Opinion
DOCKET NO. A-2034-11T1
07-23-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHESTER CHAVIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Steven Sciancalepore, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa, Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-04-00825.
Joseph E. Krakora, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Steven Sciancalepore, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals the denial of his motions to suppress pretrial identifications and his confession. We affirm.
I
In April 2009, defendant was charged with second-degree conspiracy to commit first-degree armed robbery, N.J.S.A. 2C:5-2 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count three); second-degree possession of a handgun without a permit to carry, N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count five); receiving stolen property, N.J.S.A. 2C:20-7 (count six); and being a certain person not to have a weapon, N.J.S.A. 2C:39-7 (count eight).
Following the denial of his motions, defendant pled guilty to count two of the indictment, first-degree armed robbery, N.J.S.A. 2C:15-1, on condition he could challenge the denial of his motions on appeal. He was sentenced to a twelve-year term, with an eighty-five percent period of parole ineligibility; the remaining counts were dismissed.
II
On February 22, 2010, a Wade hearing was commenced to determine the admissibility of two witnesses' pretrial identifications. Robert Tejada, the owner of a deli in Jersey City, testified his deli was robbed on December 3, 2008. At the time of the robbery, he was next door in a dry cleaning business he also owned. Hearing a loud noise in the deli, he looked through a six-inch square "pass through window" in the wall between the two businesses. He saw a masked man pointing a gun toward the window but the man could not see Tejada. Although the gunman was masked, his forehead, eyes, nose, mouth and part of his cheeks were visible. Tejada was also able to ascertain the gunman was at least six feet tall and weighed between two-hundred-fifty and three-hundred pounds.
United State v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Tejada called 911 and then looked at a computer screen hooked up to security cameras inside of the deli. He saw another man in addition to the gunman. Tejada went outside and peered in the front window of the deli, but then retreated back inside to observe what was happening in the deli from the computer screen in the dry cleaners.
When the two men left the deli and got into a car, Tejada ran out and followed them in his car. He was able to maintain a distance of only two to three cars behind the perpetrators. At one point, the car made a left turn and, from a distance of about thirty feet, Tejada was able to see the driver's profile. When he passed a police station, he stopped chasing the car and went into the police station to advise he was the one who reported the robbery. He gave the police a description of the perpetrators' car and the direction in which they appeared to be travelling.
Tejada then returned to the deli, where he was met by the police. The police told Tejada that they had suspects and inquired whether Tejada would be able to identify them. Tejada advised he could identify two of them and, although he had not seen the face of the second man in the store, he was able to report the man was wearing blue pants and a black jacket, and was between five feet, seven inches and five feet, eight inches tall.
Tejada was then transported in a police car to where he was to view the three men. One officer told him that the suspects would be "on the left" and that he was to let the police know if he was able to identify anyone. The police did not say anything else. When they arrived, Tejada remained in the patrol car and viewed the men as the patrol car drove by. Only twenty to thirty minutes had elapsed since the robbery.
Tejada identified the gunman and the driver of the car, telling the police he recognized the taller, light-skinned, thin man as the driver and the heavy-set man with a beard as the gunman in the store. He told the police he was certain of his identifications. Although none of the witnesses at the Wade hearing indicated which of the three men was defendant, in his brief defendant indicates he is the alleged gunman in the store.
Another eyewitness, Vivian Felder, testified that she was walking by the deli when a woman ran out of the deli exclaiming there just had been a robbery. Felder then saw two men run out of the store, followed by Tejada. At the hearing, she said she did not remember what the men looked like, but testified she recalled that they were wearing black. The police also drove Felder to the location where the three perpetrators were to be viewed. When the police drove her by them, she recognized the clothing of the two men.
Lieutenant Frederick Younger testified that, at the crime scene, both eyewitnesses were confident they could identify those involved in the crime. Felder also told him she saw two men jump into a car being driven by a third man. Younger then transported both witnesses in the same patrol car to a point near where they were to view the three men; the witnesses were then separated so neither could influence the other during the viewing itself.
When they first got into his car, Younger told the witnesses that the police stopped a car in which there were three people. He said "[i]t might be them and it might not be them. . . . If it is them, let us know. If it's not, also let us know, and we'll know what we need to do at that point." He also told them not to feel any pressure. When Tejada and Felder were separated for purposes of viewing the three men, Younger told Felder, "[W]e're going to drive by. You're going to be shown a vehicle, a couple of people, and I want you to tell me what if anything about each one of them that I show you[.]"
Younger also testified the three men were in handcuffs when Felder identified them. He claims that after she viewed them, Felder identified all three without any hesitation. She also told him where each of the three men sat in the getaway car.
Detective Michael Post drove Tejada past the three men, all of whom were standing against a police car. According to Post, none of the men was handcuffed but they were surrounded by police personnel. Post testified that Tejada recognized two of the three men immediately. Tejada also claimed he was one hundred percent certain of his identifications.
