Opinion
DOCKET NO. A-5288-13T1
06-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARREN M. COMMANDER, Defendant-Appellant.
Mautone & Horan, P.A., attorneys for appellant (Anthony R. Mautone, of counsel; Hilary L. Brunell, on the briefs). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Rookmin Cecilia Beepat, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Currier. On appeal from Superior Court of New Jersey, Criminal Division, Hudson County, Indictment No. 13-06-1352. Mautone & Horan, P.A., attorneys for appellant (Anthony R. Mautone, of counsel; Hilary L. Brunell, on the briefs). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Rookmin Cecilia Beepat, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
A jury convicted defendant Darren M. Commander of third-degree aggravated assault with a weapon, a car, N.J.S.A. 2C:12-1(b)(2) (count one). He was acquitted of third-degree possession of a deadly weapon, the car, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two). Defendant was sentenced to a three-year probationary term on June 23, 2014 and now appeals, objecting to the admission of the pretrial photographic identification, the failure to dismiss the charge or instruct the jury on the issue of intent, and the admission without objection of various statements made by witnesses. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Counts three and four, fourth-degree assault by auto, N.J.S.A. 2C:12-1(c), and fourth-degree knowingly leaving the scene of a motor vehicle accident with serious bodily injury, N.J.S.A. 2C:12-1.1, were dismissed prior to trial.
On February 23, 2012, J.S. reported that a car struck him in front of his brother, S.S.'s, home in Bayonne, New Jersey. J.S. had just arrived outside of his brother's house to meet his brother for their daily car pool to work. J.S. saw a black E-350 Mercedes driving slowly at five miles per hour in his direction while he was crossing the street. Before J.S. was able to reach the other side of the street, the black Mercedes accelerated and hit him.
We use initials to preserve the confidentiality of the victim and his brother.
Initially, J.S.'s thigh and leg brushed against the side fender near the driver's side tire. The Mercedes continued to accelerate, striking J.S. with the mirror and turning him towards the car. J.S.'s sweatshirt became entangled with the driver's side mirror, and he was dragged approximately seventy-five feet. He screamed at the driver to stop. The driver continued to accelerate, then made a sharp right, causing J.S. to be flung from the car.
After J.S. was hit, his elbow and knees were in pain, his toes were scraped and blackened from contact with the street, and his back was hurting. S.S. called the police immediately after assisting his brother.
S.S. told the Bayonne police that when he was waiting for his brother, he noticed a black Mercedes circling the block three or four times before striking his brother. Both S.S. and J.S. were able to provide a description of the driver to the Bayonne police. They described the driver as a white male, in his mid to late thirties or even forty years old, with short dark hair and a thin face. Neither was able to give the license plate number of the black Mercedes, nor had either man seen the driver before.
Approximately ten days later, J.S. identified defendant's photograph from a photographic array. Bayonne Detective Parsley wrote in a "Supplementary Investigation Report" that she acted as a blind administrator in showing the lineup to J.S. Detective Parsley began the procedure with pre-identification instructions. J.S. viewed all six photographs, initialed, and dated the back of each. J.S. chose the photograph of defendant, which J.S. signed and dated, indicating that the man depicted was the man driving the black Mercedes that hit him. Later, J.S. provided a statement to the police, describing what had happened during the lineup procedure and stating that he was "[a]bsolutely sure" that the person in the photograph was the driver.
Detective Parsley testified that she gave substantially the same instructions included in the Bayonne Patrol Guide, formulated from various sources including State v. Henderson, 208 N.J. 208 (2011).
Thereafter, J.S. went to an address he found on the Internet where defendant worked. J.S. testified that he found a black Mercedes at the location with the "same set up and everything" as the car that hit him. Inside the black Mercedes J.S. saw the same radar detector that he had noticed on the day he was hit by the car. The Mercedes was registered to a company with the same address as the company for which defendant worked.
On appeal, defendant raises the following issues:
POINT I: THE PHOTO IDENTIFICATION SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
POINT II: COUNT TWO OF THE INDICTMENT CHARGING AGGRAVATED ASSAULT WITH A DEADLY
WEAPON SHOULD HAVE BEEN DISMISSED BEFORE TRIAL; ALTERNATIVELY THE CHARGE SHOULD HAVE BEEN THE SUBJECT OF SPECIAL INSTRUCTIONS ON THE ISSUE OF INTENT. (Partially Raised Below).
POINT III: THE FAIRNESS OF THE TRIAL WAS COMPROMISED BY PREJUDICIAL AND INFLAMMATORY REMARKS THAT WENT UNCHECKED BY THE TRIAL COURT. (Raised As Plain Error).
Although the caption refers to count two we understand it to refer to count one of the indictment. --------
I
Defendant argues that the trial court erred by admitting J.S.'s out-of-court photographic identification of defendant into evidence because the proper identification procedures were not adhered to by the Bayonne police officers. The State argues that Detective Parsley properly read the pre-identification instructions to defendant, six similar photographs were used in the lineup, J.S. gave a statement summarizing what happened during the identification procedure, and two detectives wrote supplemental reports summarizing the lineup procedure.
