Opinion
DOCKET NO. A-1015-14T3
09-30-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BAYSHINE LEARY, a/k/a BAYSHAWN LEARY, a/k/a PROCTOR BARRY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-11-1051. Joseph E. Krakora, Public Defender, attorney for appellant (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Bayshine Leary appeals from an April 30, 2013 decision denying his motion to dismiss the indictment and an April 16, 2014 order denying his motion for a Wade hearing. After both motions were denied, defendant pled guilty to second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). Defendant was thereafter sentenced to a five-year prison term, subject to an eighty-five percent period of parole ineligibility. For the reasons that follow, we affirm.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
I
On appeal, defendant raises the following arguments for our consideration:
POINT I - THE JUDGE'S DENIAL OF MR. LEARY'S MOTION TO DISMISS THE INDICTMENT DENIED MR. LEARY HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS. U.S. CONST., AMENDS. V, XIV; N.J. CONST., ART. I, ¶¶ 1 AND 10.
POINT II - THE JUDGE APPLIED THE WRONG EVIDENCE STANDARD FOR DETERMININIG WHETHER MR. LEARY MADE A PRIMA FACIE SHOWING OF THE UNRELIABILITY OF ALLEN'S SHOWUP IDENTIFICATION, REQUIRING REVERSAL AND CONVENING OF A FULL WADE HEARING. U.S. CONST., AMENDS. V, XIV; N.J. CONST., ART. I, ¶¶ 1 AND 10.
In his first point, defendant contends that during the grand jury hearing, the State violated his rights to due process in three respects, warranting the dismissal of the indictment. First, one charge in the indictment accused defendant of "attempt[ing] to cause serious bodily injury to [C.W.], contrary to the provisions of N.J.S. 2C:12-1(b)(1)." This statute provides that a person is guilty of aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J.S.A. 2C:12-1(b)(1). Defendant contends there was no evidence he purposely attempted to cause serious bodily injury to the victim.
We use the victim's initials to protect his privacy.
Second, defendant contends the State failed to provide the grand jury with exculpatory evidence. Third, he complains a witness proffered an opinion about his conduct that was unsupported by facts. Fourth, he contends a witness testified two security guards had observed him shooting a gun. However, according to defendant, one of the guards never indicated he had seen defendant shoot a gun.
The pertinent testimony before the grand jury was as follows. The only witness called was Detective Scott Peterson of the Trenton Police Department. He testified that, at approximately 2:30 a.m. on February 23, 2012, police officer Palinczar was in his patrol car when he heard gunshots. Palinczar drove around the corner and saw a man, later identified as defendant, firing a gun in the direction of C.W. Defendant then ran from the scene. Palinczar spotted C.W., who had been shot twice in the leg, and was subsequently transported to the hospital by ambulance. C.W. did not know who had shot him.
Peterson spoke to security officers Lawrence Allen and Michael Hester and learned they had been "making their rounds" at an apartment complex when the shooting occurred. Minutes before the shooting, the security officers were walking along the sidewalk when they noticed a man and a woman standing by a Cadillac and drinking out of paper cups. The guards kept walking and noticed C.W. head toward the man and woman. The guards went around the corner and then heard gunshots. A police car immediately appeared on the scene.
The guards went back to the area where the man and woman had been standing and saw the man shooting a handgun in the direction of C.W. The man then ran from the scene. Peterson testified numerous police officers poured into the area to look for evidence, which included interviewing L.C., the woman who had been seen with the man. Fingerprints found on the paper cup from which the man had been drinking were later discovered to be defendant's.
After the police disbanded, the guards observed defendant and L.C. in a dumpster near the scene of the shooting. The guards called the police but, by the time they arrived, defendant and L.C. had left. However, a surveillance camera depicted the car they had entered, which the police located shortly thereafter just a few blocks away, parked outside of a residence. The driver was still sitting in the car. The police immediately detained him and arranged for other officers to transport the security guards to the car to see if they could identify the driver. While on their way over to the driver's location, security guard Allen pointed to a man walking down the street and said, "There he is right there. That's him." The police then converged upon and took defendant into custody.
Peterson testified that, when the police detained the driver, "it [was] my belief that [defendant] fled through the backdoor [of the residence] knowing that the police were probably going to come in the house, fled through the backdoor and probably hopped some fences and ended up [on the street where] . . . he gets seen by the security officers."
L.C. confirmed she had been with defendant the entire night and that she and defendant were at the scene during the shooting. She claimed she did not see anyone with a gun and did not know who the shooter was. She also maintained there were a number of people in the area at the time of the shooting, but C.W. and the security guards maintained that no one was at the scene except for defendant, L.C., and C.W.
Peterson also spoke to defendant, who "waived his rights." Defendant said he had not been at the scene of the shooting and denied he knew L.C. Defendant asserted he had been in a bar all night, but this claim was disputed by the owner of the bar. Peterson also noted the surveillance camera showed defendant wearing the same distinctive shirt at the scene of the shooting as when he was taken into custody - an orange shirt with rhinestones.
One of the grand jurors asked if a weapon had ever been recovered. Peterson responded by saying, "We did actually search the backyards and . . . our belief was [defendant] ran through backyards" after the police stopped the car seen on the surveillance camera and detained the driver. Peterson also stated, "[I]t's my belief that [defendant] threw the gun when he ran [from the scene of the shooting] and it was probably thrown in the dumpster. . . . We searched the dumpster, too; didn't find anything."
The grand jurors were not made aware that in his statement to the police, security guard Hester never actually mentioned seeing defendant shooting a gun. Hester also mentioned he had been shown a photo array but was unable to identify anyone. It is not known if defendant was pictured in that particular array.
Defendant moved to dismiss the indictment for essentially the same reasons advanced on appeal. Specifically, defendant argued there was no evidence he purposely attempted to cause serious bodily injury to the victim; the State failed to inform the grand jury that Hester did not see defendant shooting the gun and that Hester had not identified "anybody in the array as the shooter;" and Peterson provided the grand jury with an unsubstantiated "belief" about defendant's alleged actions on the day of the shooting. The trial court denied defendant's motion.
An indictment is presumed valid and should only be dismissed if it is "manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 229 (1996). We review a trial court's decision on a motion to dismiss an indictment for abuse of discretion. State v. Saavedra, 222 N.J. 39, 55 (2015). "A trial court's exercise of this discretionary power will not be disturbed on appeal unless it has been clearly abused." Id. at 55-56 (quoting State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994) (internal quotations omitted), certif. denied, 140 N.J. 277 (1995)).
"At the grand jury stage, the State is not required to present enough evidence to sustain a conviction." State v. Feliciano, 224 N.J. 351, 380 (2016). "The grand jury 'is an accusative rather than an adjudicative body,' whose task is to 'assess whether there is adequate basis for bringing a criminal charge.'" Saavedra, supra, 222 N.J. at 56 (quoting Hogan, supra, 144 N.J. at 229-30). "A trial court deciding a motion to dismiss an indictment determines 'whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it.'" Id. at 56-57 (quoting State v. Morrison, 188 N.J. 2, 13 (2006)).
However, a prosecutor has a duty to present exculpatory evidence. But the duty to introduce such evidence exists only if that evidence satisfies two requirements: the evidence directly negates guilt and is clearly exculpatory. State v. Reininger, 430 N.J. Super. 517, 531 (App. Div. 2013), certif. denied, 216 N.J. 367 (2013) (quoting Hogan, supra, 144 N.J. at 237). "Only when the prosecuting attorney has actual knowledge of clearly exculpatory evidence that directly negates guilt must such evidence be presented to the grand jury." Hogan, supra, 144 N.J. at 238.
Here, even if the grand jury had been made aware Hester never in fact informed the police that he had seen defendant shooting the gun, there was evidence police officer Palinczar and security guard Allen did see defendant shooting the gun and that defendant did so in C.W.'s direction. The next day, without any prompting by the police, Allen spotted defendant walking down the street and identified him as the shooter. Hence, the alleged exculpatory evidence neither negates guilt nor is "clearly" exculpatory. Palinczar's and Allen's observation of defendant shooting a gun was significant incriminating evidence. Further, Hester did not quite state he did not identify "the shooter" in the photo array. He merely said he could not identify anyone at all; it is not known if defendant was pictured in the array.
Just before the shooting, the security guards saw C.W. walking toward defendant and, seconds after, C.W. was found nearby with two gunshots to his leg. According to Palinczar and the security guards, no one else was in the area at the time of the shooting except defendant, C.W., and L.C., which suggested defendant, who was seen firing in C.W.'s direction, intended to shoot C.W. and not someone else. In our view, such evidence overcomes defendant's premise there was no evidence he purposely attempted to cause serious bodily injury to the victim. See State v. Sharp, 283 N.J. Super. 296, 300-301 (App. Div. 1995) (holding that, where defendant aimed and fired a gun in the direction of two police officers standing nearby, defendant acted with the purpose to kill both).
Finally, we reject defendant's contention Peterson's statements of belief concerning defendant's actions warranted a dismissal of the indictment. As the trial court pointed out, it was clear Peterson was not stating facts but merely a theory about what may or may not have happened when the police detained the driver of the vehicle defendant had been seen entering after he was at the dumpster, and what defendant may have done with the gun. But more important, even if Peterson had not made the latter statements, there was sufficient evidence from which a grand jury could "'reasonably believe that a crime occurred and that the defendant committed it.'" Saavedra, supra, 222 N.J. at 57 (quoting State v. Morrison, 188 N.J. 2, 13 (2006) (citing State v. Reyes, 50 N.J. 454, 459 (1967)). There was no basis for the trial court to have dismissed the indictment.
II
Defendant moved to suppress security guard Allen's out-of-court identification. After considering the arguments of the parties and conducting a hearing at which Allen testified, the court determined that a full Wade hearing was unnecessary because Allen did not identify defendant as the result of a show-up or other procedure implemented by the police. Defendant contends the trial court's decision was erroneous and, derivatively, that the court failed to apply the principles set forth in State v. Henderson, 208 N.J. 208 (2011). Defendant argues Henderson required that a Wade hearing be held to determine whether Allen's identification of defendant was made under unduly suggestive circumstances and, if so, whether that identification resulted in a substantial likelihood of misidentification.
At the outset, we note the trial court correctly determined that Henderson, decided on August 24, 2011, did not apply here. In Henderson, the Court revised the standards for admitting out-of-court identifications established in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1997), and adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988). Henderson, supra, 208 N.J. at 217. In Henderson, the Court set forth specific variables a trial court must consider to determine if the police made an identification procedure inappropriately suggestive. Id. at 288-94. The Court held that its decision applied "to future cases only," and would "take effect thirty days from the date this Court approves new model jury charges on eyewitness identification." Id. at 302. The new model jury charges became effective on September 4, 2012. New Jersey Judiciary, Supreme Court Releases Eyewitness Identification Criteria for Criminal Cases, New Jersey Courts (July 12, 2012), http://www.judiciary.state.nj.us/pressrel/2012/pr120719a.html.
Defendant argues that Henderson applies because he was indicted on November 8, 2012, which was after the new model jury charges took effect. In response, the State argues that Henderson does not apply because the operative facts - Allen's identification of defendant - took place before the new jury charges went into effect. The Court in State v. Jones, 224 N.J. 70, 85 n.2 (2016) settled the issue, stating:
State v. Henderson, 208 N.J. 208 (2011), revised the guidelines for evaluating out-of-court identifications; however, the decision was made prospective in application. Id. at 302. Because the events underlying this case arose before the Henderson decision was handed down, the guidelines established in Manson/Madison are applicable to this matter.Because the events underlying this case took place on February 23, 2012, Henderson does not apply here.
At the hearing, Allen was the sole witness. He testified that he observed the shooting at about 2:30 a.m. Following the shooting, Officer Palinczar showed him digital images of "multiple different people" while Allen sat in his police car. Palinczar asked Allen if anyone in the photographs was "the guy in the shooting." Allen replied that none were.
At about 5:00 a.m., Allen saw a man and a woman approach a dumpster that was twenty-five feet from the guard house in which he was standing. Allen noted that the area, as well as the area where the shooting had occurred, is "super bright . . . I could look you clear in the face. . . . We got almost like football stadium lights so I can't miss you, even if I try my hardest."
The man lifted the woman into the dumpster and then walked toward and came within five feet of the security booth. The man was talking on a cell phone, and Allen heard him say the woman had thrown his keys into the dumpster, and so he was making her look for them there. Allen claimed he and the man made eye contact and that Allen was able to get a close look at him. Allen then realized the man was the one who had been shooting the gun earlier, and called 9-1-1. Before the police arrived, the man, the woman, and a third person who was the driver took off in a silver car.
The police arrived and Allen informed them of the direction in which the silver car went. Another officer asked Allen if he would recognize the man if he saw him again. Allen replied that he would, adding that he had looked the man "dead in the eye." The officer then told Allen to get into his patrol car, as the police had found a person two blocks away who they wanted Allen to see.
While on their way, Allen saw and advised the officer that the man the police were looking for was walking down the street. The officer said, "Oh, no, we got [him in] a car." Allen insisted the man on the street was the suspect. The officer asked Allen three times if he was sure and Allen indicated he was "absolutely positive," that he had looked at the man "dead in the eye the first and the second time." The police then apprehended and placed defendant under arrest.
At the hearing, Allen noted, "[F]or you to be shooting earlier right in front of me that day, I'm not going to forget your face that quick, no, because I was right there by you, that close when you did the shooting earlier so I remember as clear as day, yes, I do know exactly who he was." During the hearing, Allen identified defendant in court as the person he had seen walking down the street.
The trial court found Allen credible and, concluding State v. Romero, 191 N.J. 59 (2007) to be analogous, determined Allen's identification of defendant was not the product of any impermissible suggestion by the police and, hence, a Wade hearing was unnecessary. We agree.
In Romero, the defendant was convicted of first-degree robbery and related offenses for stabbing and robbing the victim of $1,200. While being robbed, the victim was able to see his attacker, later identified as defendant, before defendant fled the scene. About a week later, the victim saw a person on the street whom he believed was the person who had attacked him, and contacted the police.
Later that day the police apprehended a person who fit the victim's description of his attacker and put the suspect in the back of a patrol car. The police then transported the victim to the patrol car, where the hand-cuffed suspect was seated. Before the victim viewed the suspect, the police told him "we have somebody that fits the description you described," and requested that the victim "see if this is the person." Id. at 77-78. The victim then viewed the suspect through the window of the patrol car and identified defendant as his attacker.
Defendant Romero challenged as unduly suggestive the show-up identification procedure employed, as well as the comments made by the police to the victim just before the show-up. After a Wade hearing, the trial court rejected defendant's contention under extant law, finding the victim's identification of defendant reliable. The Court ultimately affirmed defendant's convictions.
At the time Romero was decided, a reviewing court had to "ascertain whether the identification procedure was impermissibly suggestive." State v. Herrera, 187 N.J. 493, 503 (2006). If so, a court was required to determine "whether the impermissibly suggestive procedure was nevertheless reliable" by considering the "totality of the circumstances" and "weighing the suggestive nature of the identification against the reliability of the identification." Id. at 503-04. --------
The Romero Court determined the show-up identification procedure was not impermissibly suggestive because "the identification of defendant originated from the victim's own observation of someone he believed was his assailant." Id. at 78. That is, the victim was able to identify his attacker without any prompting or intervention by the police.
Here, Allen saw defendant shooting the gun. When defendant returned to the scene approximately three hours later, Allen again got a close look at defendant's face and, realizing it was the same person Allen saw firing a gun earlier, contacted the police. While transporting defendant to a person the police suspected was the shooter, Allen, without any suggestion by the police, spontaneously spotted defendant walking down the street, certain the person he saw was the perpetrator. Initially, the police officer was skeptical, but Allen insisted he was correct, having viewed defendant twice earlier that day under circumstances that enabled him to see defendant's face.
The facts here are analogous to those in Romero and control the disposition of this issue. And, unlike in Romero, where the defendant was seated in a police car and in hand-cuffs, there was nothing about defendant walking down the street that suggested the police believed he was a suspect. Allen's identification of defendant originated solely from his own independent recollection of the shooter's appearance and not from any prodding by the police.
Defendant argues his picture may have been included in the photo array Allen viewed in Palinczar's patrol car soon after the shooting, and that it may have been defendant's picture that created Allen's memory of him. However, at the time defendant viewed the photo array, Allen had already seen defendant in person and had determined none of the images in the array matched the person he had seen shooting the gun. Even if defendant were one of the men featured in the array, for whatever reason, Allen did not recognize him to be the person he had seen firing the gun and thus was not influenced by defendant's picture. Later that morning, Allen recognized the man who approached his security booth as the one he saw shooting a gun, and again identified defendant when Allen saw him walking down the street. Under the circumstances, there is no evidence the photo array was suggestive or that a Wade hearing was warranted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION