
identification. Thus, the only record of what transpired was the
2
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
5 A-4030-14T4
description an investigating officer, Detective Kelly, provided
during his discussion with T.J. on the recording of the second
identification. The State conceded Kelly was not a disinterested
and detached officer, and he purportedly conducted the second
identification because no such officers were available at the
courthouse around midnight, when the second statement was taken.
Defense counsel sought to suppress T.J.'s testimony pursuant
to Rule 3:11(d).3 The court labeled that "a strong remedy" and
told defense counsel, "Give me some case law and I will use my
sound discretion." Defense counsel agreed to do so. The record
on appeal does not reflect whether the parties submitted briefs,
whether another hearing was held, or whether the court entered any
orders connected with the State's in limine motion or defendant's
3
Rule 3:11(d) provides:
If the record that is prepared is lacking in
important details as to what occurred at the
out-of-court identification procedure, and if
it was feasible to obtain and preserve those
details, the court may, in its sound
discretion and consistent with appropriate
case law, declare the identification
inadmissible, redact portions of the
identification testimony, and/or fashion an
appropriate jury charge to be used in
evaluating the reliability of the
identification.
Notably, the rule became effective in September 2012, following
the photo identifications in this case.
6 A-4030-14T4
competing request to suppress T.J.'s identification testimony.
Ultimately, however, T.J. testified at trial regarding both
identifications.
T.J. testified that on the evening of June 29, 2011, she was
with the victim, Walker, and another individual, "Wilfee," near
the intersection of Shephard and Huntington Avenues in Newark. At
that time, "a Cherokee truck pulled up . . . and someone jumped
out the passenger [side] and ran [Walker] down with like a
shotgun." She and Walker ran in different directions, and the
shooter ran after Walker. T.J. heard "a lot" of shots, following
which she walked over to Walker and observed he had been shot.
T.J. testified the shooter was wearing a white t-shirt and
jeans. She stated she got a good look at the shooter that night
and would be able to identify him again, but when asked whether
she saw that person in the courtroom, T.J. testified she did not.
Defendant was present in the courtroom at the time.
T.J. recounted the circumstances surrounding her prior out-
of-court identifications. Two days after the murder, she was
driving in Newark when detectives pulled her over. The detectives
told her they had video footage of her with Walker when he was
shot, and she had to accompany them to the Essex County
Prosecutor's Office.
7 A-4030-14T4
T.J. was placed in a room with "speakers and cameras," where
she told Kelly and a second detective what she observed on June
29, 2011. The detectives then left the room, and a female
detective, Detective Oliveria, entered alone and showed T.J. a
photo array. T.J. selected photograph number two as the shooter
and communicated that to Oliveria. T.J. testified she was
confident about her selection. At 10:18 p.m., Oliveria had T.J.
sign her name on photograph number two.
T.J. testified, "then all these different guys coming in
saying all this, scaring us." Referring to the detectives, she
explained:
I didn't tell him nothing but then I was in
for hours, I was just ready to get out, I am
hostage and they was like threatening me,
telling me about that they could pull up
records of tickets, you go to jail, basically
scaring me up.
When she asked to leave, Kelly said, "not now."
Referring to Kelly, T.J. stated, "He asked me am I sure that
I picked the right photograph. I said that's what I saw, so--."
Kelly then pointed to photograph number five and asked, "Do you
think this is the person?"
T.J. testified, "By then I am just like scared, . . . [t]hey
had me in for six to seven hours[,]" and by that point she was
"ready to go." Kelly instructed her to cross out her signature
8 A-4030-14T4
on photograph two and put her initials there, and T.J. complied.
At one minute after midnight, T.J. initialed photograph number
five and wrote "the person that shot [Walker], he had a white tee
shirt." In response to leading questions from the prosecutor,
T.J. stated she chose photograph number five of her own volition.
On redirect examination by the prosecutor, the following
exchange occurred:
Q: You have never met with me.
A: No, just spoke to you on the phone.
Q: Is that because you didn't want to come
down here?
A: Yes.
Q: You didn't want to testify today?
A: Yes.
Q: You didn't want to come meet with me prior
to the testimony?
A: Right, I didn't want to come to this
building.
Q: Why?
A: Because how I was treated in 2011.
Q: Had you ever indicated that you had fear
about testifying?
A: Yeah.
Q: You had fear about going back to the
neighborhood?
9 A-4030-14T4
A: Well, I also go through the neighborhood,
I got family in Newark so I am always passing
through the neighborhood.
Q: Even to this day?
A: I don't feel like I have to jeopardize,
can't come to Newark because, you know --
Immediately after that exchange, T.J.'s testimony concluded
with the following re-cross examination by defense counsel, which
was later omitted from a read back of her testimony to the jury:
Q: That night, that is the night of July 31st,
into August 1st, the police put you in fear,
true?
A: Yes.
Q: That night of July 31st to August 1st they
threatened to lock you up about tickets, true?
A: Yes.
Q: Were you afraid?
A: I think I had two parking tickets that I
hadn't paid yet by then, I think it was the
[second detective] saying like he could lock
me up, scaring me up.
[(Emphasis added).]
A second witness called by the State, K.L., testified he was
inside a building near the intersection of Shephard and Huntington
Avenues in Newark on July 29, 2011. He stated he did not observe
the shooting, did not know the victim personally, and was unable
to identify the shooter in the courtroom. The State requested a
10 A-4030-14T4
sidebar, advised the court that K.L. had directly contradicted two
prior sworn statements, and requested a hearing pursuant to State
v. Gross, 121 N.J. 1 (1990). Defense counsel joined the request,
and the court excused the jury and conducted the hearing.
At the Gross hearing, K.L. testified he was arrested on August
29, 2011, on drug-related charges. He was then brought to
Detective Philip Gregory, who asked whether he knew someone
involved in Walker's shooting. K.L. initially responded he did
not, but ultimately he gave a statement because Gregory said he
would release him, and K.L. felt coerced. K.L. acknowledged his
statement was recorded, but asserted Gregory told him what to say.
He further testified Gregory showed him a photo array and told him
to select defendant's photo. Detective Muhammed, who K.L. had
never met before, then came into the room to show him the same
photo array, but he "didn't pick anything."
K.L. testified that, on a later date, Gregory "called me and
told me I had to come in. So, I come in. He bring me in the room
with people like this sitting, I don't know what I was there for."
He added, "I thought it was a court date and . . . [w]hen I got
down there, Detective Gregory was there. He was just telling me:
'Look, you about to go in there, tell them such-and-such, such.'"
At nineteen years old, K.L. did not realize he was about to testify
at defendant's grand jury hearing.
11 A-4030-14T4
K.L. asserted he did not remember any details about the
shooting, what he told the detectives, or his grand jury testimony.
He explained that, before the grand jury, "I repeated everything
[Gregory] told me to repeat when it happened that day." He stated
he was drinking when the shooting occurred, "so I really don't
remember half of the stuff that was going on that day." He added
he had been shot on a previous unrelated occasion before Walker's
death, "so I was on a whole lot of morphine. I was in the hospital
for like a month-and-a-half, so I really don't remember a whole
lot of stuff."
Following K.L.'s testimony at the Gross hearing, the State
called Gregory, who gave a different version of events. According
to Gregory, K.L. indicated he observed "what happened regarding
[the] shooting." Gregory explained he prepared a photo array and
then Muhammed, who had no other involvement in the case,
administered it to K.L. Gregory did not advise Muhammed which
photo depicted defendant, nor promise to let K.L. go if he gave a
statement.
After the testimony at the Gross hearing concluded, the judge
reviewed the video of K.L.'s recorded interview. In a detailed
oral opinion, the judge concluded the State established the
reliability of K.L.'s prior statements by a preponderance of the
evidence. K.L.'s video-recorded statement to Gregory and Muhammed
12 A-4030-14T4
and an audio recording of his grand jury testimony were admitted
in evidence and played for the jury.
K.L. then resumed his trial testimony. He stated he visited
Muhammed Bashir, defendant's trial attorney, at Bashir's office
three or four weeks before trial. Bashir made an audio recording
of the conversation and gave a copy to the State, although it was
not admitted in evidence.
When asked his purpose in visiting Bashir, K.L. testified,
"Because I wanted to let him know that this whole thing was a
lie." The prosecutor then asked: "Is it true your primary
motivation for going to see Mr. Bashir is you were afraid your
name would get out on [the] streets as a tattletale or snitch?"
K.L. responded, "Yes," but when asked the clarifying question,
"That's your primary motivation in going to see him?" he responded,
"No."
The following exchange occurred during the State's redirect
examination of K.L. regarding his audio-recorded conversation with
Bashir:
Q: You recall "I assume you are here because
you are afraid of what could happen on the
streets if your name came out [as] part of
this particular case"?
A: No.
Q: You don't recall that?
13 A-4030-14T4
A: No.
. . . .
Q: Do you remember indicating ["]at the end
of the day, I just don't want to get that name
-- I got a mother, I got a daughter, I -- like
I just got a lot of people. You feel me? I
can't have nobody--it's just a lot of it, just
everything that you could think about from
being a tattletale . . . . That's my own
words.["] Do you recall giving that?
A: Yeah, I didn't say it like that, how you
just said it.
Q: You got to think about more than one person
right now. Is that correct?
A: Yes.
Q: While you were changing your story, do you
recall – ["]I am changing my story from the
first story, that's because I want to protect
my whole family, to protect everybody.["]
A: No.
. . . .
Q: You indicated that you had ["]great concern
about becoming a tattletale.["] Describe to
me what that means. What is a tattletale?
A: Tattletale is when you tell on someone.
Q: What are the repercussions you're concerned
about?
A: I am not.
. . . .
Q: The reason for indicating that was your
primary motivation when asked by — you came
14 A-4030-14T4
to Mr. Bashir's office concerned about being
a tattletale.
A: I wasn't concerned about --
Q: You weren't concerned about you, you were
concerned about being a tattletale[?]
A: No.
Q: It's not difficult to come in here and
testify in front of all this open courtroom?
A: I am telling you the truth. That's what I
want, to tell truth.
Q: You're not concerned about leaving here
today and going back to the neighborhood?
A: No.
Q: [] No?
A: I am not concerned.
[(Emphasis added).]
Early in his summation, the prosecutor used the following
metaphor:
I want to talk to you about the concept of a
cocoon. It's not [going to] be a story about
how somebody goes into the cocoon at one time
and comes out a butterfly. It's more about
the idea of being wrapped and feeling safe,
like when a newborn comes into the world,
you're taught to swaddle them. First thing
they want to have done to them is they want
that blanket put around them, they want it
wrapped tight, and they want to feel safe.
Your . . . out-of-court identifications in
this case happen in a cocoon. Before that --
before they're there, they're frightened.
15 A-4030-14T4
The prosecutor then stated, "[K.L.] told you over and over and
over that he was scared. And he didn't just say it now, he said
it over and over and over in the past."
The prosecutor then referenced the portion of K.L.'s cross-
examination relating to K.L.'s meeting with Bashir a few weeks
before trial. The prosecutor recited Bashir's question asking
K.L. if he met with Bashir because he was "afraid of what could
happen to [him] on the streets if [his] name came out as part of
this particular case." As the prosecutor was about to recite
K.L.'s answer from the recording, defense counsel objected and the
court conducted a sidebar conference.
The prosecutor explained he intended to read to the jury from
the transcript made of the recording of that meeting. The court
responded, "I understand you asked the questions but you can't
read from something that's not in evidence." (Emphasis added).
The court ultimately overruled the objection, determining the
State was not seeking to introduce K.L.'s answers to Bashir for
the truth of the matter asserted, but rather for the limited
purpose of showing K.L.'s inconsistency. The court did not,
however, instruct the jury that K.L.'s statement could be
considered only for that limited purpose.
After resuming his summation, and despite the court's ruling,
the prosecutor continued,
16 A-4030-14T4
I indicate to you that the inconsistency is
the truth. His number [one] priority in this
world at this time was to clear his name and
to think about his daughter, and all those
types of things that he indicated to you. He
doesn't want to be a tattle tail [sic] on the
street. He is afraid. That's his primary
motivation. Otherwise, the first answers to
those things would have been totally
different."
[(Emphasis added).]
At the jury charge conference, defense counsel requested the
court include the subsection of the model jury charge on out-of-
court identifications labeled "Multiple Viewings,"4 arguing it
applied because T.J. had been shown photograph number five "three
or four times." The court rejected defendant's request, concluding
the charge was inapplicable to his theory of the case.
During jury deliberations, the court received jury note C-3,
which contained the following two questions: (1) "Can we have a
copy of a list of all evidence[?]" and (2) "was crime scene report
[sic] entered into evidence and can we have a copy[?]" After
conferring with the prosecutor and defense counsel, and securing
their consent, the court advised the jury that it could not create
an evidence list for them but they were free to compile their own.
4
See Model Jury Charge (Criminal), "Identification: Out-Of-Court
Identification Only" at 5, 6 (2012).
17 A-4030-14T4
The court further informed the jury, "you can have testimony read
back as well, if you like."
The court also received jury note C-6, which read, "We would
like to see -- or in parenthesis -- or be re-read -- or read the
entire testimony of [T.J.], both direct and cross." (Emphasis
added). The court responded, "In fact, when you ask for testimony
of a witness, you get direct, cross, redirect, re-cross, and []
all testimony . . . ." (Emphasis added). The court reporter then
"read back" T.J.'s testimony.
Defense counsel requested a sidebar and advised the court,
"The last question I asked her on [] re-cross was: Are you more
afraid . . . of the streets? Or are you more afraid of the
police?" The prosecutor responded, "I actually do remember that.
I do remember that. I do." The court agreed to look into the
matter and told the jury, "In listening to the testimony, there
may have been one or two questions or answers that may not have
been recorded. . . . I'm going to ask you to continue your
deliberations. However, we're going to double check, to make sure
that we had the complete testimony."
An hour and forty-five minutes later, the court called the
jury in and advised them, "In response to your question, I have
reviewed the transcript and that is the entire testimony. So, you
18 A-4030-14T4
can continue your deliberations. Okay? That's the entire
testimony under the official court record." (Emphasis added).
The jury resumed deliberations and the court addressed the
attorneys "for the record." The court noted it reviewed the
transcript and did not see the re-cross testimony, but it was
"aware that there is a backup system working in Trenton at all
times." The court then explained,
During lunch, I called Trenton to see -- I was
always advised that you need a Court Order and
I was always advised really then it had to be
from the Assignment Judge, but I called
Trenton to see the feasibility of assessing
this record, this backup system, to see
whether or not this question was even asked.
I was called back and they told me again that
I needed to have my Assignment Judge. . . .
I also got a call from the Appellate Division
while counsel was in my chambers, which said
they heard I had a problem or something, and
I talked to them. I told them I pretty much
resolved this in my mind because we're in the
middle of a homicide deliberation from a
trial. I'm certainly not going to recess
trial and try to get a Court Order to assess
something that the defense attorney -- and for
the record, the Prosecution said they believe
they heard it too and they were willing to
stipulate to it -- to recess this to confirm
it.
I am going to go with the official court
record, and as anyone knows who tries cases
the official court record is the record that's
provided by the official court reporter. And
that's why I just advised the jury that under
the official court record that's the entire
testimony, and that's the position of this
19 A-4030-14T4
Court. I don't know how I could do anything
differently. And certainly, I don't think it
would be appropriate to recess this trial
because there ha[s] been a question and an
answer that the attorneys believe was stated
to this witness that wasn't included in the
read back.
[(Emphasis added).]
On April 23, 2014, the jury found defendant not guilty of
conspiracy to commit murder (count one) and guilty of murder (count
two), unlawful possession of a weapon (count three), and possession
of a weapon for an unlawful purpose (count four). A trial was
then conducted on a separate indictment charging defendant with
certain persons not to possess weapons, on which the jury also
returned a guilty verdict. On March 16, 2015, defendant was
sentenced to an aggregate sixty-five year prison term, subject to
NERA. This appeal followed.
II.
A.
We first address defendant's argument that the trial court
erred by failing to hold a hearing on whether the police
irreparably tainted T.J.'s identification of defendant by
conducting the photo array procedure in an impermissibly
suggestive manner. Defendant attacks the admissibility of T.J.'s
identification, based on suggestiveness and reliability, as well
20 A-4030-14T4
as the police failure to keep a record of T.J.'s first
identification in which she identified someone else as the shooter.
The State responds that "[d]efendant invited the error he now
challenges" because he "never requested a Wade hearing and,
instead, simply challenged the State's motion in limine to admit
[T.J.'s] out-of-court identifications." It further contends
defendant "made a sound strategic decision . . . not to push the
suppression issue and opted to have the full opportunity to cross-
examine [T.J.]."
Historically, courts followed the United States Supreme
Court's two-part test to determine the admissibility of an
eyewitness's out-of-court photographic identification, set forth
in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed.
2d 140 (1977), which was adopted by the New Jersey Supreme Court
in State v. Madison, 109 N.J. 223 (1988). In Manson, the United
States Supreme Court expounded on the test initially identified
in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L.
Ed. 2d 1247 (1968), which requires a court to determine whether
the out-of-court photographic identification procedures used were
impermissibly suggestive. Manson, supra, 432 U.S. at 114, 97 S.
Ct. at 2253, 53 L. Ed. 2d at 154. If so, the court then must
examine whether the objectionable procedure resulted in "a very
21 A-4030-14T4
substantial likelihood of irreparable misidentification." Id. at
116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155.
When examining a challenge to the admissibility of
identification testimony, a court must assess whether the
impermissibly suggestive procedures used by law enforcement
prejudicially affected the identification, by weighing five
factors to "determine whether . . . sufficient indicia of
reliability [would] 'outweigh the "corrupting effect of the
suggestive identification itself."'" Madison, supra, 109 N.J. at
239 (quoting State v. Ford, 79 N.J. 136, 137 (1979) (quoting
Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d
at 154)). These factors "include the opportunity of the witness
to view the 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." Manson, supra, 432 U.S. at 114, 97 S. Ct. at
2253, 53 L. Ed. 2d at 154.
After Madison, the Court again considered eyewitness
identification challenges in State v. Delgado, 188 N.J. 48 (2006).
Noting "[m]isidentification is widely recognized as the single
greatest cause of wrongful convictions in this country[,]" id. at
60, the Court chose to exercise its supervisory powers, granted
22 A-4030-14T4
by Article VI, Section 2, Paragraph 3 of the New Jersey
Constitution, "to require, as a condition to the admissibility of
out-of-court identifications, that the police record, to the
extent feasible, the dialogue between witnesses and police during
an identification procedure." Id. at 51. The Court held the
admissibility of out-of-court identifications was conditioned upon
the preparation of:
a written record detailing the out-of-court
identification procedure, including the place
where the procedure was conducted, the
dialogue between the witness and the
interlocutor, and the results. Preserving the
words exchanged between the witness and the
officer conducting the identification
procedure may be as important as preserving
either a picture of a live lineup or a
photographic array. When feasible, a verbatim
account of any exchange between the law
enforcement officer and witness should be
reduced to writing. When not feasible, a
detailed summary of the identification should
be prepared.
[Id. at 63.]
By that time, "[t]he State's Attorney General . . . ha[d]
recognized that eyewitness identification 'evidence is not fool-
proof,' and made New Jersey the first state to adopt the United
States Department of Justice's procedural recommendations to
increase reliability in photo and live lineups." State v. Romero,
191 N.J. 59, 74 (2007) (citing Letter from Attorney General John
J. Farmer, Jr., to All County Prosecutors et al., at 1 (Apr. 18,
23 A-4030-14T4
2001) (on file with the New Jersey Division of Criminal Justice)).
In that letter, the Attorney General instructed:
When it is not possible in a given case to
conduct a lineup or photo array with an
independent investigator, the primary
investigator must exercise extreme caution to
avoid any inadvertent signaling to a witness
of a "correct" response which may provide a
witness with a false sense of confidence if
they have made an erroneous identification.
Studies have established that the confidence
level that witnesses demonstrate regarding
their identifications is the primary
determinant of whether jurors accept
identifications as accurate and reliable.
Technological tools, such as computer programs
that can run photo lineups and record witness
identifications independent of the presence of
an investigator, as well as departmental
training of a broader range of agency
personnel to conduct lineups and photo
identifications may also assist agencies and
departments with staff and budget constraints
in implementing this recommendation.
[Letter from John J. Farmer, Jr., Att'y Gen.,
to All Cty. Prosecutors, et al., at 2 (Apr.
18, 2001) (footnote omitted),
http://www.njdcj.org/agguide/photoid.pdf.]
The Supreme Court revisited and comprehensively considered
this thorny issue in State v. Henderson, 208 N.J. 208 (2011),
which established a more detailed framework to examine the
admissibility of out-of-court identification testimony, provide
new guidelines to reduce the possibility of misidentification,
offer a more adequate measure for reliability, and deter potential
police misconduct. Id. at 288-99. However, the photo
24 A-4030-14T4
identifications at issue in the present case were conducted before
Henderson's new rule of law took effect and remain subject to the
prior rubric of Manson/Madison.5
A trial court may need to conduct a pretrial Wade hearing
pursuant to N.J.R.E. 104 to determine whether the out-of-court
identification should be suppressed under the Manson/Madison
framework. State v. Michaels, 136 N.J. 299, 320 (1994). In
Michaels, the Supreme Court "recognized that when an
identification is crucial to the prosecution of a criminal case,
its reliability, and ultimate admissibility, must be strictly
tested through a searching pretrial hearing." Id. at 319.
There is no automatic right to a Wade hearing, and there must
first be a "threshold showing of suggestiveness" in a witness's
out-of-court identification. State v. Ruffin, 371 N.J. Super.
371, 390-91 (App. Div. 2004). While a trial court only needs to
address the issue of "taint" after finding the identification
procedure used was "unduly suggestive," the Supreme Court advised
trial courts "to hold a taint hearing and make specific findings
of fact on the independent reliability of the identifications"
when the identification process implemented was sufficiently
"questionable." Madison, supra, 109 N.J. at 244-45. It further
5
See id. at 220 (applying new test prospectively, from September
4, 2012).
25 A-4030-14T4
noted "it is helpful to an appellate court if a trial court sets
forth its specific findings on why it deems a photo array not
impermissibly suggestive," and the failure of a trial court to
make such specific findings "unduly complicates appellate review."
Id. at 245 (second quotation quoting State v. Cooper, 165 N.J.
Super. 57, 67 (App. Div. 1979)).
Here, the record does not support the State's contention that
defendant invited any error by failing to request a Wade hearing.
"The doctrine of invited error operates to bar a disappointed
litigant from arguing on appeal that an adverse decision below was
the product of error, when that party urged the lower court to
adopt the proposition now alleged to be error." N.J. Div. of
Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010)).
It instead appears the State's in limine motion was discussed
at an earlier proceeding, when it was indicated it was not
necessary for defendant to formally file a Wade motion with respect
to T.J.'s out-of-court identification that the State sought to
admit. Rather than inviting any error, defendant opposed the
State's motion, repeatedly requested a hearing, and argued that
suppression of T.J.'s identification, rather than its admission,
was the appropriate remedy.
In any event, the court erred by failing to conduct an
evidentiary hearing on the State's in limine motion. At the time
26 A-4030-14T4
the photo array was conducted, the State was required to preserve
the dialogue between the witness and questioner and the results
of that dialogue, by verbatim recording when feasible and, if not,
by detailed summary. Delgado, supra, 188 N.J. at 63. The State
failed to produce any record or summary of what occurred during
the first identification when T.J. selected photograph number two
and not the defendant's photograph. The State was unable to
proffer any explanation why this recording was not preserved.
Moreover, the State all but conceded the process employed by the
police did not comport with the New Jersey Attorney General
Guidelines concerning photo identification procedures because
Detective Kelly, and not an independent investigator, participated
in the second identification. All these facts call into question
the validity of the identification procedure. Since T.J.'s
identification of defendant was crucial to his prosecution, the
court should have conducted an evidentiary hearing to determine
the admissibility of that identification.
Critical also is the court's failure to rule on the State's
in limine motion. At the very least, the court erred in not
placing its findings on the record. During argument on the motion,
the judge acknowledged T.J.'s first identification "raises some
questions because it was recorded and it was lost. And so then
the court would have to make a legal finding as to whether or not
27 A-4030-14T4
that was done in bad faith." However, the judge failed to make
any findings with regard to this or any other aspect of the motion.
Because we conclude this and other trial errors discussed
below cumulatively warrant reversal of defendant's convictions,
on remand we direct the trial court to conduct an evidentiary
hearing. The court shall make specific findings regarding the
absence of a record of T.J.'s first identification and whether the
police procedures employed during T.J.'s identifications were
impermissibly suggestive. Depending on those findings, the court
shall then determine whether the absence of a record of the first
identification, or any improper police procedures, created a "very
substantial likelihood of irreparable misidentification."
Madison, supra, 109 N.J. at 232.
B.
Defendant argues he was deprived of a fair trial due to
improper remarks made by the prosecutor during summation. He
contends the "cocoon" analogy was inappropriate because it
"creat[ed] a hostile environment for the [d]efendant." He also
asserts the State mischaracterized K.L.'s testimony, and that his
alleged fear was "not in evidence, but mere speculation by the
State."
"Prosecutors are afforded considerable leeway in closing
arguments as long as their comments are reasonably related to the
28 A-4030-14T4
scope of the evidence presented." State v. Frost, 158 N.J. 76,
82 (1999). Prosecutors "are duty-bound to confine their comments
to facts revealed during the trial and reasonable inferences to
be drawn from that evidence." Id. at 85. "In determining whether
prosecutorial misconduct is prejudicial and denied defendant a
fair trial, [the courts] consider whether defense counsel made a
timely and proper objection, whether the remark was withdrawn
promptly, and whether the court ordered the remarks stricken from
the record and instructed the jury to disregard them." State v.
Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13
N.J. 137, 141-42, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L.
Ed. 350 (1953)).
Prompt and effective instructions have the ability to
neutralize prejudice engendered by an inappropriate comment or
piece of testimony. State v. Wakefield, 190 N.J. 397, 440 (2007),
cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817
(2008). Whether or not a curative instruction can eliminate the
danger of such an error "focuses on the capacity of the offending
evidence to lead to a verdict that could not otherwise be justly
reached." State v. Winter, 96 N.J. 640, 647 (1984).
In the present case, a significant portion of the prosecutor's
summation focused on K.L.'s alleged inconsistent statements. A
prior inconsistent statement may be introduced to neutralize
29 A-4030-14T4
testimony under N.J.R.E. 607, which, unlike N.J.R.E. 803(a)(1),
does not require the court to determine the prior inconsistent
statement is reliable. State v. Nelson, 318 N.J. Super. 242, 252
(App. Div.), certif. denied, 158 N.J. 687 (1999); State v.
Benthall, 182 N.J. 373, 380 (2005) (emphasizing a prior
inconsistent statement is only admissible under N.J.R.E. 607 after
the trial court finds "the party seeking to neutralize had no
prior knowledge that the witness would testify contrary to the
prior statement").
"Neutralization evidence may only be used to 'eras[e] or
cancel[]' surprising, harmful testimony. It may not be used
affirmatively, that is, for the truth of the matter being asserted.
Its use lies in assisting the jury only 'in deciding whether to
believe the testimony which the prior statement contradicts.'"
Id. at 385 (citations omitted). In such instances, the trial
court must give the jury a limiting instruction that "strongly
emphasize[s] that in no event is the jury to use the prior
statement as proving the truth of the matter therein allegedly
stated." Id. at 379 (quoting State v. Gallicchio, 44 N.J. 540,
547 (1965)).
Here, arguably the prosecutor's cocoon remark was based on
reasonable inferences drawn from the witnesses' pretrial
statements and was not plain error. We reach a different
30 A-4030-14T4
conclusion, however, regarding the prosecutor's reference to
K.L.'s recorded conversation with Bashir.
As with K.L.'s statement to the detectives, the State could
have sought to admit K.L.'s recorded conversation with Bashir into
evidence for the truth of the matter asserted under N.J.R.E.
803(a)(1)(A). Doing so would have required the State to establish
the reliability of that out-of-court statement by a preponderance
of the evidence at a hearing. Gross, supra, 121 N.J. at 15.
However, the State decided not to pursue that course, and the
conversation with Bashir was never admitted in evidence.
Moreover, the State did not attempt during K.L.'s testimony
to "examine the witness and introduce extrinsic evidence . . .
[to] neutralize the witness' testimony by a prior contradictory
statement." N.J.R.E. 607. Instead, the prosecutor waited until
closing argument to attempt to inform the jury of K.L.'s answers
to Bashir. The court ruled that K.L.'s statement to Bashir could
not be offered for the truth of the matter asserted, but only to
show K.L.'s in-court and out-of-court statements were
inconsistent. Nonetheless, the prosecutor argued in his summation
that the jury should accept K.L.'s statement to Bashir as truthful.
After highlighting K.L.'s prior inconsistent statement, the
prosecutor asserted, "I indicate to you that the inconsistency is
the truth." (Emphasis added).
31 A-4030-14T4
Perhaps this error could have been mitigated by a forceful
curative or limiting instruction. However, the court failed to
instruct the jury on the limited purpose for which the testimony
was admitted. Compounding the error, the court instructed the
jury:
Evidence has been presented showing that at a
prior time, a witness has said something, or
failed to say something which is inconsistent
with the witness's testimony at trial. This
evidence may be considered by you as
substantive evidence, or proof of the truth
of the prior contradictory statement or
omitted statement.
[(Emphasis added.)]
While this instruction properly applied to K.L.'s statements to
the detectives and the grand jury, which were admitted into
evidence following the Gross hearing pursuant to N.J.R.E.
803(a)(1)(A), the court never clarified to the jury that the same
instruction did not apply to K.L.'s out-of-court statement to
Bashir.
C.
Defendant argues the trial court erred by telling the jury
it read back to them T.J.'s "entire" testimony, even though both
the defense and the prosecution advised the court that a portion
of re-cross examination had been omitted. Defendant contends the
omitted testimony was critical because it contradicted the State's
32 A-4030-14T4
theory that T.J. was intimidated by defendant and supported the
defense position that her identification was coerced by law
enforcement. Defendant argues, "The incomplete testimony made the
defense appear to be lying, incompetent or trying to deceive the
jury, as it was in direct contradiction to [d]efendant's closing
argument."
"[T]he response to a jury's request for a readback of
testimony or a replay of a video recording is vested in the
discretion of the trial judge." State v. A.R., 213 N.J. 542, 555-
56 (2013). That said, courts should grant such requests in the
absence of "some unusual circumstance," and they "should not
decline a request simply because it 'would take time.'" State v.
Miller, 205 N.J. 109, 120 (2011) (quoting State v. Wolf, 44 N.J.
176, 185, 186 (1965)). When exercising that discretion, our
Supreme Court has instructed that generally "the entire testimony
requested should be played back — including direct and cross
examination — so that evidence may be considered in its proper
context. Only then can a jury hear both direct proofs as well as
inconsistencies and impeachment material." Id. at 122 (citation
omitted). These "requests are a clear sign that the evidence
sought is important to the deliberative process" and "reflect the
reality that jurors cannot be expected to have perfect recall of
every bit of evidence introduced during a trial." Id. at 120.
33 A-4030-14T4
Here, both the defense and the State agreed that testimony
had been omitted from the read back, and they further agreed on
the substance of that omission. The court was aware it could
access the recorded testimony from the "backup system" with an
order from the Assignment Judge,6 and even acknowledged the State
was willing "to recess this to confirm it." Moreover, the court
recognized the parties "were willing to stipulate" to the omitted
testimony. Under these circumstances, the trial court should have
allowed the parties to enter into a formal stipulation as to what
was omitted, or taken the additional time to procure the backup
CourtSmart recording. Its failure to adopt either of these
alternatives constituted an abuse of discretion.
The court again compounded the error by misadvising the jury,
"That's the entire testimony under the official court record." To
the extent, then, that any of the jurors properly recalled the
6
The secondary recording made by CourtSmart can be accessed if
the primary recording system fails to record any portion of a
court proceeding, provided the Assignment Judge approves the
access and signs off on a form that is publicly available on the
Internet. See New Jersey Administrative Office of the Courts,
Supplement to Directive # 07-10 (Jan. 3, 2011),
https://www.judiciary.state.nj.us/attorneys/assets/directives/di
r_07_10_supp1.pdf; New Jersey Administrative Office of the Courts,
Directive # 07-10 (Aug. 3, 2010),
https://www.judiciary.state.nj.us/attorneys/assets/directives/di
r_07_10.pdf.
34 A-4030-14T4
excluded testimony, they were effectively instructed to disregard
it.
The omitted re-cross examination was significant. The jury
expressly requested T.J.'s entire testimony be read back, but they
did not receive it. On redirect, T.J. stated she did not want to
testify and that she had fear about testifying. When asked whether
she was afraid to go back to the neighborhood, she equivocally
testified she has family there and is "always passing through."
Detective Gregory later testified T.J. was afraid of retaliation
for cooperating with the police. In the testimony omitted from
the read back, T.J. clarified she was afraid of the police because
they threatened to incarcerate her for parking tickets. If the
jury did not consider the re-cross examination, based on the trial
court's erroneous instruction, then it could not properly assess
whether T.J. was afraid to testify because of a threat of violent
retaliation from members of her neighborhood or the fear of police
intimidation. In light of these circumstances, the court abused
its discretion in a manner capable of undermining the jury's
careful consideration of critical evidence.
D.
While perhaps any of the errors we have identified above,
standing alone, may be insufficient to warrant reversal, we agree
with defendant's contention that the cumulative effect of the
35 A-4030-14T4
errors constrains us to reverse his convictions and remand for a
new trial. "[W]here any one of several errors assigned would not
in itself be sufficient to warrant a reversal, yet if all of them
taken together justify the conclusion that defendant was not
accorded a fair trial, it becomes the duty of this court to
reverse." State v. Weaver, 219 N.J. 131, 155 (2014) (quoting
State v. Orecchio, 16 N.J. 125, 134 (1954)).