The Wade hearing here was conducted before the Supreme Court's decision in State v. Henderson, 208 N.J. 208 (2011). Accordingly, the trial court applied the two-pronged test set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), and adopted by the New Jersey Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988); see also State v. Herrera, 187 N.J. 493, 503-04 (2006). Under the two- prong test, a court must determine (1) "whether the identification procedure was impermissibly suggestive," and, if so, (2) "whether the impermissibly suggestive procedure was nevertheless reliable." Herrera, supra, 187 N.J. at 503-04. Here, the trial court determined that the identification procedure was not impermissibly suggestive but, even if it were, the procedure was nevertheless reliable. Ibid.
III
Defendant raises the following points for our consideration:
POINT I - THE TRIAL COURT VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO
DUE PROCESS OF LAW WHEN IT ADMITTED EVIDENCE OF A PRETRIAL IDENTIFICATION WHICH HAD BEEN MADE UNDER IMPERMISSIBLY SUGGESTIVE CONDITIONS, AND WHICH WAS CLEARLY UNRELIABLE.
A. The Showup Procedures Were Impermissibly suggestive.POINT II - THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WHEN IT RULED THAT DEFENDANT'S STATEMENT WOULD BE ADMISSIBLE DESPITE STRONG EVIDENCE THAT HE DID NOT UNDERSTAND THE RIGHTS THAT HE WAS WAIVING.
B. The Identification Procedures Were So Unreliable As To Create A Substantial Risk Of Mistaken Identification
1. Vivian Felder
2. Robert Tejada
As for Point I, we affirm substantially for the reasons set forth in the trial court's written opinion. We add only the following comments.
"An appellate court should typically defer to the trial court's credibility and factual findings, recognizing that the trial court's findings are often 'substantially influenced by [its] opportunity to hear and see the witnesses and to have the "feel" of the case.'" State v. Hreha, 217 N.J. 368, 382 (2014) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Our review of a trial court's findings is limited to confirming "'those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted)).
Defendant argues the trial court's analysis was flawed because it found both Felder and Younger credible when there were differences between their testimony. Specifically, at the time of the Wade hearing, Felder recalled that two of the perpetrators wore black but she could not remember what the men looked like. Lieutenant Younger recalled that, on the day of the incident, Felder was able to identify all three men and was able to say where each sat in the get-away car.
Felder testified fifteen months after the incident.
The fact that at the Wade hearing Younger remembered what Felder said on the day of the robbery more precisely than she did does not make either witness more credible than the other. The trial court found both credible; implicit in such finding is that the court concluded Felder testified to that which she in fact recalled, as did Younger.
Defendant points out that Younger claimed the three men were handcuffed when viewed by the witnesses, while Post testified they were not. Defendant further notes that, in its opinion, the trial court found both witnesses credible but found the three men were not handcuffed during the drive-by.
The inconsistency is not material. Assuming they were handcuffed, the identification procedure was not rendered per se improper and unconstitutional. State v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003); Madison, supra, 109 N.J. at 232. In the final analysis, the court's conclusion that the procedure was not impermissibly suggestive is supported by sufficient credible evidence.
Defendant claims that Tejada could not have seen the gunman's face because it was covered with a mask. He also contends Tejada's attention to detail was likely compromised because a gun was pointed at him when he was viewing defendant's face. Tejada's testimony, however, was that a significant portion of the gunman's face was exposed. Also, although the gun was pointed in Tejada's general direction, Tejada claimed the gunman could not see him. There is no evidence Tejada's ability to perceive and absorb the details of the gunman's face was affected by the gunman's weapon.
We conclude the remaining arguments raised in Point I of defendant's brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
In Point II of his brief, defendant argues the trial court erred when it denied his motion to suppress his confession to the robbery. Defendant contends he did not knowingly and intelligently waive his Miranda rights, see State v. Presha, 163 N.J. 304, 313 (2000), before confessing to the robbery as, at the time, he was under the influence of heroin.
Miranda v. Arizona, 384 U.S. 436, 468, 86 S. Ct. 1602, 1624, 16 L. Ed. 2d 694, 720 (1966).
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Before denying his motion to suppress his confession, the court held a hearing, at which defendant and the detective who was present when he signed the waiver and gave his confession testified. The court also viewed the videotape of defendant waiving his Miranda rights and confessing to the robbery. At the conclusion of the hearing, the court found that defendant was not credible when he claimed he did not knowingly and intelligently waive his Miranda rights. We defer to the trial court's credibility and factual findings, as they are supported by sufficient credible evidence in the record. See Hreha, supra, 217 N.J. at 382. In our review of the videotaped confession we noted that defendant was responsive to police questions and even asked clarifying questions himself at times.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION