Opinion
DOCKET NO. A-0365-11T2
02-13-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRELL L. PIERCE, a/k/a TERRELL PIERCE, T, Defendant-Appellant.
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). Gregory Waterston, Assistant Prosecutor, argued the cause for respondent (John T. Lenahan, Salem County Prosecutor, attorney; Thomas A. DeSimone, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10-12-0626.
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).
Gregory Waterston, Assistant Prosecutor, argued the cause for respondent (John T. Lenahan, Salem County Prosecutor, attorney; Thomas A. DeSimone, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Terrell L. Pierce appeals from a July 19, 2011 judgment of conviction (JOC), entered after a jury found him guilty of second-degree eluding, in violation of N.J.S.A. 2C:29-2(b). For the reasons that follow, we reverse and remand for a new trial.
I.
The following evidence was introduced at trial. On April 24, 2010 at 1:44 a.m., Patrolman Joseph DeCarlos and his partner, Patrolman Anthony Minguez, observed a silver vehicle enter the parking lot of a twenty-four hour delicatessen, the One-Stop Deli (the Deli), located on North Virginia Avenue in Penns Grove. At the time, the patrolmen were parked in a marked patrol car in front of the Deli. Both patrolmen observed the driver exit the vehicle and enter the Deli, and each testified that he recognized the driver as defendant Terrell L. Pierce.Patrolman DeCarlos testified he had been employed for six and one-half years with the Penns Grove Police Department and that he knew defendant from having "seen him throughout the community." He said he was also aware that defendant had a suspended driver's license. Patrolman Minguez testified that he knew defendant from high school, where defendant was two grades behind him.
Patrolmen DeCarlos also made an in-court identification of defendant.
Through a call to dispatch, Patrolman DeCarlos confirmed defendant had a suspended driver's license. Patrolman DeCarlos then alerted other officers in the area that he had observed defendant driving a silver vehicle, that his driver's license was suspended, and informed the officers of the vehicle's license plate number. Patrolman DeCarlos then stationed his patrol vehicle north of the store, with the intention of conducting a motor vehicle stop once defendant left the store.
When asked on cross-examination if he had seen defendant prior to 1 a.m., Patrolman DeCarlos responded, "I can't recall. I can't — definitely not physical contact or verbal, maybe seeing him. Penns Grove's small. It's not even one square mile; I might have seen him a couple of times that night . . . I'm not sure; it's been a while."
Even though Patrolman DeCarlos observed defendant operate his vehicle when he pulled into the Deli's parking lot, and quickly confirmed his suspended status, he chose not to conduct a stop before defendant got back into the car, explaining "[a]t that point, no, we waited for the car to move."
Meanwhile, Patrolman Joseph Johnson and Special Officer Michael Miller, received Patrolman DeCarlos's broadcast informing them that defendant had been driving with a suspended license, and defendant's location. Patrolman Johnson then positioned his marked patrol car south of the Deli. A few minutes later, Patrolman Johnson observed the silver vehicle, bearing the license plate number that Patrolman DeCarlos reported, going south on North Virginia Avenue. The silver vehicle made a right-hand turn off of North Virginia Avenue towards East Pitman Street. Patrolman Johnson followed in pursuit and activated his overhead lights after the silver vehicle made a left-hand turn onto Barbara Avenue. The silver vehicle pulled over to the right-hand side of the street.
Patrolmen Johnson and Miller exited their vehicle and began to approach the silver vehicle. At that point, Patrolman Johnson said he observed the driver of the silver vehicle turn around and look "directly at us." When this occurred, Patrolman Johnson stated they were "less than ten feet" from the driver and the silver vehicle was totally illuminated by the patrol car's spotlight. Patrolman Johnson identified defendant as the driver of the stopped vehicle. He also made an in-court identification of defendant. A seventeen-year veteran of the Penns Grove Police Department, Patrolman Johnson said he was familiar with defendant "through contacts in the community, observing [defendant] around in the community."
Patrolman Johnson estimated that he and Patrolman Miller had taken "about two or three steps" from their patrol vehicle when the silver vehicle took off at a high rate of speed. When the silver vehicle took off, the officers jumped back into their vehicle, activated its siren and lights, and followed in pursuit. The silver vehicle drove at a high rate of speed, ran two stop signs, and almost collided with another vehicle.
At that point, Patrolman Johnson determined that the situation had become too dangerous and stopped the pursuit. Patrolman Johnson then drove to the registered address for the silver vehicle but did not find the vehicle there.
Patrolman Johnson explained that the patrol vehicle he operated was equipped with red and blue lights, a spotlight, and a dash-mounted camera system that activates when the lights are turned on. Patrolman Johnson testified that the video recording system operated properly on April 24, 2010, and that it accurately recorded the events as they occurred. The jury viewed the video.
The video is consistent with Patrolman Johnson's testimony except it does not depict either Patrolman Johnson or Special Officer Miller enter into the view of the dash-mounted camera.
Defendant did not testify. Defense counsel did not request a charge on identification nor did she otherwise object to the court's proposed jury charge.
Defendant presents the following arguments in his appeal:
Point I
THE TRIAL COURT ERRONEOUSLY ADMITTED "OTHER CRIMES" AND/OR "BAD ACTS" EVIDENCE CONTRARY TO WELL-ESTABLISHED LAW AND IN VIOLATION OF [DEFENDANT'S] RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below)POINT II
A. The Admission Of Irrelevant Testimony That [Defendant's] Driver's License Was Suspended Deprived Him Of His Rights To A Fair Jury Trial And Due Process. U.S. Const. [a]mends. VI, XIV, XIV; N.J. Const. [a]rt. 1, ¶ ¶ 1, 10
B. Defense Counsel Was Ineffective In Failing To Seek To Have The Statement Redacted. U.S. Const. [a]mend. VI; N.J. Const. [a]rt. 1, ¶ 10
C. In The Alternative, To The Extent That The Suspension Of [Defendant's] License May Have Been Relevant In This Matter, A Less Prejudicial Modality, Namely Sanitization, Could Have Been Employed To Explain The Officers' And/Or [Defendant's] Alleged Actions In This Matter
THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. [Const. amends]. V, VI, AND XIV; [N.J. Const.] (1947), [art. I], ¶ ¶ 1, 9, 10. (Partially Raised Below.)
A. Failure To Provide A Jury Instruction On Identification Was Plain Error Requiring Reversal And Remand For A New Trial
B. That The Eyewitnesses Were Law Enforcement Does Not Obviate The Need To Provide A Jury Instruction On
Identification And Failure To Do So Was Plain Error Requiring Reversal And Remand For A New TrialPOINT III
C. Failure To Provide A Jury Instruction On Cross-Racial Identification Was Plain Error Requiring Reversal And Remand For A New Trial
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below)
We find merit in defendant's contention that the trial court's failure to instruct the jury on identification constituted plain error. R. 2:10-2. Because that error requires a reversal of defendant's judgment of conviction, we do not address the other issues raised.
II.
As defendant failed to object to the jury charge, we review the claimed error under the plain error standard, and may reverse only if the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Torres, 183 N.J. 554, 564 (2005) ("[A] defendant waives the right to contest an instruction on appeal if he does not object to the instruction."). Omitting or issuing an incomplete charge is not automatically plain error, but may constitute reversible error if the omitted charge was necessary to avoid a verdict that is inconsistent with substantial justice. State v. Frisby, 174 N.J. 583, 598 (2002). Erroneous instructions on material issues in criminal prosecutions are presumed to be reversible error. State v. Reddish, 181 N.J. 553, 613 (2004).
A trial court must instruct the jury on identification when the identification of a defendant is a "key issue" in the case. State v. Cotto, 182 N.J. 316, 325 (2005) (citing State v. Green, 86 N.J. 281, 291 (1981)); State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003)). An identification will rise to the level of a key issue when "'[i]t [is] the major . . . thrust of the defense[.]'" Cotto, supra, 182 N.J. at 325 (quoting Green, supra, 86 N.J. at 291) (alterations in original).
Our Supreme Court revised the rules governing out-of-court identification procedures in State v. Henderson, 208 N.J. 208, 288 (2011). However, those provisions do not apply to our review because defendant was tried before Henderson was decided and the decision is not retroactive. Id. at 302.
The failure to instruct the jury on identification may constitute plain error. Cotto, supra, 182 N.J. at 326 (citing Green, supra, 86 N.J. at 289). "The determination of plain error depends on the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument is convincing." Cotto, supra, 182 N.J. at 326 (citing Davis, supra, 363 N.J. Super. at 561). "Thus, [we require] . . . overwhelming corroborative evidence that the 'failure to give an identification does not constitute error,' but such cases are the exception." Cotto, supra, 182 N.J. at 326 (quoting Davis, supra, 363 N.J. Super. at 561). A trial court must, therefore, provide an instruction on identification when a misidentification argument is made even when the argument made is weak, unless the State has presented sufficient corroborating evidence of the defendant's guilt. Cotto, supra, 182 N.J. at 326 (citing Davis, supra, 363 N.J. Super. at 561).
In Cotto, supra, a witness heard the voice and saw part of the face of one of her assailants who she recognized as her ex-boyfriend. 182 N.J. at 323. The witness also heard the defendant refer to her son by name during the robbery, as well as refer to a tin can where she kept cash that only she and defendant knew about. Id. at 323. The Supreme Court noted that because of this corroborating evidence, the absence of a detailed instruction on identification was not plain error. Id. at 327.
In Davis, supra, we held that it was plain error for a trial court not to give the jury a special instruction regarding its consideration of identification evidence even though defendant had not requested such an instruction. 363 N.J. Super. at 559-62. We acknowledged that the State had a "strong case" against defendant for selling drugs to an undercover DEA officer because a "local detective who served as a backup to the DEA officer drove by the sale location shortly after the drugs were sold and recognized defendant, whom he had known previously." Id. at 560.
We also acknowledged that "defendant did not specifically request a charge on identification." Ibid. Nevertheless, we concluded that the trial court's failure to give such an instruction sua sponte constituted plain error requiring a reversal. Id. at 561-62. In reaching this conclusion, we stated:
[A]s a matter of general procedure a model identification charge should be given in every case in which identification is a legitimate issue. The failure to give such a charge or to give an adequate charge is most often reversible error. While in some instances it may not be necessary to present an extended charge on identification, nevertheless, the complete absence of any reference to identification as an issue or as an essential element of the State's case is improper. That is the situation in the present case. Although the trial court gave general instructions on such things as credibility and the elements of the crimes charged, there was no specific instruction on the State's burden to prove identification beyond a reasonable doubt. The defense's claim of misidentification, although thin, was not specious. A jury is at liberty to reject a meritless defense, but trial courts are not at liberty to
withhold an instruction, particularly when that instruction addresses the sole basis for defendant's claim of innocence and it goes to an essential element of the State's case.
[Id. at 561-62 (citations omitted).]
III.
Applying these principles, we conclude the court's omission of the unrequested identification charge was clearly capable of producing an unjust result. Misidentification was not just a key issue in the case; as tried, it was the only issue in the case. The defense theory was to challenge the identifications in terms of their accuracy and reliability. Consequently, a charge about the vagaries of eyewitness identification was critical.
Here, three officers identified defendant as the driver of the silver vehicle. Although the State introduced a DVD produced by the video recording system in Patrolman Johnson's vehicle to corroborate the officers' identifications, the DVD does not accomplish that task because defendant's face is not visible on it. The DVD merely shows the back of a person's head. It does not present any distinguishing features from which a juror could reasonably conclude that it is defendant on the DVD. The lack of corroboration on the DVD cast some doubt upon the testimony of the police officers who identified defendant, thereby indicating that the absence of the charge on identification could have led to an unjust result.
While the driver does quickly turn his head for about one second (consistent with Patrolman Johnson's testimony), the driver's face is not visible on the video due to glare. Therefore the video does not provide corroboration for the police officers' identification.
Because the DVD appears to depict an area beyond a ten-foot radius of the driver of the stopped silver car, it calls into question the accuracy of Patrolman Johnson's estimation that he was "less than ten feet" from the driver when the driver turned and "looked directly at us."
On remand, the court shall apply the principles regarding the admission of eyewitness identification testimony enunciated in Henderson. 208 N.J. at 302. The trial court shall provide the jury with an appropriately tailored instruction on in-court and out-of-court identifications based upon the instructions approved by the Court, effective September 4, 2012. The court shall include the instruction on cross-racial identifications.
The Court in Henderson instructed that the charge on cross-racial identification should be given "whenever cross-racial identification is in issue at trial." Supra, 208 N.J. at 299. In this case, the State does not contest that two of the identifications were cross-racial.
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Reversed and remanded for a new trial.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION