State of New Jersey v. Larry R. Henderson

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5482-11T3
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
October 17, 2013
v.
APPELLATE DIVISION
LARRY R. HENDERSON,
Defendant-Appellant.
______________________________________________________
Argued September 17, 2013 – Decided October 17, 2013
Before Judges Fisher, Espinosa and Koblitz.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 03-09-3383.
Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Sanders, of counsel and on the
brief).
Deborah Bartolomey, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Ms. Bartolomey, of counsel and on the
brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
In the wake of the Supreme Court's landmark decision in the
earlier appeal in this matter, State v. Henderson, 208 N.J. 208(2011), we consider defendant's appeal of the trial court's more
recent refusal to exclude eyewitness identification evidence.
In examining the issues, we (1) briefly outline the relevant
factual circumstances and earlier proceedings, then (2) describe
those matters not before us,1 and finally (3) review the trial
court's decision at the most recent Wade hearing,2 which was
based on the test devised by the Supreme Court in the earlier
appeal that replaced the test utilized in this State since at
least State v. Madison, 109 N.J. 223 (1988).
I
Rodney Harper was shot in Camden in the early morning hours
of January 1, 2003. Harper and James Womble were drinking and
smoking crack that evening at a friend's apartment. Harper left
prior to midnight and returned sometime between 2:00 and 2:30
a.m. Soon after, two men forcibly entered the apartment.
Womble knew one of them, codefendant George Clark, who arrived
to collect money from Harper. Womble did not know the other
intruder.
1
Judges Espinosa and Koblitz do not join in Section II of this
opinion.
2
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.
2d 1149 (1967).
2 A-5482-11T3
Harper and Clark went into another room, while the unknown
intruder kept Womble away at gunpoint in a hallway. Womble
heard an argument in the other room and then a gunshot. As
Clark and his confederate departed, Clark warned Womble not to
"rat [him] out, I know where you live." Henderson, supra, 208
N.J. at 221. Harper died on January 10 from a gunshot wound to
the chest.
Womble was questioned by Camden County Detective Luis Ruiz
and Investigator Randall MacNair on January 11. As the Supreme
Court recounted, Womble told them "he was in the apartment when
he heard two gunshots outside, that he left to look for Harper,
and that he found Harper slumped over in his car in a nearby
parking lot, where Harper said he had been shot by two men he
did not know." Ibid.
In an interview the following day, the officers confronted
Womble with inconsistencies in his prior statement. Womble
responded that he was in fear of retaliation but decided to
"come clean." He told the officers of the intrusion and how one
culprit held him at gunpoint while the other argued with and
eventually shot Harper.
On January 14, the officers had Womble view a photographic
array. The nature of that identification has been thoroughly
described in the Supreme Court's opinion, id. at 222-25, as well
3 A-5482-11T3
as our own, State v. Henderson, 397 N.J. Super. 398, 406-07
(App. Div. 2008). Essentially, in initial compliance with the
Attorney General's Guidelines for photographic identifications,3
the array was presented to Womble by Detective Thomas Weber, who
was not investigating the case.4 Weber properly presented Womble
with eight photographs, one of which depicted defendant, and the
others were of African-American males of the same approximate
age and appearance as defendant. 208 N.J. at 222. The
photographs were also properly shown to Womble one by one. As
the Court observed, "Womble quickly eliminated five . . .
reviewed the remaining three, discounted one more," and then
said "he 'wasn't 100 percent sure of the final two pictures.'"
Id. at 223.
Weber informed the other officers that Womble had narrowed
it down to two photographs but could not make a final
identification. MacNair and Ruiz then entered the interview
room and spoke to Womble; Weber was not present during this
discussion. In our earlier opinion, we summarized what the
3
Office of the Attorney General, Attorney General Guidelines for
Preparing and conducting Photo and Live Lineup Identification
Procedures (2001).
4
The Attorney General Guidelines direct that primary
investigators should not administer photo or live lineup
identification procedures "to ensure that inadvertent verbal
cues or body language do not impact on a witness." Id. at 222
(citations omitted).
4 A-5482-11T3
testimony at the earlier Wade hearing revealed about what
happened when the investigating officers spoke to Womble:
M[a]cNair testified . . . that he felt
Womble was "holding back from us," and so he
and Ruiz "wanted to go in and to clarify and
be clear on what he was saying to us." He
also testified that Womble was concerned
about the safety of his elderly father
because the second gunman was still at
large. M[a]cNair testified that, in order
to put Womble's mind at ease, he "told him
to focus, to calm down, to relax and that
any type of protection that [he] would need,
any threats against [him] would be put to
rest by the Police Department." Womble then
responded that he could make an
identification. With that, M[a]cNair and
Ruiz left the room.
Officer Weber re-entered the room and again
showed Womble the array. This time,
according to Weber, Womble "slammed his hand
down on the table and said, '[t]hat's the
mother fucker there,'" thus positively
identifying defendant as one of the men
involved in the shooting of Harper.
[397 N.J. Super. at 406.]
The original trial judge conducted a Wade hearing but
concluded the procedure was not suggestive and permitted the
State to use at trial evidence of Womble's out-of-court
identification of defendant as the man who held him at gunpoint
in the hallway while Clark shot Harper in another room.
5 A-5482-11T3
At trial, as the Supreme Court observed, "[t]he primary
evidence against defendant . . . was Womble's identification[5]
and Detective MacNair's testimony about defendant's post-arrest
statement." Id. at 226 (in a footnote at the conclusion of this
sentence, the Court observed that Clark's recorded statement,
which "placed Henderson at the apartment but largely exculpated
him," was also played for the jury).
Defendant was acquitted of murder and aggravated
manslaughter but convicted of reckless manslaughter, N.J.S.A.
2C:11-4(b)(1), and other offenses, and later sentenced to an
aggregate eleven-year prison term subject to a nearly six-year
period of parole ineligibility, pursuant to the No Early Release
Act, N.J.S.A. 2C:43-7.2.
Defendant thereafter appealed, and we determined that the
trial judge misapplied the Manson/Madison test6 for determining
5
Womble also made an in-court identification of defendant. As
the Court noted, "Womble had no difficulty identifying defendant
at trial eighteen months later." Id. at 225. Indeed, there is
hardly a more suggestive identification procedure than that
which occurs at trial, where the only likely person to be
identified is the one seated next to defense counsel. See
Madison, supra, 109 N.J. at 243; see also Perry v. New
Hampshire, __ U.S. __, __, 132 S. Ct. 716, 727, 181 L. Ed. 2d
694, 710 (2011).
6
Both then and now the federal constitutional rights triggered by
such circumstances are governed by the procedure outlined in
Manson v. Braithwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d
140 (1977). Until Henderson's prior appeal, this same procedure
(continued)
6 A-5482-11T3
the reliability of an out-of-court eyewitness identification –
because the trial judge failed to conclude that the
identification procedure was impermissibly suggestive and, thus,
failed to analyze the Manson/Madison reliability factors in
light of the corrupting effect of the suggestive process – and
we remanded for a new Wade hearing before a different judge.
Henderson, supra, 397 N.J. Super. at 416-17. We also held that
if the new hearing required exclusion of the out-of-court
identification, then the trial judge was to determine whether
the witness could make an in-court identification from an
independent source. Id. at 417. And, we lastly concluded that
"if the Wade or taint hearings require the suppression of
evidence then defendant is entitled to a new trial, but not
otherwise." Ibid.
The Supreme Court granted certification, State v.
Henderson, 195 N.J. 521 (2008), and, later, summarily remanded
to the trial court for a plenary hearing "to consider and decide
whether the assumptions and other factors reflected in the two-
part Manson/Madison test, as well as the five factors outlined
in those cases to determine reliability, remain valid and
(continued)
was adopted for purposes of defining the limits of our state
constitution in this regard. See Madison, supra, 109 N.J. at
233, and cases cited therein.
7 A-5482-11T3
appropriate in light of recent scientific and other evidence."
Henderson, supra, 208 N.J. at 306. The Court appointed Judge
Geoffrey Gaulkin, P.J.A.D. (retired and temporarily assigned on
recall) to preside at the remand hearing. Id. at 228.
On the basis of evidence adduced at the remand hearing
conducted by Judge Gaulkin, the Court rendered its landmark
decision, significantly altering the methodology for considering
the role of suggestive police identification procedures and
ascertaining the reliability of eyewitness identifications. Id.
at 288-93. At the same time, the Court considered the reach of
its decision and concluded that the new rule would apply only to
future cases "except for defendant Henderson" and the defendant
in a companion case. Id. at 302. As for Henderson, the Court
held he was entitled to "an expanded hearing consistent with the
principles outlined" in its decision. Id. at 300. The Court
further mandated that "[i]f the trial court finds that the
identification should not have been admitted, then the parties
should present argument as to whether a new trial is needed,"
and that "[i]f [the out-of-court] identification was properly
admitted, then defendant's conviction should be affirmed."
Ibid.
8 A-5482-11T3
In accordance with the Court's mandate, Judge Samuel D.
Natal conducted a plenary hearing,7 at which the State called
MacNair, Ruiz and Weber to testify; defendant called Assistant
Prosecutor Christine Shah and Womble as witnesses. Based on his
view of this evidence, Judge Natal concluded that the
application of the new test announced in Henderson did not
require exclusion of the out-of-court identification.
Defendant again appeals, arguing the judge failed to follow
Henderson's edicts in the following ways:
A. The Trial Court Failed to Find Compliance
With Various System Variables By Clear And
Convincing Evidence.
B. The Trial Court Failed to Properly Find
And Weigh The Effect Of Various Estimator
Variables.
1. The Trial Court Erred In Its
Analysis Of the Duration Estimator
Variable.
2. The Trial Court Erred By
Failing To Find The Weapon Focus
Estimator Variable.
3. The Trial Court Erred In Its
Analysis Of The Stress Estimator
Variable.
7
In our earlier decision, we mandated the conducting of a new
Wade hearing by a different judge. 397 N.J. Super. at 416-17.
Because the original trial judge had retired in the interim, the
Supreme Court recognized that particular issue had been rendered
moot. 208 N.J. at 300 n.12.
9 A-5482-11T3
4. The Trial Court Erred In Its
Analysis Of The Distance And
Lighting Estimator Variables.
5. The Trial Court Erred In Its
Analysis Of The Intoxication
Estimator Variable.
6. The Trial Court Erred In Its
Analysis Of The Memory Decay
Estimator Variable.
C. Even If the Trial Court Found Compliance
With Various System Variables By Clear And
Convincing Evidence, And Even If The
Findings As To The Various Estimator
Variables Pass Muster, The Trial Court
Failed [To] Properly Weigh The Totality Of
The Effect Of The Various Estimator
Variables In Conjunction With The System
Variables.
We reject these arguments and affirm.
II
Before turning to the issues raised by defendant in this
appeal, this section of this opinion, which as noted in footnote
1 Judges Espinosa and Koblitz do not join in, makes note, for
the sake of completeness, of two issues: one that is not before
us and another not open for question.
A
In Henderson, the Court observed it had only altered "the
State's framework for evaluating eyewitness identification
evidence," id. at 287 (emphasis added), recognizing it had "no
authority, of course, to modify Manson," id. at 287 n.10. This
10 A-5482-11T3
ostensibly left open to defendant the opportunity to continue to
seek exclusion of the eyewitness identification evidence
pursuant to the unaltered federal Manson test.8 Naturally, if
Henderson provides greater state constitutional rights to the
accused than offered by federal constitution principles, the
difference between the two tests is inconsequential. But the
assumption that Henderson grants greater individual rights than
does Manson is not as obvious as it has been in other
circumstances where our Supreme Court recognized more expansive
state constitutional rights. See, e.g., Lewis v. Harris, 188
N.J. 415, 456-57 (2006); State v. McAllister, 184 N.J. 17, 32-33
(2005); State v. Hempele, 120 N.J. 182, 202-03 (1990); State v.
Hunt, 91 N.J. 338, 346-47 (1982).
Defendant argues that the Manson test, as previously
described by our Supreme Court, placed the burden of persuasion
for pretrial screening of suggestive eyewitness identifications
8
The Supreme Court's mandate does not foreclose the pursuit of
this federal argument. The Court's judgment in Henderson
"modif[ied] and affirm[ed] the judgment of the Appellate
Division." Id. at 304. Our judgment had reversed the trial
judge's denial of exclusion of the identification evidence
without distinction between defendant's federal and state
constitutional rights because there was then no distinction
between the legal framework applicable to those rights. The
Supreme Court in Henderson did not reverse our judgment, which
reversed the trial court, so it may be assumed the federal
avenue remained open to defendant following the Supreme Court's
mandate regarding the new state constitutional framework.
11 A-5482-11T3
on the prosecution. See Madison, supra, 109 N.J. at 245 (citing
Wade, supra, 388 U.S. at 240, 87 S. Ct. at 1939, 18 L. Ed. 2d at
1164-65, in describing the prosecution's "formidable" burden of
"proving by clear and convincing evidence" that any
identifications of the defendant, whether in or out of court,
"had a source independent of the police-conducted identification
procedures"), and the Attorney General has not argued to the
contrary.9
Certainly a shift in the burden of persuasion from the
prosecution to the defense in the pretrial screening process
could form the basis for a legitimate argument that the
Henderson state constitutional framework makes less likely an
exclusion of out-of-court identification evidence than does the
existing federal framework. If that were the case, then it
would have behooved defendant to seek suppression pursuant to
the federal test as well. But the premise for such an argument
is not apparent. Henderson held that, under the new framework,
the ultimate burden of persuasion in the pretrial screening
process "remains" on the defendant, Henderson, supra, 208 N.J.
9The matter is not entirely free from doubt. The Supreme Court
of the United States – from Wade to Perry – has consistently
omitted a description of the nature of the burden of persuasion
regarding whether suggestiveness has corrupted the reliability
of an out-of-court identification or upon whom that burden
rests.
12 A-5482-11T3
at 289, a word which strongly suggests the Court did not believe
its new framework altered the existing Manson allocation of the
burden of persuasion.
In any event, at oral argument in this appeal, defendant
conceded he is not arguing the trial judge erred in denying
exclusion pursuant to federal constitutional principles10 and, in
fact, he has not briefed it.11 Accordingly, that question is not
before us.
B
Second, as we have already observed, the Supreme Court
concluded that defendant was entitled to the benefit of the new
rule, id. at 302, which not only altered the method for pretrial
screening of eyewitness identifications, but also mandated
modified jury instructions to include the various new factors
relevant in assessing the reliability of eyewitness
10
The trial judge, in fact, did not analyze the evidence pursuant
to the Manson standard and it appears defendant did not urge
that he do so. An argument not presented in the trial court is
not cognizable on appeal. Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973).
11
At oral argument, defendant suggested Perry v. New Hampshire
somehow foreclosed his federal argument. Perry, however,
determined only that federal constitutional precepts do not
require pretrial screening for reliability where the suggestive
circumstances were not arranged by law enforcement officers. __
U.S. at __, 132 S. Ct. at 730, 181 L. Ed. 2d at 713. This
exception is not implicated here, and there is nothing in the
Court's opinion in Perry that would suggest the federal Manson
test has been altered or modified in any way.
13 A-5482-11T3
identification evidence, id. at 288. The Court's ultimate
judgment as applied to defendant, however, provided him only
with the benefit of the new pretrial screening approach. That
is, the Court held defendant would only be permitted to seek a
new trial if he succeeded in having the identification evidence
excluded at the plenary hearing; in the event the trial judge
held the identification evidence was properly admitted, the
Court commanded that "defendant's conviction should be
affirmed." Id. at 300. Defendant was not given the benefit of
the new rule regarding the manner in which juries should be
instructed on reliability because his conviction – with the
denial of his application for exclusion of identification
evidence at the new expanded pretrial hearing – must be affirmed
pursuant to the Court's clear and unambiguous mandate. See
Flanigan v. McFeely, 20 N.J. 414, 420 (1956) (courts have "a
peremptory duty to obey" a higher court's mandate "precisely as
it is written").
Although defendant suggests the incongruity of being given
the benefit of a rule – crafted by the Court in the very appeal
he pursued – that inevitably passes the reliability of
identification evidence to the jury but denies him a new trial
absent a favorable ruling at the plenary hearing, the Court's
holding is unmistakable in that regard, and defendant recognizes
14 A-5482-11T3
as much. Accordingly, if the trial judge properly refused to
exclude the eyewitness identification evidence, defendant's
conviction must be affirmed even though he was convicted on the
basis of jury instructions that did not reflect the Court's new
approach toward eyewitness identification evidence.
III
In arguing the trial judge erroneously refused to exclude
the eyewitness identification evidence in question, defendant
presents three chief arguments. Defendant initially claims the
new rule imposes on the State the burden of ultimately showing
the evidence is reliable by "clear and convincing evidence." He
then argues that the burden placed on defendant in the new
framework is not adequately defined. And defendant lastly
argues the trial judge did not "properly find and weigh" the
effect of the various estimator variables discussed in the
Supreme Court's opinion.
A
Defendant urges the imposition of a burden on the State to
demonstrate the reliability of an eyewitness identification in
the pretrial screening process by "clear and convincing
evidence," but that is simply not what the Supreme Court
15 A-5482-11T3
mandated. Instead, the Court described the new framework in the
following way:
First, to obtain a pretrial hearing, a
defendant has the initial burden of showing
some evidence of suggestiveness that could
lead to a mistaken identification. That
evidence, in general, must be tied to a
system – and not an estimator – variable.
Second, the State must then offer proof to
show that the proffered eyewitness
identification is reliable – accounting for
system and estimator variables – subject to
the following: the court can end the
hearing at any time if it finds from the
testimony that defendant's threshold
allegation of suggestiveness is groundless.
. . .
Third, the ultimate burden remains on the
defendant to prove a very substantial
likelihood of irreparable misidentification.
To do so, a defendant can cross-examine
eyewitnesses and police officials and
present witnesses and other relevant
evidence linked to system and estimator
variables.
Fourth, if after weighing the evidence
presented a court finds from the totality of
the circumstances that defendant has
demonstrated a very substantial likelihood
of irreparable misidentification, the court
should suppress the identification evidence.
If the evidence is admitted, the court
should provide appropriate, tailored jury
instructions. . . .
[Id. at 288-89 (emphasis added; citations
omitted).]
In short, defendant must first show "some evidence" of
suggestiveness to obtain a plenary hearing, following which the
16 A-5482-11T3
State must "offer proof" of reliability while the "ultimate
burden remains" on defendant to "prove a very substantial
likelihood of irreparable misidentification." Ibid. It is not
possible to rationally conclude that the Court intended to
saddle the State with the burden of proving reliability by
"clear and convincing evidence," a phrase which once was
recognized to be part of the former pretrial screening test, see
Madison, supra, 109 N.J. at 245,12 but nowhere appears in the
Court's cogent and unambiguous description of the new framework.
The only burden placed on the State would appear to be that
referred to in the second part of the new framework: the State
must "offer proof to show that the proffered eyewitness
identification is reliable." Henderson, supra, 208 N.J. at 289.
We would equate this burden to "offer proof" with the "burden of
producing evidence" described in N.J.R.E. 101(b)(2), which is
sometimes referred to as the "burden of going forward." The
burden of producing evidence has been described by the Court "as
so light as to be little more than a formality." State v.
Segars, 172 N.J. 481, 494 (2002) (internal quotations and
12
Defendant also urges, as analogous, the "clear and convincing"
burden imposed on the State with regard to the pretrial
screening of statements by tender-years declarants, State v.
Michaels, 136 N.J. 299, 309 (1994), and the pretrial screening
of evidence offered pursuant to the theory of inevitable
discovery, State v. Sugar, 100 N.J. 214, 238-40 (1985).
17 A-5482-11T3
citations omitted). Such a burden is met "whether or not the
evidence produced is found to be persuasive." Ibid. All that
is necessary to sustain this burden is that the party so saddled
provide evidence on the issue that is germane to the inquiry
with sufficient clarity so that the opposing party has a full
and fair opportunity to respond. Cf., Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E.
101(b)(2) (2013). The party upon whom this burden is placed
cannot remain silent and still prevail. Segars, supra, 172 N.J.
at 495. We assume this is the burden the Court imposed on the
State in the second part of the new framework. Of course,
nothing has altered the State's burden of proving at trial the
identity of the accused as the person who committed the charged
offense beyond a reasonable doubt.
We reject defendant's forceful contention that the burden
of persuasion rests on the State; the Court very clearly held
that burden "remains" with defendant. Henderson, supra, 208
N.J. at 289.
B
Defendant also expresses uncertainty about the degree to
which defendant is required to persuade a trial court at a Wade
hearing.
18 A-5482-11T3
For purposes of an application to exclude eyewitness
identification evidence based on state constitutional grounds,
it is what the Court said it is: a defendant must prove "a very
substantial likelihood of irreparable misidentification." 208
N.J. at 289. This phrase was not newly crafted. It was uttered
in this context by the Supreme Court of the United States more
than forty years ago when defining the application of the due
process clause to eyewitness identification evidence. See,
e.g., Simmons v. United States, 390 U.S. 377, 384-85, 88 S. Ct.
967, 971, 19 L. Ed. 2d 1247, 1253-54 (1968).
It is conceivable our Supreme Court viewed the process as
similar to that routinely undertaken by trial judges in applying
N.J.R.E. 403 in determining whether relevant evidence should be
excluded because "its probative value is substantially
outweighed" by the risks delineated in that evidence rule. In
similar language, Manson described the federal process for
excluding eyewitness identification evidence as requiring a
determination of whether a witness's ability to make an accurate
identification is "outweighed by the corrupting effect" of law
enforcement suggestion. 432 U.S. at 114-16, 97 S. Ct. at 2254,
53 L. Ed. 2d at 155; see also Perry, supra, __ U.S. at __, 132
S. Ct. at 725, 181 L. Ed. 2d at 707-08.
19 A-5482-11T3
In any event, it is not our place to describe this burden
in other terms, such as by "a preponderance of the evidence" or
by "clear and convincing evidence," since the Supreme Court
chose not to describe the burden beyond the language contained
in its opinion.
C
Our Supreme Court's decision to alter both the framework
for pretrial screening eyewitness identification evidence and
the manner in which juries are to be instructed to consider such
evidence was based on its recognition that research has revealed
that human memory is "complex," Henderson, supra, 208 N.J. at
245, "malleable," id. at 247, and subject to "an array of
variables [which] can affect and dilute memory and lead to
misidentifications," ibid. Scientific studies, upon which the
Henderson Court relied, "divide[] those variables into two
categories: system and estimator variables." Ibid. The former
are those within the control of the criminal justice system,
such as police identification procedures. Ibid. The latter are
"related to the witness, the perpetrator, or the event itself –
like distance, lighting, or stress – over which the legal system
has no control." Ibid.
Defendant argues that the trial judge did not properly find
and weigh various estimator variables, including those relating
20 A-5482-11T3
to the duration of the encounter, the involvement of a weapon,
stress, distance and lighting, intoxication, and memory decay.
We reject this argument because Judge Natal's comprehensive
written decision reveals that he thoroughly considered and
weighed these factors. The judge found that: Womble had an
opportunity to observe defendant for "several minutes," later
found to be five minutes, despite the fact that a gun was
pointed at him; the event "was most likely highly stressful";
and Womble was within two feet of defendant during the encounter
in an area sufficiently lit by a lamp in the hallway. In
addition, the judge found an absence of evidence "to show what
effect [the use of] crack cocaine and alcohol would have had" on
Womble "to prevent him from accurately observing" defendant. In
fact, the judge determined that, at the time of the shooting,
Womble was "regularly using drugs and that when he used drugs"
he was able to "do anything, including driving and going to
work." The judge also found that, on the night of the shooting,
Womble was playing chess with Harper when the intrusion
occurred, thus suggesting his faculties were not unduly
impaired. In addition, the judge found that, two weeks after
the shooting, Womble was also able to show police the location
of a shell casing he had tossed away on the night of the
shooting, further demonstrating his ability to retrieve his
21 A-5482-11T3
memories of the evening two weeks earlier.13 And, in further
considering memory decay, the judge determined that Womble
selected defendant's photograph from an array two weeks after
the shooting – what the judge described as "a relatively short
span between the incident and the identification."
These findings are adequately supported by the evidence
adduced at the hearing and, therefore, command our deference,
State v. Robinson, 200 N.J. 1, 15 (2009), as does the judge's
ultimate conclusion – based upon his sifting through and
weighing the multitude of facts and circumstances – that
defendant failed to demonstrate a very substantial likelihood of
misidentification. An appellate court must refrain from second
guessing a judge's factual conclusion when all that is before
the court is what is contained in a static record. We find no
reason to disturb the experienced trial judge's findings and
conclusions.
We, thus, affirm the order denying suppression and the
judgment of conviction.
Affirmed.
13
As noted in our earlier opinion, Womble had told police that on
the night of the shooting he had "retrieved from the [apartment]
floor a shell casing, which he later threw into the street."
397 N.J. Super. at 405.
22 A-5482-11T3