Opinion
DOCKET NO. A-1346-11T2
04-01-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MAYLEEK MCINNIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-02-0163.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from his conviction for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. His main argument, raised for the first time on appeal, is that the State failed to record the details of two out-of-court identifications in violation of State v. Delgado, 188 N.J. 48, 58-64 (2006). We remand.
In February 2009, a Mercer County Grand Jury indicted and charged defendant with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. In August 2010, he pled guilty to first-degree aggravated manslaughter and, as part of the plea agreement, the State agreed to dismiss the remaining charges. At the plea hearing, defendant testified that he confronted the victim, fired one shot, and killed him.
Defendant filed a motion to suppress two out-of-court identifications. In April 2010, the judge conducted a Wade hearing and listened to testimony from Detective Gary Britton, and two witnesses, Aquilla Travis and Naim Travis, each of whom prepared two signed statements. In June 2010, the judge made his findings of fact and conclusions of law. We discern the following facts from the testimony and documents used at the Wade hearing.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The shooting occurred at approximately 1:40 p.m., on April 1, 2008. The victim was Naim's brother and Aquilla's older cousin. Detective Britton asked the witnesses to view photographs in the police station on April 1, 2008, and then on April 30, 2008. Detective Britton acted as the lead detective and the contact person in the police department for the victim's family. As such, he talked to Naim Travis throughout the month of April 2008.
Naim was talking to the victim and two females when he observed an individual run out from behind a building and shoot at the victim. He described the shooter, who was between eight and ten feet from him during the shooting, as a black male with light skin, thin build, and approximately five feet nine inches to six feet tall. Defendant was wearing a black hooded sweatshirt, blue jeans, a wave cap, and black shoes. The shooter ran away immediately after the incident.
Aquilla did not witness the shooting. Rather, she exited a deli two blocks from the incident, heard the shooting, and then witnessed an individual running in her direction. The individual stopped, made eye contact with her when he was approximately twenty-two feet away from her, and then started running again. She identified the person as a black male, between five feet eight inches and five feet ten inches tall, wearing a black hooded sweatshirt, light blue pants, and black boots. She noticed the individual holding his right hand inside his sweatshirt, which she believed concealed a gun.
On April 1, 2008, the witnesses looked at photographs in the police station. Naim arrived at the station at 2:30 p.m. and examined approximately 1000 photographs for seven hours, until he prepared his first statement at 9:30 p.m. He selected two photographs. He stated that one person looked somewhat like the shooter, but he was ninety-nine percent sure the other photograph depicted the shooter. The police also showed him photo arrays of possible suspects, but he did not recognize anyone in the arrays. Aquilla looked at an eight-person photograph array. She identified, as the shooter, with eighty percent accuracy, the same person that Naim identified with ninety-nine percent conviction. She too prepared a statement on April 1, 2008.
The parties did not produce the April 1, 2008 statements
Within a few days of the shooting, Aquilla received information from another person that the shooter's first name was Mayleek, and that he had a tattoo on his face. She told Naim about what she had heard, but neither contacted Detective Britton. On April 28, 2008, Aquilla noticed, from within three feet, the same person she had seen on the day of the shooting, and she observed that he had a tattoo on his face.
On April 29, 2008, Naim and Aquilla returned to the police department and looked at more photographs. The detective printed out several photographs and the witnesses looked at them one at a time. Because not every individual had a tattoo, the detective applied whiteout on the photograph below the right eye of each person. Naim and Aquilla identified defendant with 100% certainty as the shooter. The witnesses each gave oral statements dated April 30, 2008, supplementing their previous statements.
During the Wade hearing, the judge focused on whether the pre-trial identification of defendant was impermissibly suggestive. The judge explained that "defendant must prove by a preponderance of evidence that the pretrial identification is so suggestive as to result in a substantial likelihood of misidentification." At the end of the Wade hearing, the judge concluded that defendant failed to meet his burden. Thereafter, defendant pled guilty, and the judge imposed an eighteen-year sentence pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, in accordance with the plea agreement, and ordered restitution. This appeal followed.
On appeal, defendant raises the following points:
POINT I
THE MOTION TO SUPPRESS THE OUT-OF-COURT IDENTIFICATIONS SHOULD HAVE BEEN GRANTED BECAUSE THE STATE'S FAILURE TO RECORD NECESSARY DETAILS OF THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS CONTRARY TO STATE V. DELGADO.
POINT II
THE RESTITUTION ORDER SHOULD BE VACATED AND THE MATTER REMANDED FOR RECONSIDERATION.
Because the State is not opposed to an ability-to-pay hearing upon defendant's release from prison, we need not reach this contention.
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We begin by addressing defendant's contention, raised for the first time, that the judge erred by denying his motion to suppress because the State failed to record "the necessary details of the photographic identification procedure," in violation of Delgado, supra, 188 N.J. at 58-64.
In Delgado, the Court addressed whether the police had a duty to record "the details of out-of-court identification procedures that result in positive identifications and non-identifications as well as near misses and hits." Id. at 58. Even though the police in Delgado did not make a detailed record of the out-of-court identification procedures, the Court concluded that there was no credible evidence that defendant was denied exculpatory information. Id. at 64. The Court stated that the defendant "learned the specifics of every positive, equivocal, and missed out-of-court identification." Ibid.
The Court, in upholding the defendant's convictions after a jury trial, then invoked its supervisory powers under Article VI, Section 2, Paragraph 3 of the New Jersey State constitution and stated that
as a condition to the admissibility of an out-of-court identification, law enforcement officers make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results. Preserving the words exchanged between the witness and the officer conducting the identification procedure may be as important as preserving either a picture of a live lineup or a photographic array. When feasible, a verbatim account of any exchange between the law enforcement officer and witness should be reduced to writing. When not feasible, a detailed summary of the identification should be prepared. In the station house where tape recorders may be available, electronic recordation is advisable, although not mandated. Needless to say, the use of a tape recorder will minimize, if not eliminate, dueling testimony recounting what actually occurred at an identification procedure. Tape recording will serve as much to protect the police from claims of improper conduct as it will to preserve evidence. Defendants will be entitled in discovery to any reports or tape recorded statements covering an identification procedure.see also State v. Earle, 60 N.J. 550, 552 (1972) (indicating that "enforcement authorities should . . . make a complete record of an identification procedure if it is feasible to do so, to the end that the event may be reconstructed in the testimony").
[Id. at 63 (emphasis added) (footnote omitted).]
On this record, we are unable to evaluate the merits of defendant's contention that the judge erred. In fairness to the judge, defendant never made the argument to him that the State failed to comply with the dictates of Delgado. Although defendant produced the April 30, 2008 statements from the witnesses, the parties did not produce on appeal any written record prepared by law enforcement "detailing the out-of-court identification procedure." Delgado, supra, 188 N.J. at 63. Defendant contends that the police had recording equipment, but failed to use it. Moreover, he argues that "the investigation reports" make no mention of the "dialogue between the witness and the interlocutor." We recognize that the Court directed that
[w]hen feasible, a verbatim account of any exchange between the law enforcement officer and witness should be reduced to writing. When not feasible, a detailed summary of the identification should be prepared. In the station house where tape recorders may be available, electronic recordation is advisable, although not mandated.Nevertheless, the judge made no findings of fact or conclusions of law regarding whether the State followed the dictates of Delgado, and if not, whether defendant was prejudiced. We therefore remand and direct that the record be developed in that regard.
[Ibid. (emphasis added).]
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION