Opinion
DOCKET NO. A-4074-12T3
05-08-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM MCCRAY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-10-1943. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant William McCray appeals from his conviction, after a jury trial, of second-degree conspiracy to commit carjacking, robbery and kidnapping, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-2(b), N.J.S.A. 2C:15-1(a) and N.J.S.A. 2C:13-1(b)(1) (count one); first-degree carjacking, N.J.S.A. 2C:15-2(a)(1) to (3) (count two); first-degree robbery, N.J.S.A. 2C:15-1(a) (count three); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count four); first-degree employing a juvenile to commit carjacking, N.J.S.A. 2C:24-9 (count five); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count six); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count seven); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eight) and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count nine).
On appeal, defendant presents the following issues for our consideration:
POINT I
THE BRANCH ERROR - WHICH OCCURRED WHEN THE PROSECUTOR ASKED A DETECTIVE WHETHER HE HAD ESTABLISHED THAT THE DEFENDANT AND CODEFENDANT WERE SUSPECTS BEFORE ASSEMBLING AND PRESENTING A PHOTO ARRAY TO THE VICTIM, AND THE DETECTIVE TESTIFIED THAT HE HAD AND TOLD THE JURY THAT DEFENDANT WAS A SUSPECT BECAUSE OF WHAT THE VICTIM HAD PREVIOUSLY TOLD POLICE AS WELL AS "INFORMATION THAT I DEVELOPED ALONG THE WAY" - VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO CONFRONTATION AND CONSTITUTES PLAIN ERROR, WORTHY OF REVERSAL. (Not Raised Below).
POINT IIUpon our review of the record, in light of the applicable law, we agree the detective's testimony violated defendant's Confrontation Clause rights. We therefore reverse defendant's convictions and remand for a new trial.
THE EVIDENCE PRESENTED WAS LEGALLY INSUFFICIENT TO CONVICT DEFENDANT OF KIDNAPPING.
I.
The record discloses the following facts. On appeal from a jury verdict, we accept as true the facts supporting the guilty verdict and draw all permissible inferences in favor of the State. See Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 486 (App. Div.), certif. denied, 212 N.J. 198 (2012).
At approximately 3:30 a.m. on May 8, 2010, Honorato Silva arrived at his home on Second Avenue in Newark in his car, an Acura. Silva proceeded to the garage around the corner on Sixth Street and opened the gate so that he could park inside. He noticed a beige Dodge Durango making a right turn onto Second Avenue. After parking his car and walking half-way from the garage to his house, Silva noticed the Durango make a sharp U-turn. Becoming fearful, he ran towards his front door and put the key into the lock. However, before he was able to open the door, one of the Durango's occupants — later identified as Y.J., a juvenile — approached Silva from behind and pistol-whipped him to the ground. Y.J. pointed the gun in Silva's face and took his wallet. Noticing Silva's keys still dangling from the door-knob, Y.J. asked him what kind of car he drove, threatening to shoot Silva when he was slow to respond. Y.J. proceeded to take the keys and walk around the corner to the garage area, leaving Silva alone by the front door.
At this point someone yelled from within the Durango, "[g]o get him, bring him with you." Another individual, later identified by Silva as defendant, emerged from the Durango and approached Silva as he sat by his front door. Silva described defendant as having "short dreads, [and a] little goatee." Defendant stuck what Silva believed to be a gun to Silva's back and walked him from the front door to the garage on Sixth Street. When the pair reached the garage, defendant pistol-whipped Silva, knocking him to the ground. A third individual still within the Durango told defendant to shoot Silva, to which defendant replied: "[N]ah, nah, nah. I put him smooth, I put him smooth, he's sleeping."
After hearing this exchange, Silva decided to feign unconsciousness by lying motionless on the ground at the garage's entrance where he fell. Y.J. handed defendant his gun and got into the Acura. Over the next ten minutes, Y.J. managed, with great difficulty, to pull the car out from the garage. Defendant noticed Silva moving on the ground and kicked and hit him, again pointed the gun in his face and inquired as to whether he had any more money or valuables. When Silva replied "no," defendant asked about his clothing and took Silva's sneakers, earrings and hat before getting into the Acura with Y.J. and driving away. When the police arrived at the scene roughly two hours later, Silva accompanied them to the station and gave a description of his assailants. Several days later his car was located, but no useful forensic evidence was recovered.
Detective Anthony Lima of the Newark Police Department (NPD) was assigned as lead detective. Lima began his investigation by reviewing Silva's statements to police and the incident reports. The NPD was investigating a series of carjackings, during one of which a victim's cell phone was taken from the stolen vehicle. Police traced the missing phone to a woman who, when interviewed by police, stated that defendant, her boyfriend, had given it to her. Based upon this information, police focused their investigation on defendant and Y.J., and included their photos in the arrays prepared for Silva.
Regarding these purportedly related incidents, the record reflects only that "nothing ever happened with those cases."
On May 17, 2010, Lima went with NPD Sergeant Julio Benevente to Silva's home and brought two prepared photo arrays, each containing a photo of one of the suspects. Benevente served as the "blind," an officer unfamiliar with the specifics of the case who administers the photo array to help protect against any impermissibly suggestive behavior on the part of police. Lima remained outside Silva's home while Benevente displayed the two separate photo arrays to Silva in the kitchen. During the first array, Silva positively identified defendant's photo as the second individual to exit the Durango who brought him from the front door to the garage area before assaulting and robbing him. Silva then identified Y.J. as the juvenile who initially assaulted him at his door and took his car keys. In neither instance did Silva need to review the photographs a second time. Only after Silva's identifications were recorded by Benevente did Lima enter the dwelling to review and confirm them.
Defendant was subsequently arrested and charged for his role in the carjacking. The trial court denied defendant's motion for a Wade hearing to challenge Benevente's administration of the photo arrays, concluding the procedure fully complied with Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures.
At the time his arrest warrant was issued, defendant was incarcerated on an unrelated charge.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). "A Wade hearing is required to determine if the identification procedure was impermissibly suggestive and, if so, whether the [out-of-court] identification is reliable." State v. Micelli, 215 N.J. 284, 288 (2013).
The main issue at trial was the identity of the individuals that assaulted Silva on May 8, 2010. Silva testified to the facts surrounding the events of that evening. Benevente testified regarding his administering the photo arrays to Silva on May 17, 2010, and Detective William O'Dwyer of the NPD's Crime Scene Unit testified to the dearth of physical evidence gleaned from the vehicle. Of particular concern on appeal is the testimony of Lima, the lead detective. On direct examination, Lima was discussing the photo arrays when the following exchange with the prosecutor took place:
Q: And you put together these photo arrays?
A: Yeah.
Q: Okay. And did you have a description of the two suspects?
A: Yes.Defense counsel did not object to either the question or Lima's response. The State did not call defendant's girlfriend to testify and did not otherwise offer any evidence relating to defendant's alleged role in the string of carjackings that led to his photo's inclusion in the array displayed to Silva.
Q: And where did you get that description from?
A: The victim's basic information, plus the information I developed along the way.
[(emphasis added).]
At the close of the State's case, defendant moved for a judgment of acquittal on all charges based on insufficient evidence, which the trial court denied. Defendant elected not to testify and presented no witnesses. On September 26, 2012, the jury found defendant guilty on all counts. The court subsequently sentenced defendant to twenty-five years of incarceration with an eighty-five percent parole ineligibility.
This appeal ensued.
II.
We first note defendant's challenge to Lima's testimony has been presented for the first time on appeal, as no objection was raised at trial. Our review therefore considers whether the admission of the disputed testimony rises to the level of "plain error." State v. Maloney, 216 N.J. 91, 104 (2013). Under this standard, a judgment of conviction will be reversed only if the error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice; "the error will be disregarded unless a reasonable doubt has been raised whether the jury came to a result that it otherwise might not have reached." State v. R.K., 220 N.J. 444, 456 (2015); see also State v. Castagna, 187 N.J. 293, 312 (2006) ("'[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.'" (alteration in original) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967))).
Defendant argues the testimony elicited from Lima, that he got defendant's description from "the victim's basic information, plus the information [Lima] developed along the way," violated his constitutional right to confront the witnesses against him. Defendant relies on the Court's decision in State v. Branch, 182 N.J. 338 (2005), to contend this statement served only to improperly bolster Silva's identification of defendant by suggesting that there was additional out-of-court information pointing to defendant's guilt. We agree.
Both the federal and New Jersey Constitutions "guarantee a criminal defendant the right to confront 'the witnesses against him.'" Id. at 348 (quoting U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10). As such, "[t]he right of a party to confront witnesses in court is one of the principal values protected by the hearsay rule." Id. at 342. "The 'common thread' that renders testimony about information received from non-testifying third parties inadmissible 'is that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant.'" State v. Weaver, 219 N.J. 131, 152 (2014) (quoting Branch, supra, 182 N.J. at 351). As to photo arrays, "an officer's reasons for placing a particular photo in an array are irrelevant and prejudicial," and therefore can "improperly bolster[] the victim's account and invade[] the role of the jury to weigh the victim's credibility." State v. Lazo, 209 N.J. 9, 12-13 (2012) (citing Branch, supra, 182 N.J. at 352).
We note that "[t]he Confrontation Clause does not condemn all hearsay." Weaver, supra, 219 N.J. at 151. There is not a per se violation of the Confrontation Clause when, for instance, a police officer explains why "he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" State v. Bankston, 63 N.J. 263, 268 (1973). When a defendant "opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive," that officer may refute that suggestion "despite the invited prejudice the defendant would suffer." Branch, supra, 182 N.J. at 352. But this exception applies only in "contexts other than a photographic identification" and, further, "only if necessary to rebut a suggestion that [police] acted arbitrarily" and the testimony will not suggest a defendant's implication in a crime by an unknown individual. See ibid. Therefore, this narrow exception is not relevant here.
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Here, Lima's reference to the information he "developed" that led to defendant, likely encompassed the statement from defendant's non-testifying girlfriend that she received a stolen phone from him, thus linking defendant to the prior carjacking. Moreover, Lima's response impermissibly suggested to the jury that the description of defendant which, in turn, resulted in his photo's inclusion in the array shown to the victim rested, at least in part, on evidence the jury did not hear. Since the victim was the sole witness to testify about the incident itself — Lima and Benevente addressed only the array process and other tangential matters — any information in addition to "the victim's basic information" necessarily suggested statements from out-of-court declarants, either directly or through the double-hearsay of police reports.
The State's attempt to distinguish Branch and its progeny based upon the specific wording of either the prosecutor's questions or Lima's response is unavailing. See Lazo, supra, 209 N.J. at 15 (addressing detective's testimony as to how and why he prepared photo array); Branch, supra, 182 N.J. at 347 (focusing on prosecutor's question on how defendant became a suspect); State v. Dehart, 430 N.J. Super. 108, 113 (App. Div. 2013) (reviewing response to question on how police developed the defendant as a suspect); see also Lazo, supra, 209 N.J. at 19 ("The detective [testified] that he included defendant [] in the array '[b]ecause of his similarities to the suspects that were described by the victim.'" (third alteration in original)); Branch, supra, 182 N.J. at 342 (objecting to detective's testimony "that he included defendant's picture [after developing him] as a suspect 'based on information received'"); Dehart, supra, 430 N.J. Super. at 113 (attributing inclusion of defendant's photo to statement of unnamed third-party implicating defendant).
The Court has made abundantly clear that, rather than focusing on the particular language of a challenged question and answer, Branch prohibits a testifying officer from "'imply[ing] to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant.'" Weaver, supra, 219 N.J. at 152 (quoting Branch, supra, 182 N.J. at 351). Consequently, any variation between "information received" and "information developed" is a distinction without a difference. Put simply, "[t]here was no legitimate need or reasons for [Lima] to tell the jury why he placed defendant's picture in the photographic array," since "[t]he only relevant evidence was the identification itself." Lazo, supra, 209 N.J. at 21 (first alteration in original) (citation and internal quotation marks omitted). As a result of his testimony, "the jury heard irrelevant, 'gratuitous hearsay testimony' that violated defendant's right to confrontation and the rules of evidence." Dehart, supra, 430 N.J. Super. at 115 (quoting Branch, supra, 182 N.J. at 348).
Moreover, given the centrality of the identification of the perpetrators at trial and the dearth of physical evidence connecting defendant to the crime, we are unable "to declare a belief that [Lima's impermissible testimony] was harmless beyond a reasonable doubt." Castagna, supra, 187 N.J. at 312 (citation and internal quotation marks omitted); see also Branch, supra, 182 N.J. at 354 ("We cannot say that the error did not have the capacity to cause an unjust result. R. 2:10-2. Accordingly we must reverse defendant's convictions."); Dehart, supra, 430 N.J. Super. at 115 (reversing where identification was "the main issue at trial" and "there was nothing linking defendant to the crime" until third-party, non-testifying declarant tipped police off).
We conclude the admission of Detective Lima's testimony about the origins of defendant's description violated his constitutional right to confront the witnesses against him and therefore constituted plain error. We reverse defendant's convictions and remand for a new trial in conformance with this opinion.
In light of our holding, we need not address defendant's second argument concerning the sufficiency of the evidence to support a kidnapping conviction.
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