Summarizing these errors: (1) the court failed to conduct an
evidentiary hearing and make required findings regarding the
admissibility of T.J.'s identification testimony; (2) the
prosecutor's summation improperly asked the jury to consider for
its truth K.L.'s statement to Bashir that was not in evidence and
could not be considered for its truth, and the court failed to
issue a limiting or curative instruction but instead instructed
that prior statements could be considered for their truth; and (3)
the court misadvised the jury regarding significant re-cross
examination of a key prosecution witness of T.J., notwithstanding
the parties' willingness to stipulate to the excluded portion and
their willingness to recess the trial so the omitted testimony
could be retrieved.
Viewed in the aggregate, these errors are significant because
the only evidence linking defendant to the murder came from the
out-of-court statements of those two witnesses who recanted at
36 A-4030-14T4
trial, testified their statements were the product of police
coercion, and were unable to make in-court identifications.
Because the cumulative impact of these errors was capable of
producing an unjust result, we reverse the convictions and remand
for a new trial.
E.
We conclude defendant's remaining arguments do not support
reversal of his convictions and lack sufficient merit to warrant
extended discussion. R. 2:11-3(e)(2). We add the following
limited comments for the sake of completeness.
Defendant argues the trial court failed to properly consider
and apply the Gross factors, resulting in the improper admission
of K.L.'s statement to police. We disagree.
We review a trial court's evidentiary rulings only for abuse
of discretion, and do not set such rulings aside unless it appears
that "there has been a clear error of judgment." State v. J.A.C.,
210 N.J. 281, 295 (2012). We must be convinced that "the trial
court's ruling is so wide of the mark that a manifest denial of
justice resulted." Ibid.
The admission of a prior inconsistent statement of a witness
at trial is governed by N.J.R.E. 803(a)(1). State v. Johnson, 421
N.J. Super. 511, 516 (App. Div. 2011). A prior inconsistent
statement is admissible as substantive evidence when offered by
37 A-4030-14T4
the party who called the witness if it is "contained in a sound
recording or in a writing made or signed by the witness in
circumstances establishing its reliability." Ibid. In order to
determine whether the circumstances provide sufficient indicia of
reliability, a trial court holds a hearing outside of the presence
of the jury to determine, by a fair preponderance of the evidence,
whether the circumstances surrounding the prior statement indicate
the statement's reliability. Id. at 517. In making that
determination, the trial court must consider a number of factors:
(1) the declarant's connection to and interest
in the matter reported in the out-of-court
statement, (2) the person or persons to whom
the statement was given, (3) the place and
occasion for giving the statement, (4) whether
the declarant was then in custody or otherwise
the target of investigation, (5) the physical
and mental condition of the declarant at the
time, (6) the presence or absence of other
persons, (7) whether the declarant
incriminated himself or sought to exculpate
himself by his statement, (8) the extent to
which the writing is in the declarant's hand,
(9) the presence or absence, and the nature
of, any interrogation, (10) whether the
offered sound recording or writing contains
the entirety, or only a portion of the
summary, of the communication, (11) the
presence or absence of any motive to
fabricate, (12) the presence or absence of any
express or implicit pressures, inducement or
coercion for making the statement, (13)
whether the anticipated use of the statement
was apparent or made known to the declarant,
(14) the inherent believability or lack of
believability of the statement, and (15) the
presence or absence of corroborating evidence.
38 A-4030-14T4
[Gross, supra, 121 N.J. at 10.]
Here, the judge examined the fifteen Gross factors in
considerable detail and found they supported the reliability and
credibility of K.L.'s prior statements. Our review of the record
fails to provide us with any reason to disturb the judge's factual
findings, analyses of the Gross factors, or conclusion that K.L.'s
statements were admissible as substantive evidence.
Next, we reject defendant's contention that the trial court
erred in not including the "Multiple Viewings" subsection of Model
Jury Charge (Criminal), Identification: Out-of-Court
Identification Only (2012) in its instructions to the jury. By
its terms, the charge applies "[w]hen a witness views the same
person in more than one identification procedure." Here, T.J.
viewed the same photo array twice as part of a single
identification procedure. Moreover, the parties disputed whether
T.J.'s subsequent identification of defendant was because she lied
the first time or was pressured by police the second time. In
either event, neither party claimed the second identification was
tainted by exposure to multiple viewings of defendant's
photograph; hence, the charge was inapplicable.
Finally, defendant argues the trial court erred in its
response to jury note C-3 because it "focused primarily on physical
evidence" and "testimonial evidence was only touched upon as an
39 A-4030-14T4
afterthought." However, defense counsel encouraged the court to
advise the jury it could create an evidence list from the physical
items it was already given. The court's response was not only
correct but consistent with defense counsel's encouragement.
Defendant cannot complain because he invited the error. State v.
Munafo, 222 N.J. 480, 487 (2015). Additionally, as part of its
response, the court properly reminded the jury that testimony is
considered evidence and offered to read back any portion of the
testimony the jury requested.
Reversed and remanded for a new trial.
40 A-4030-14T4