When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). The trial court's legal conclusions are subject to de novo review. Zaman v. Felton, 219 N.J. 199, 216 (2014).
Under the Due Process Clause of the Fourteenth Amendment, a court is prohibited from admitting an unreliable out-of-court identification that resulted from impermissibly suggestive procedures. Manson v. Brathwaite, 432 U.S. 98, 106, 97 S. Ct. 2243, 2249, 53 L. Ed. 2d 140, 149 (1976).
In Henderson, supra, our Supreme Court modified the Manson analysis. 208 N.J. at 208. The Henderson Court concluded that system variables, that is, factors within the control of the criminal justice system, as well as estimator variables, which are factors beyond the control of the criminal justice system, "can affect and dilute memory and lead to misidentifications." Id. at 218. Thus, the Henderson Court revised the legal framework for determining whether a pretrial identification is admissible at trial.
Under the revised framework, "to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification." Id. at 288 (citations omitted). As a result, evidence "in general, must be tied to a system — and not an estimator — variable." Id. at 288-89. So long as defendant carries that burden, "the State must then offer proof to show that the proffered eyewitness identification is reliable — accounting for system and estimator variables[.]" Id. at 289. "[T]he ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification." Ibid. (citations omitted).
In Henderson, the Court opined that:
To evaluate whether there is evidence of suggestiveness to trigger a hearing, courts should consider the following non-exhaustive list of system variables:
1. Blind Administration. Was the lineup procedure performed double-blind? . . .
2. Pre-identification Instructions. Did the administrator provide neutral, pre-identif ication instructions warning that the suspect may not be present in the lineup and that the witness should not feel compelled to make an identification?
3. Lineup Construction. Did the array or lineup contain only one suspect embedded among at least five innocent fillers? Did the suspect stand out from other members of the lineup?
4. Feedback. Did the witness receive any information or feedback, about the suspect or the crime, before, during, or after the identification procedure?
5. Recording Confidence. Did the administrator record the witness' statement of confidence immediately after the identification, before the possibility of any confirmatory feedback?
6. Multiple Viewings. Did the witness view the suspect more than once as part of multiple identification procedures? Did police use the same fillers more than once?
7. Showups. Did the police perform a showup more than two hours after an event? . . .
8. Private Actors. Did law enforcement elicit from the eyewitness whether he or she had spoken with anyone about the identification and, if so, what was discussed?
9. Other Identifications Made. Did the eyewitness initially make no choice or choose a different suspect or filler?
[Id. at 289-90.]
In addition, if a court finds that suggestiveness has been proven:
[C]ourts should consider the above system variables as well as the following non-exhaustive list of estimator variables to evaluate the overall reliability of an identification and determine its admissibility:
1. Stress. Did the event involve a high level of stress?
2. Weapon focus. Was a visible weapon used during a crime of short duration?
3. Duration. How much time did the witness have to observe the event?
4. Distance and Lighting. How close were the witness and perpetrator? What were the lighting conditions at the time?
5. Witness Characteristics. Was the witness under the influence of alcohol or drugs? Was age a relevant factor under the circumstances of the case?
6. Characteristics of Perpetrator. Was the culprit wearing a disguise? Did the suspect have different facial features at the time of the identification?
7. Memory decay. How much time elapsed between the crime and the identification?
8. Race-bias. Does the case involve a cross-racial identification?
. . . .
9. Opportunity to view the criminal at the time of the crime.
10. Degree of attention.
11. Accuracy of prior description of the criminal.
12. Level of certainty demonstrated at the confrontation.
Did the witness express high confidence at the time of the identification before receiving any feedback or other information?
13. The time between the crime and the confrontation.
[Id. at 291-92.]
Here, defendant obtained a pretrial hearing. Defendant has failed to establish that the trial judge did not base his decision to admit the pre-trial photographic identification on substantial credible evidence in the record. The trial judge stated that:
In sum, [J.S.'s] identification of the defendant was not unduly suggestive. The administration was performed by a double-
blind administrator who provided [J.S.] with proper pre-identification instructions. The photo array was properly constructed with five fillers that generally matched the description of the suspect as provided by [J.S.]. [J.S.] did not receive any feedback during the procedure and after making an identification his statement of confidence was recorded in a supplemental report.
Additionally, J.S. stated to the police after the identification procedure that he was "absolutely sure" that defendant was the person that struck him with the black Mercedes. J.S. provided a detailed description of defendant, which included defendant's facial structure, his skin color, his lack of facial hair as well as hair color, and his approximate age. This was not a cross-racial identification. J.S. reported to the police that he saw the defendant's face clearly when he was being dragged by the black Mercedes.
Furthermore, the administrator, Detective Parsley, testified that she read the instructions to defendant and followed standard procedure. As the trial judge opined:
Although Parsley testified that she was a blind administrator, she was actually "double-blind" in this instance. Henderson defines a double-blind administrator as one who does not know who the actual suspect is. Here, Parsley testified that she had no involvement with the investigation before the identification procedure, did not prepare the photo array and did not know the defendant. As such, [J.S.'s] identification procedure was administered in a double-blind fashion.
II
Defendant challenges his conviction for third-degree aggravated assault by "purposely or knowingly caus[ing] bodily injury to another with a deadly weapon," N.J.S.A. 2C:12-1(b)(2) (subsection (b)(2)). He contends that a motor vehicle cannot be considered a "deadly weapon" as a matter of law, absent an intent to cause serious bodily injury.
The Legislature has provided that, "[i]n chapters 11 through 15 [of Title 2C], unless a different meaning plainly is required":
"Deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.
[N. J.S.A. 2C:11-1(c).]
The use of an object like a car as a weapon depends on context: "'did a particular defendant possess a particular object at a particular time and in a particular situation with the intention of using it as a weapon.'" State v. Rolon, 199 N.J. 575, 583 (2009) (quoting State v. Riley, 306 N.J. Super. 141, 147 (App. Div. 1997)). Here, defendant used the Mercedes in a manner which is known to be capable of producing death or serious bodily injury. The Mercedes thus falls within the statutory definition of "deadly weapon." "A deadly weapon is so broadly defined in N.J.S.A. 2C:11-1(c) that there can be no doubt that a motor vehicle may be so classified." State v. Parker, 198 N.J. Super. 272, 279 (App. Div. 1984), certif. denied, 99 N.J. 239 (1985).
In Parker, we "conclude[d] a person who purposely or knowingly causes another person serious bodily injury with a motor vehicle violates N.J.S.A. 2C:12-1(b)(1)." Ibid. We reached the opposite conclusion regarding N.J.S.A. 2C:12-1(b)(3) because it only required "reckless[ness]." Parker, supra, 198 N.J. Super. at 279.
Here, applying the plain statutory language to subsection (b)(2) leads us to conclude that a car may be a deadly weapon for the purpose of this statute. Unlike N.J.S.A. 2C:12-1(b)(3), recklessness is not sufficient for conviction under subsection (b)(2). Rather, subsection (b)(2) permits conviction only if the defendant "purposely or knowingly causes bodily injury to another with a deadly weapon." N.J.S.A. 2C:12-1(b)(2). Subsection (b)(2) thus has the same demanding mental state as N.J.S.A. 2C:12-1(b)(1), which Parker held properly covered assaults by automobile.
Further, subsection (b)(2) is applicable to the same type of violence which Parker held should be covered by the aggravated assault statutes, namely "if an operator of a motor vehicle purposely or knowingly runs down a pedestrian." Parker, supra, 198 N.J. Super. at 279. There is no other crime covering use of a motor vehicle to purposely or knowingly cause bodily injury to a pedestrian. Just as when a person uses a gun or a knife to assault an individual, intending only to hurt the victim in a minor fashion, so too if a person purposely or knowingly drives into a victim, the actor runs the risk of inflicting more harm than intended due to the use of a deadly weapon.
We must apply the plain language of subsection (b)(2) and N.J.S.A. 2C:11-1(c) here. Absent constitutional infirmity, "when the language of a statute is clear on its face, 'the sole function of the courts is to enforce it according to its terms.'" State v. Frye, 217 N.J. 566, 575 (2014) (quoting Hubbard v. Reed, 168 N.J. 387, 392 (2001)).
The judge did not charge the jury incorrectly. As the judge charged the jury, a car is a deadly weapon if it "is known to be capable of producing death or serious bodily injury[.]" N.J.S.A. 2C:11-1(c). The fact that defendant only intended to cause bodily injury with the car does not change the nature of the car as a deadly weapon.
III
Finally, defendant objects as plain error that is "clearly capable of producing an unjust result," Rule 2:10-2, to various statements admitted without objection. These statements include J.S.'s testimony about his Internet search and an officer's acknowledgment of that search, as well as S.S.'s comment concerning how he felt when his brother was hit by the car. The trial judge did not have an opportunity to rule on the admissibility of these comments.
Had any of these statements appeared inadmissible and prejudicial to counsel at the time, defense counsel would have objected. See State v. Frost, 158 N.J. 76, 84 (1999) ("The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made."). We would then have reviewed the judge's ruling for an abuse of discretion. State v. J.A.C., 210 N.J. 281, 295 (2012) (citation omitted). Without an objection, we do not have the benefit of reviewing the trial judge's reasoning concerning admission of the statement at the time it was made, in the context of the trial. Given our standard of review, defendant's remaining arguments regarding the court's admission, without objection, of these statements are without sufficient merit to require further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION