STATE OF NEW JERSEY VS. THOMAS REED (16-01-0100, 16-01-0108, 16-02-0350, 16-03-0596, 16-06-1161, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any c ourt." 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-5048-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS REED, a/k/a
THOMAS REID, THOMAS
RIED, and DAVID RED,
Defendant-Appellant.
_______________________
Submitted December 12, 2018 – Decided January 15, 2019
Before Judges Koblitz and Ostrer.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment Nos. 16-01-
0100, 16-01-0108, 16-02-0350, 16-03-0596 and 16-06-
1161.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael T. Denny, Assistant Deputy Public
Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Ian D. Brater,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals after a jury convicted him of second-degree robbery,
an attempted theft by threat, N.J.S.A. 2C:15-1(a)(1), third-degree possession of
drugs, N.J.S.A. 2C:35-10(a)(1), second-degree witness tampering, N.J.S.A.
2C:28-5(d), and the disorderly persons offense of hindering apprehension,
N.J.S.A. 2C:29-3(b)(1). On May 12, 2017, the court sentenced him to an
aggregate term of twenty years, with twelve years and nine months of parole
ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.1
He received concurrent terms on three unrelated convictions stemming from
three additional indictments. Defendant appeals, arguing that the court did not
use the current legal standards in analyzing the evidence at the pretrial
eyewitness identification hearing. We agree and remand for further findings
applying the analysis as set forth in State v. Henderson, 208 N.J. 208, 288-94
(2011).
1
He was tried on Indictment Nos. 16-03-0596 and 16-06-1161 in one trial.
Defendant raises no issues relating to his guilty pleas to Indictments No. 16 -02-
0350 and 16-01-0108, or his conviction after trial of Indictment No. 16-01-0100.
His sentences on these convictions were imposed concurrently to the twenty-
year sentence imposed after this trial.
A-5048-16T3
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Defendant was convicted of a robbery near a fried chicken fast food
restaurant at around 11:00 p.m. The victim told the police that he saw a man in
the restaurant who later attempted to steal the victim's wallet when he was
walking home with his food. The robber asked the victim if he had stolen a
friend's bicycle, then grabbed the victim and demanded his wallet, while
threatening him. The victim refused to surrender his wallet and defendant fled.
The victim described the man as a "black male" who was "wearing a black hat
. . . gray sweater, gray pants, [and] . . . riding a bicycle." A short time later, the
police stopped defendant, who matched the description given and had two
packets of heroin on his person, and brought the victim to see defendant. The
victim stayed in the back seat of the police car while defendant, who was
handcuffed, walked in front of the car. The victim identified defendant as the
robber.
The victim received three letters from defendant offering to pay him $50
if he would recant his testimony. Defendant testified that he and the victim had
a dispute over payment for a bicycle, he did not rob the victim, and he sent the
letters in an effort to convince the victim to tell the truth.
Defendant argues on appeal:
POINT I: THE TRIAL COURT ERRED WHEN IT
APPLIED THE MANSON/MADISON
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FRAMEWORK FOR ASSESSING THE
EYEWITNESS IDENTIFICATION INSTEAD OF
THE UPDATED HENDERSON PROCEDURE.
POINT II: THE DISCRETIONARY EXTENDED-
TERM SENTENCE SHOULD BE VACATED OR
REDUCED BECAUSE IT WAS MANIFESTLY
EXCESSIVE AND PROCEDURALLY DEFECTIVE.
I. Identification analysis.
At the pre-trial Wade2 hearing, the court mistakenly used the
Manson/Madison3 rather than the Henderson test to analyze the evidence
surrounding the showup identification. The court stated, "I find that the
identification made by [the victim] is reliable and all of the factors under
Madison have been met." The Manson/Madison test required the defense to
prove by a preponderance of the evidence that the police procedures were so
"impermissibly suggestive" they resulted in a "very substantial likelihood of
irreparable misidentification." Madison, 109 N.J. at 232 (quoting Simmons v.
United States, 390 U.S. 377, 384 (1968)). The court applied the five
Manson/Madison factors.
These include the opportunity of the witness to view the
criminal at the time of the crime, the witness' degree of
2
United State v. Wade, 388 U.S. 218, 242 (1967).
3
Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977); State v. Madison, 109 N.J.
223, 244-45 (1988).
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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. Against these factors is to be weighed
the corrupting effect of the suggestive identification
itself.
[Manson, 432 U.S. at 114.]
See also Madison, 109 N.J. at 239-40.
In Henderson, the Supreme Court found that the Manson/Madison test did
"not provide a sufficient measure for reliability," it did not deter "suggestive
police practices," and it "overstate[d] the jury's innate ability to evaluate
eyewitness testimony." 208 N.J. at 285-87. Henderson requires a more in-depth
analysis. See id. at 288.
The Court in Henderson discussed "system and estimator variables." Id.
at 288-89.
Two principal changes to the current system are needed
. . . . [F]irst, the revised framework should allow all
relevant system and estimator variables to be explored
and weighed at pretrial hearings when there is some
actual evidence of suggestiveness;
....
[T]o obtain a pretrial hearing, a defendant has the initial
burden of showing some evidence of suggestiveness
that could lead to a mistaken identification. . . . [T]he
State must then offer proof to show that the proffered
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eyewitness identification is reliable—accounting for
system and estimator variables . . . .
[Ibid. (emphasis in original).]
System variables include whether the police "warn[ed] the witness that
the suspect may not be the perpetrator and that the witness should not feel
compelled to make an identification[.]" Id. at 290. Estimator variables include:
whether "the event involve[d] a high level of stress"; whether "a visible weapon
[was] used during a crime of short duration"; how close the witness and
perpetrator were to each other; "[h]ow much time elapsed between the crime and
the identification"; and the level of confidence expressed by the witness "at the
time of the identification before receiving any feedback or other information[.]"
Id. at 291-92.
Here, the police did not instruct the victim prior to the showup that
defendant "may or may not be the culprit." Id. at 261. The Supreme Court stated
in Henderson:
As with lineups, showup administrators should instruct
witnesses that the person they are about to view may or
may not be the culprit and that they should not feel
compelled to make an identification. That said, lineups
are a preferred identification procedure because we
continue to believe that showups, while sometimes
necessary, are inherently suggestive.
[Ibid.]
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Pointing to studies on showup identifications, the Court noted that "[e]xperts
believe the main problem with showups is that—compared to lineups—they fail
to provide a safeguard against witnesses with poor memories or those inclined
to guess, because every mistaken identification in a showup will point to the
suspect. In essence, showups make it easier to make mistakes." Id. at 260-61.
Defendant seeks a new trial, or, in the alternative, "a new hearing so that
the trial court may apply the correct law." We agree with defendant that a
remand is warranted. The court should apply the Henderson standards to the
evidence adduced at the pre-trial hearing, without the need to conduct a new
evidentiary hearing.
II. Sentence.
Defendant argues also that, although he was indisputably eligible for a
discretionary extended term pursuant to the persistent offender statute, N.J.S.A.
2C:44-3(a), the court improperly considered his record when imposing an
extended term and improperly considered his prior record again when finding
aggravating factor six. N.J.S.A. 2C:44-1(a)(6).
An appellate court applies "a deferential standard of review to the
sentencing court's determination, but not to the interpretation of a law." State
v. Bolvito, 217 N.J. 221, 228 (2014). "Appellate review of sentencing decisions
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is relatively narrow and is governed by an abuse of discretion standard." State
v. Blackmon, 202 N.J. 283, 297 (2010). An appellate court may not "substitute
[its] judgment for those of our sentencing courts." State v. Case, 220 N.J. 49,
65 (2014).
The court found aggravating factors three, the risk of reoffending, six,
defendant's prior criminal record, and nine, the need to deter defendant and
others. N.J.S.A. 2C:44-1(a)(3), (6) and (9). The court focused on defendant's
lengthy, thirty-two-year criminal record. Defendant was forty-six years old at
the time of sentencing. He had many more convictions than those necessary to
impose an extended term. The court did not abuse its discretion in imposing a
fifteen-year extended term subject to NERA for the robbery conviction.
Reversed and remanded for a reevaluation of the evidence produced at the
Wade hearing applying the Henderson criteria. If the identification is deemed
inadmissible, defendant will be afforded a new trial. If the court finds the
showup identification to be admissible, no new trial is necessary
Reversed and remanded. We do not retain jurisdiction.
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