STATE OF NEW JERSEY VS. TAJMIR D. WYLES(16-06-1621, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3471-16T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
TAJMIR D. WYLES,
Defendant-Respondent.
Submitted October 3, 2017 – Decided October 13, 2017
Before Judges Yannotti and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 16-06-1621.
Mary Eva Colalillo, Camden County Prosecutor,
attorney for appellant (Linda A. Shashoua,
Assistant Prosecutor and Jamie L. Hutchinson,
Assistant Prosecutor, of counsel and on the
brief).
Helmer, Conley & Kasselman, PA, attorneys for
respondent (Jack J. Lipari, of counsel and on
the brief).
PER CURIAM
Defendant Tajmir Wyles is charged with murder in connection
with the shooting death of Nicholas Rowser. By leave granted, the
State appeals from that portion of a March 10, 2017 order granting
defendant's motion to suppress the out-of-court identification of
defendant by A.T.,1 a witness to the incident. The motion judge
concluded that: A.T. lacked credibility; the State failed to
establish that A.T. was familiar with defendant prior to the
shooting; and defendant met his ultimate burden of showing a very
substantial likelihood of misidentification. Finding no basis to
disturb these determinations, we affirm.
I.
In State v. Henderson, 208 N.J. 208, 288-99 (2011), our
Supreme Court effected a "sea change . . . in the methodology for
examining suggestive police identification procedures and
ascertaining the reliability of resulting out-of-court
identifications." State v. Smith, 436 N.J. Super. 556, 564 (App.
Div. 2014). Under prior law, there was a two-step test for
determining the admissibility of identification evidence; it
required the court to decide whether the identification procedure
in question was impermissibly suggestive and, if so, whether the
objectionable procedure resulted in a "very substantial likelihood
1
We use initials in this opinion to protect the privacy of the
witnesses to the crimes with which defendant is charged. The
March 10, 2017 order denied defendant's motion to suppress the
out-of-court identification of defendant by a second witness, J.I.
That identification is not at issue in this appeal.
2 A-3471-16T4
of irreparable misidentification." State v. Madison, 109 N.J.
223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377,
384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). To
assess reliability, the court considered five factors: (1) the
opportunity of the witness to view the criminal at the time of the
crime; (2) the witness's degree of attention; (3) the accuracy of
the witness's prior description of the criminal; (4) the level of
certainty demonstrated at the time of the confrontation; and (5)
the time between the crime and confrontation. Id. at 239-40.
These reliability factors were then balanced against the
"corrupting effect" of the suggestive identification. Henderson,
supra, 208 N.J. at 238 (quoting Manson v. Braithwaite, 432 U.S.
98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).
In Henderson, the Court relied upon current social science
research and studies to expand the number of factors informing the
reliability of identification evidence and to provide trial courts
guidance and explanation as to how to analyze those factors.
Specifically, the Court identified eight "system variables,"
defined as characteristics of the identification procedure over
which law enforcement has control. Id. at 248-61. These variables
are: 1) whether a "blind" or "double blind" administrator is used;
(2) whether pre-identification instructions are given; (3) whether
the lineup is constructed of a sufficient number of fillers that
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look like the suspect; (4) whether the witness is given feedback
during or after the procedure; (5) whether the witness is exposed
to multiple viewings of the suspect; (6) whether the lineup is
presented sequentially versus simultaneously; (7) whether a
composite is used; and (8) whether the procedure is a "showup."
Ibid.
The Court also identified ten "estimator variables," defined
as factors beyond the control of law enforcement which relate to
the incident, the witness, or the perpetrator. Id. at 261. These
variables are: (1) the stress level of the witness when making the
identification; (2) whether a visible weapon was used during the
crime; (3) the amount of time the witness viewed the suspect; (4)
the lighting and the witness's distance from the perpetrator; (5)
the witness's age; (6) whether the perpetrator wore a hat or
disguise; (7) the amount of time that passed between the event and
the identification; (8) whether the witness and perpetrator were
different races; (9) whether the witness was exposed to co-witness
feedback; and (10) the speed with which the witness makes the
identification. Id. at 261-72.
Henderson prescribed a four-step procedure for determining
admissibility of identification evidence. Id. at 288-89. First,
to obtain a hearing, defendant has the burden of producing some
evidence of suggestiveness, tied to a system rather than estimator
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variable, that could lead to a mistaken identification. Ibid.
Second, the State must offer proof the identification is reliable,
"accounting for system and estimator variables[.]" Id. at 289.
Third, the burden remains on the defendant "to prove a very
substantial likelihood of irreparable misidentification." Ibid.
And, fourth, if defendant sustains his burden, the identification
evidence should be suppressed; if defendant does not sustain his
burden, the evidence should be admitted with "appropriate,
tailored jury instructions[.]" Ibid.
II.
It is in the context of this legal landscape that we review
the motion record. On February 7, 2016, Rowser was fatally shot
on Morton Street in Camden. At approximately 3:30 p.m. that day,
A.T. exited her apartment on Morton Street and headed across the
street toward a friend's vehicle. There, A.T. noticed an African
American man with dreadlocks proclaim "they fucking robbed me."
Approximately five to ten minutes later, A.T. heard multiple
gunshots, although she did not actually observe the shooting. She
then saw the same African American man run from the scene. A.T.
informed a nearby police officer she believed the suspected shooter
had dreadlocks.
The next day, detectives interviewed A.T. at the Camden County
Prosecutor's Office (CCPO). A.T. stated her boyfriend, J.I., told
5 A-3471-16T4
her the shooter's nickname was "Fatboy." A.T. provided a
description of the suspect, approximating his weight, height,
length of hair, and the clothing he was wearing. The detectives
showed A.T. a single photograph of defendant, and A.T. identified
him as the shooter.
Defendant was thereafter indicted for first-degree murder,
N.J.S.A. 2C:11-3a(1)(2), and second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4a. Defendant moved to
suppress A.T.'s out-of-court identification. Relying on State v.
Farrow, 61 N.J. 434 (1972), cert. denied, 410 U.S. 963, 93 S. Ct.
1396, 35 L. Ed. 2d 602 (1973), the State argued that A.T. generally
knew defendant from the neighborhood and accordingly her
identification of defendant from a single photograph was merely
confirmatory. In rejecting this contention, the motion judge
indicated he could not "square the proposition that [A.T.] actually
knew [defendant] with her clear statement . . . where she said
that he was not a familiar face." The judge added: "She wouldn't
have said he's not a familiar face if she knew him, it seems to
me." Consequently, the State could not "avail itself of the
confirmation process approved [in] Farrow."
The judge determined that "this identification by [A.T.] must
be treated as a single photo show-up procedure," which although
not per se unconstitutional, is "inherently suggestive" (citing
6 A-3471-16T4
Henderson, supra, 208 N.J. at 259). The judge then focused on the
system variables identified in Henderson and made the following
detailed findings:
Here, approximately [eighteen] hours elapsed
from the time of the shooting to the interview
and show-up procedure. [A.T.] was not given
the pre-identification instructions regarding
the photograph, and received information from
. . . a private actor, her boyfriend, [J.I.],
concerning the . . . name of the man she saw.
. . .
Furthermore, though [A.T.] repeatedly
mentioned [J.I.]'s statements concerning the
suspect made to her, [A.T.], the police
apparently failed to investigate the extent
of the discussion and the detail involved.
Considering the system variables in this
particular light, I will note, first of all,
with respect to blind administration, this
apparently was not done. It appears that the
officers knew who the suspect[] [was];
ultimately, showed her a single photograph of
the suspect, and so that cuts against
reliability of the identification. I give
. . . that factor high weight.
In terms of pre-identification instructions,
[A.T.] was not given pre-identification
instructions. So again, that cuts against
reliability. I give that high weight.
In terms of lineup construction, that's not
applicable, because there was no lineup.
In terms of feedback, whether the officers
gave feedback about the suspect or the crime
before[,] during[,] or after the
identification procedure, arguably, there was
some done here . . . that cuts against
7 A-3471-16T4
reliability, but based on [] the nature of it,
I give it low weight.
In terms of recording confidence, that wasn't
done here, one way or the other, although the
whole statement was recorded. So we do have
the benefit of that, and that can be just
judged broadly from what is observed from the
video and [] what I have seen so far from the
transcript.
And as to the way it was done, though, where
it wasn't expressly asked of the witness for
her to state in particular her level of
confidence, that cuts against reliability.
But I give it low weight, given the fact that
we can otherwise observe and hear her
statements, and I've read her statements.
In terms of multiple viewings, did the witness
view the suspect more than once as part of
multiple identification procedures? No. So
that favors reliability, but I give it low
weight. And the sub-part of that is about the
use of fillers, which does not apply.
Show-ups. Did the police perform a show-up
more than two hours after the event. Yes,
they did. This was some [eighteen] hours
later. If it was within [two] hours there was
[] very little problem about unreliability,
but this was more than [two] hours, so we're
not in that realm.
The sub-part of this is whether the police
warned the witness that the suspect may not
be the perpetrator, and that the witness
should not feel compelled to make an
identification. That was not done. All this
cuts against reliability. I give that high
weight.
In terms of private actors, whether the law
enforcement officers elicited from the witness
whether he or she had spoken with anyone about
8 A-3471-16T4
the identification; and, if so what [was]
discussed? Well, it was apparent that [A.T.]
was interacting with her boyfriend, a private
actor. She mentioned this; [the police]
didn't pursue it to flesh that out.
In terms of to what extent it might affect
[A.T.'s] ability to identify from her personal
knowledge, this photograph is being the
photograph of the actual perpetrator, and so
that cuts against reliability. I give that
high weight.
In terms of other identifications made, [A.T.]
didn't make any other identifications or
choose any other suspect. Of course, she
wasn't shown any more than one photograph, but
she didn't otherwise suggest there was
somebody else. And she did say this
photograph was the right person. So she did
not identify other people. That favors
reliability. But since it was done the way
it was done, with one photograph only, I give
it low weight.
The judge concluded that defendant made a threshold showing of
some evidence of suggestiveness that could lead to a
misidentification, "thereby entitling [him] to an evidentiary
hearing, the next step under Henderson."
The court conducted an evidentiary hearing on February 22 and
23, 2017, at which A.T. and CCPO Detective James Brining testified.
The court also viewed the video recording of A.T.'s out-of-court
identification. The judge concluded that A.T. "was substantially
lacking in credibility." He elaborated:
Her testimony was rambling and sometimes
unresponsive to questions. She admitted that
9 A-3471-16T4
in her statement to the police she made
numerous assumptions not based on personal
observations or knowledge. She admitted some
of her statements to police, especially early
on, were untruthful.
Her statement to police was internally
inconsistent, at first saying the perpetrator
was not . . . a familiar face, then later
saying she had seen him before in the
neighborhood. She stated that . . . she
obtained some of her knowledge of what she
knew about the perpetrator from her boyfriend
[J.I.], and further stated other things that
he knew about [] defendant, such as his
nickname Fatboy, but she was unconvincing in
her efforts to separate what she gleaned from
him and what she knew of her own account.
She also stated that at her interview she was
shown multiple photographs . . . when, in
fact, she was shown one, that of the
defendant, as evidenced by the video of her
statement.
She was, at the time of the statement, under
indictment in Camden County and was
intercepted in court by law enforcement
officers and taken to the [CCPO] for
questioning regarding this matter.
The judge next proceeded to analyze the estimator variables
identified in Henderson. He first found that the unexpected mid-
day shooting involving multiple gunshots involved a high level of
stress and decreased the reliability of the identification.
Second, the judge noted that A.T. did not observe a weapon at the
time of the shooting. This factor increased the reliability of
the identification. Third, A.T.'s observation of the criminal
10 A-3471-16T4
suspect was for a "relatively short duration[,] [which] cuts
against reliability." Fourth, as to distance and lighting, the
judge found it was daylight, which favored reliability, but "the
distance across the street wasn't close," which did not. Fifth,
there was no evidence that A.T. was under the influence of drugs
or alcohol or in a state that "undercut her reliability or ability
to perceive[,]" which favored reliability. Sixth, A.T. was age
twenty-nine when she witnessed the shooting, which also favored
reliability. Seventh, as to characteristics of the criminal
suspect, the perpetrator was not wearing a disguise in his
commission of the criminal act. This too favored reliability.
The judge next addressed the accuracy of a witness's memory
during a show-up identification occurring more than two hours
after the criminal incident. Drawing on Henderson, supra, 208
N.J. at 259-60, the judge noted that "memory decay is a problem"
in that context.
Regarding racial bias, the judge recognized that A.T. is
Caucasian and defendant is African American. However, the judge
deemed the potential for cross-racial bias less significant in
this case because many African Americans live in A.T.'s
neighborhood. Thus, racial bias weighed only slightly against the
reliability of the identification.
11 A-3471-16T4
Next, A.T.'s description of defendant was "generally
accurate" and favored reliability. Finally, while A.T.
immediately identified defendant in the photo, she did not verbally
indicate her certainty as to same. Notwithstanding, the court
found that the immediacy of the identification weighed in favor
of reliability.
The judge then "weigh[ed] the system and estimator variables
quantitatively and qualitatively, under the totality of the
circumstances." He concluded the State "failed to show that the
identification is still reliable," and defendant "met his ultimate
burden of showing a very substantial likelihood of
misidentification." The judge entered an order suppressing A.T.'s
out-of-court identification of defendant. This appeal followed.
III.
Our standard of review on a motion to bar an out-of-court
identification "is no different from our review of a trial court's
findings in any non-jury case." State v. Wright, 444 N.J. Super.
347, 356 (App. Div.) (citing State v. Johnson, 42 N.J. 146, 161
(1964)), certif. denied, 228 N.J. 240 (2016). We are bound to
uphold the motion judge's factual findings as long as they are
supported by sufficient credible evidence in the record. State
v. Gonzalez, 227 N.J. 77, 101 (2016). This deference is grounded
in the understanding that our "reading of a cold record is a pale
12 A-3471-16T4
substitute for a trial judge's assessment of the credibility of a
witness he has observed firsthand." State v. Nash, 212 N.J. 518,
540 (2013).
However, "[d]eference ends when a trial court's factual
findings are not supported by sufficient credible evidence in the
record." State v. S.S., 229 N.J. 360, 381 (2017). We also do not
defer to the trial judge's legal conclusions. State v. Gorthy,
226 N.J. 516, 530 (2016). We review legal decisions de novo.
State v. Tate, 220 N.J. 393, 405 (2015).
Before us, the State contends the motion judge was confused
by A.T.'s statement that defendant was "not a familiar face." The
State submits that A.T. intended to say defendant was not a
"familiar face" among the drug dealers who plied their trade across
the street from her home. It is the State's position that this
misinterpretation caused the judge to incorrectly conclude that
A.T. was not merely making a "confirmatory identification." Again
relying on Farrow, supra, 61 N.J. at 453, the State argues the
judge erred in applying the identification procedures of
Henderson, and there was no need for a further hearing to assess
the Henderson factors where, as here, the witness actually knew
the perpetrator. We are not persuaded.
Specifically at issue here is that portion of A.T.'s February
8, 2016 recorded interview in which she stated:
13 A-3471-16T4
And he goes, I heard him straight up say I was
just robbed. He's like they fucking robbed
me. So I kind of look 'cause I was [] like I
know he's not a familiar face, like I know, I
know there's a lot of people that stand out
across the street. They'll literally always
stand directly across from my street, but I
know I never really seen [him], like seen him
like um, like there.
Clearly this statement was sufficient to give the motion
judge pause to question the degree of A.T.'s familiarity with
defendant. In light of the inherent suggestibility of a show-up
in which A.T. was presented with a single photograph of defendant
more than two hours after the event,2 the fact she was not given
pre-identification instructions or told the photo might not depict
the perpetrator, and was given information about the shooter by
her boyfriend that may have tainted her own personal perception,
these factors in combination clearly entitled defendant to an
evidentiary hearing.
After hearing A.T.'s testimony and observing her demeanor,
the judge found her "substantially lacking in credibility." As
we have noted, the judge carefully enumerated several reasons
supporting his credibility assessment. He recognized that A.T.
"indicated that she was not entirely truthful with everything that
2
See Henderson, supra, 208 N.J. at 261 ("showups, while sometimes
necessary, are inherently suggestive").
14 A-3471-16T4
she said during her recorded statement and that she also, from
time to time, was making assumptions of facts in things she set
forth during her recorded statement." Specifically, A.T. asked
the detectives "'Does this seem about right?' or words to that
effect[,]" with regard to her interview testimony. She also told
the detectives she "hoped [] she could pick [the suspect] out of
a photo array." (Emphasis added). Finally, A.T. incorrectly
testified she was shown several photographs of suspects, maybe
five, before she identified defendant as the shooter, when
indisputably she was only shown defendant's photo.
Mindful that we are reviewing a cold record and that the
trial court's factual findings are "entitled to very considerable
weight," State v. Adams, 194 N.J. 186, 203 (2008), we are loathe
to disturb the judge's credibility findings. Given A.T.'s
perceived lack of credibility, we are thus unable to accept the
interpretation of A.T.'s statement urged on us by the State, that
her identification of defendant was merely confirmatory.
The judge properly went on to identify and balance the various
system and estimator variables within the Henderson framework.
The judge correctly followed the totality of the circumstances
approach that Henderson requires when evaluating the admissibility
of identification evidence. We conclude there is no basis for
disturbing the judge's conclusion that defendant established "a
15 A-3471-16T4
very substantial likelihood of irreparable misidentification."
That conclusion is supported by substantial credible evidence in
the record and a proper application of Henderson.
Affirmed.
16 A-3471-16T4