State of New Jersey v. Alfred J. Smith

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0173-12T3

STATE OF NEW JERSEY,

APPROVED FOR PUBLICATION

Plaintiff-Respondent,

July 29, 2014

v.

APPELLATE DIVISION

ALFRED J. SMITH, a/k/a

AL J. LEWIS, JEROME SMITH,

Defendant-Appellant.

_______________________________

Submitted April 8, 2014 - Decided July 29, 2014

Before Judges Sapp-Peterson, Lihotz and

Hoffman.

On appeal from the Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 09-12-1062.

Joseph E. Krakora, Public Defender, attorney

for appellant (Jason A. Coe, Assistant

Deputy Public Defender, on the briefs).

John J. Hoffman, Acting Attorney General,

attorney for respondent (Jeffrey P.

Mongiello, Deputy Attorney General, on the

brief).

The opinion of the court was delivered by

LIHOTZ, J.A.D.

Defendant Alfred J. Smith appeals from a judgment of

conviction for second-degree robbery, N.J.S.A. 2C:15-1 (count

one) and third-degree hindering apprehension, N.J.S.A. 2C:29-

3(b)(4) (count two), entered following a jury trial. Prior to

trial, defendant challenged the admissibility of the victim's

out-of-court identification. His motion to suppress was denied.

Following conviction, defendant was sentenced to a ten-year

term, subject to the eighty-five percent period of parole

ineligibility imposed by the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2, on the second-degree robbery conviction, and

a concurrent five-year term on the third-degree hindering

apprehension conviction.

On appeal, defendant argues:

POINT I

THE TRIAL COURT SHOULD NOT HAVE ALLOWED THE

SHOW[-]UP IDENTIFICATION TO BE USED AT TRIAL

BECAUSE IT DID NOT SATISFY CONSTITUTIONAL

STANDARDS OF RELIABILITY.

POINT II

THE PROSECUTOR'S APPEAL TO THE JURY TO

CONVICT SMITH IN ORDER TO PROTECT THEMSELVES

AND THE COMMUNITY WAS IMPROPER AND HIGHLY

PREJUDICIAL. (not raised below)

POINT III

OFFICER MARTINA IMPROPERLY PROVIDED LAY

OPINION TESTIMONY ON AN ISSUE WHICH WAS NOT

BEYOND THE KEN OF THE AVERAGE JUROR. (not

raised below)

Following our review, we conclude the motion judge erred in

denying defendant's motion to suppress the identification

testimony. Accordingly, we reverse the suppression order,

2 A-0173-12T3

vacate his conviction and remand for further proceedings,

including a new trial.

These facts are taken from the pre-trial Wade1 hearing. The

State presented the testimony of Plainfield Police Officers

Edward Jackson and Charles Martina. The defense called the

victim, Josephine DiMeglio.

Officer Jackson testified he responded to a call received

at approximately 10:30 p.m., on July 10, 2009, from DiMeglio who

was assaulted and robbed as she walked toward her home.

Specifically, DiMeglio was suddenly attacked from behind by a

man trying to snatch her purse. A struggle ensued, during which

the assailant slapped DiMeglio, injuring her and causing her to

fall to the ground. The scuffle continued briefly as DiMeglio

resisted, but ultimately she relaxed her grip and the assailant

fled with her purse.

DiMeglio called 9-1-1. Then, approximately ten minutes

after the robbery, DiMeglio described her attacker to Officer

Jackson as "a tall black male" wearing "jeans and a dark shirt."

She also stated the attacker wore a brown windbreaker. Officer

Jackson confirmed on cross-examination the description was

"[j]ust a tall black male and a clothing description."

1

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L.

Ed. 2d 1149 (1967).

3 A-0173-12T3

Officer Jackson radioed the description and within ten

minutes, Officer Martina, who was canvassing the area,

encountered defendant four blocks away sitting in a park with

others. Officer Martina believed defendant matched the radioed

description and he informed Officer Jackson, who in turn told

DiMeglio "we might have someone fitting the description

. . . ." Officer Jackson "asked her if she can take a ride [to]

see if she can make a positive ID on the person." Officer

Jackson brought DiMeglio to the park. He recalled defendant was

standing next to Officer Martina. Without hesitation, DiMeglio

identified defendant as her assailant.

After DiMeglio viewed defendant at the show-up, she

provided her written statement to police. In that statement,

DiMeglio described her attacker as: "Afro-American, 6feet [sic]

tall, 5-8, brown shirt, cap and black pants."

Officer Martina also testified. He recalled the

description of DiMeglio's assailant radioed from Officer Jackson

was "[a] black male, black shirt, brown windbreaker, over six

feet tall." As he drove toward the park he aimed his spotlight

on "a group of people, [and an] individual matching the

description[] immediately looked startled and scared."

Defendant was among those in the group. He wore a black hoodie

and brown pants; he did not have a windbreaker. Officer Martina

4 A-0173-12T3

acknowledged the description he received was not the most

detailed and did not include the alleged assailant's age, the

presence or absence of facial hair, or whether he was bald.

When asked by Officer Martina, defendant gave his name as

"Thomas J. Smith." Once Officer Martina was told DiMeglio

identified defendant as her attacker, he was arrested and

charged with second-degree robbery and third-degree hindering

apprehension.

When arrested, defendant possessed a $5 bill, $1.75 in

change, a silver chain, four keys, two shoestrings, a driver's

license, three cell phone batteries, a cell phone, and a brown

cap. DiMeglio's later-provided police statement listed the

following as stolen: "a gold canvas bag" containing her wallet,

two money orders, $100 cash, and her identification cards. None

of these effects were found on defendant's person or recovered.

Defendant called DiMeglio during the hearing. She

described the incident, confirming an assailant approached her

from behind and grabbed her purse, but she would not let go.

She was "shocked" and "started to scream," because she did not

want the assailant to take her property. The attacker slapped

DiMeglio on her right cheek, bruising her lip and causing her to

fall. She was still holding the leash of her bag when the

assailant dragged her in an effort to get her to release her

5 A-0173-12T3

grip. She ultimately let go and he fled with her purse.

DiMeglio admitted the events unfolded "very quickly."

DiMeglio noted the attack took place at nighttime, but

there was one streetlight across the street. Defense counsel

asked her to describe the most prominent details she recalled

about her attacker. For the first time, DiMeglio stated her

assailant "was smoking a cigar," saying he had a "Black and Mild

in his mouth." She explained he had hair, although noting

defendant as he sat in the courtroom was bald. The remaining

details of the attacker's description included that he "was

tall," had a scar on his mouth, "a cap on his head," and wore

"something black and something brown[.]"

DiMeglio was also questioned about the show-up. When she

was taken to the park, she was told "they had apprehended him

and he was across the street in the park, . . . [and they wanted

her] to take a look at him and to see if he was the man that

mugged [her]." DiMeglio recalled a man standing between two

police officers. She immediately recognized his face. When

asked "[w]hat was the greatest feature that confirmed to you

this was the same man[,]" she stated: "[h]e had the same clothes

on when he robbed me and it was him. He had the black jacket

[and] brown pants. I recognized his face when he mugged me. It

was his features." Pressed to reveal the identifying features

6 A-0173-12T3

of her attacker, DiMeglio stated: "It was his eyes. . . . They

were mean." When questioned by the State, DiMeglio stated she

was one "[h]undred percent sure" defendant was her attacker.

Considering defendant's motion to suppress DiMeglio's out-

of-court identification, the motion judge found the police

officers' testimony credible in establishing the events.

Further, the motion judge found DiMeglio "extremely credible"

and "extremely accurate." Despite the suggestiveness of the

procedure, the motion judge determined DiMeglio's identification

was reliable because she "had a close physical one-on-one

contact with . . . defendant and had ample opportunity to view

him"; her account was detailed suggesting she "paid attention to

the details of her assailant"; "the show[-]up occurred almost

immediately after the incident and defendant was wearing similar

clothes and was similar in appearance to [DiMeglio's] original

description . . . made about ten minutes earlier"; DiMeglio was

able to identify defendant, with certainty, a finding supported

by the officers' testimony about the immediacy of her

recognition of defendant and her own testimony that she was "one

hundred percent" certain defendant was her assailant; and she

provided the identification proximate to the attack, "shortly

after the incident, approximately ten minutes[,]" and only three

7 A-0173-12T3

or four blocks from the scene of the crime. Defendant's motion

to suppress the identification was denied.

The case was tried over two days by another Law Division

judge. Defendant attacked the State's identification evidence.

We note DiMeglio's trial testimony varied in many significant

respects from her testimony at the Wade hearing. DiMeglio

stated her attacker approached her not from behind, but

"sideways," from her left side. She stated she saw the

assailant's face, first as she walked along the street then the

entire time he tugged at her purse until he successfully

dislodged her grip and ran off. She identified two working

streetlights in the area and recalled her description of the

attacker as an "Afro-American male, tall . . . wearing [a] black

hoodie and brown pants."

At trial the 9-1-1 tape was played. During her call,

DiMeglio told the operator it was dark, but she described the

man as wearing a black shirt, a brownish windbreaker and black

pants. When asked about the variations of her descriptions of

the assailant's clothing from her initial 9-1-1 call to trial,

DiMeglio testified she was initially "shaken up" and "didn't

really get to match everything, put everything together[.]"

DiMeglio did not describe any specific facial or physical

features of her attacker. In her trial testimony, DiMeglio

8 A-0173-12T3

never mentioned the attacker was wearing a cap; insisted he had

no facial hair; and stated defendant could not have had a scar

on his mouth.

In recounting the show-up, DiMeglio testified she was told

police had someone matching the description of her attacker.

They drove her to the park. She viewed the man standing between

two police officers and she identified him as her attacker.

DiMeglio stated she was "a thousand percent sure" because she

remembered his face.

On cross-examination, DiMeglio admitted the events occurred

"quick[ly]," taking "ten minutes." She stated she was extremely

scared after her assailant struck her and it was dark. She also

acknowledged that when she described her attacker to police she

stated only that he was tall, black and wore a black shirt and

blue jeans. Next, in giving her statement to police, she

described the assailant as 5'8" or 6' and wearing a brown cap,

black pants and brown shirt.

The jury returned a guilty verdict on both charges.

Defendant appealed.

The Due Process Clause of the Fourteenth Amendment

prohibits the admission of an unreliable out-of-court

identification, which resulted from impermissibly suggestive

procedures. Manson v. Brathwaite, 432 U.S. 98, 106, 97 S. Ct.

9 A-0173-12T3

2243, 2249, 53 L. Ed. 2d 140, 149 (1976); see also United States

v. Wade, 388 U.S. 218, 227-32, 87 S. Ct. 1926, 1932-35, 18 L.

Ed. 2d 1149, 1157-60 (1967) (holding pretrial identification is

a critical juncture in the course of a criminal prosecution).

On one hand, eyewitness evidence is "inherently suspect";

however, on the other, it is "equally well recognized that in

criminal actions an eyewitness's identification may be the most

crucial evidence." State v. Madison, 109 N.J. 223, 232 (1998)

(citation omitted), abrogated in part by State v. Henderson, 208

N.J. 208 (2011).

A sea change has recently occurred in the methodology for

examining suggestive police identification procedures and

ascertaining the reliability of resulting out-of-court

identifications. See Henderson, supra, 208 N.J. at 288-99;

State v. Chen, 208 N.J. 307, 327 (2011). Historically, courts

followed the United States Supreme Court's two-part test to

determine the admissibility of an eyewitness's out-of-court

photographic identification, set forth in Manson v. Brathwaite,

432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), which was

adopted by the New Jersey Supreme Court in State v. Madison, 109

N.J. 223 (1988).

In Manson, the Highest Court expounded on the test

initially identified in Simmons v. United States, 390 U.S. 377,

10 A-0173-12T3

88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), which requires a court

to determine whether the out-of-court photographic

identification procedures used were impermissibly suggestive.

Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d

at 154. If so, the court then must examine whether the

objectionable procedure resulted in "a very substantial

likelihood of irreparable misidentification." Id. at 116, 97 S.

Ct. at 2254, 53 L. Ed. 2d at 155. When examining a challenge to

the admissibility of identification testimony, a court must

assess whether the impermissibly suggestive procedures used by

law enforcement prejudicially affected the identification, by

weighing five factors to "'determine whether . . . sufficient

indicia of reliability'" would "'outweigh the "corrupting effect

of the suggestive identification itself."'" Madison, supra, 109

N.J. at 239 (quoting State v. Ford, 79 N.J. 136, 137 (1979)

(quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53

L. Ed. 2d at 154)). These factors "include the opportunity of

the witness to view the criminal at the time of the crime, the

witness' degree of attention, the accuracy of his prior

description of the criminal, the level of certainty demonstrated

at the confrontation, and the time between the crime and the

confrontation." Manson, supra, 432 U.S. at 114, 97 S. Ct. at

2253, 53 L. Ed. 2d at 154.

11 A-0173-12T3

Underscoring "that reliability is the linchpin in

determining the admissibility of identification testimony[,]"

Chen, supra, 208 N.J. at 318 (quoting Manson, 432 U.S. at 114,

97 S. Ct. at 2253, 53 L. Ed. 2d at 154), we note any reliability

determination must be made after assessing "the totality of the

circumstances adduced in the particular case." Madison, supra,

109 N.J. at 233 (citing Neils v. Biggers, 409 U.S. 188, 199, 93

S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).

After Madison, the Court again considered eyewitness

identification challenges in State v. Delgado, 188 N.J. 48

(2006). Noting "[m]isidentification is widely recognized as the

single greatest cause of wrongful convictions in this

country[,]" id. at 60, the Court chose to exercise its

supervisory powers, granted by Article VI, Section 2, Paragraph

3 of the New Jersey Constitution, "to require, as a condition to

the admissibility of out-of-court identifications, that the

police record, to the extent feasible, the dialogue between the

witnesses and police during an identification procedure." Id.

at 51. The Court held the admissibility of out-of-court

identifications was conditioned upon the preparation of

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

12 A-0173-12T3

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.

[Id. at 63.]

By that time, "[t]he State's Attorney General ha[d] . . .

recognized that eyewitness identification 'evidence is not fool-

proof,' and made New Jersey the first state to adopt the United

States Department of Justice's procedural recommendations to

increase reliability in photo and live lineups." State v.

Romero, 191 N.J. 59, 74 (2007) (citing Letter from Attorney

General John J. Farmer, Jr., to All County Prosecutors et al.,

at 1 (Apr. 18, 2001) (accompanying Attorney General Guidelines

for Preparing and Conducting Photo and Live Lineup

Identification Procedures)).

The Supreme Court revisited and comprehensively considered

this thorny issue in State v. Henderson, 208 N.J. 208 (2011),

which established a more detailed framework to examine the

admissibility of out-of-court identification testimony, provide

new guidelines to reduce the possibility of misidentification,

offer a more adequate measure for reliability, and deter

potential police misconduct. Id. at 288-99. However, this case

13 A-0173-12T3

was decided before Henderson's new rule of law took effect and

remains subject to the prior rubric of Manson/Madison.2

Following our review, we conclude the motion judge

erroneously found factual support satisfying the Manson/Madison

factors and determined DiMeglio's out-of-court identification

was reliable and admissible at defendant's trial. We determine

the evidence of record insufficient to overcome the fact that

suggestive identification procedures result in a "very

substantial likelihood of irreparable misidentification."

Manson, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155.

Accordingly the out-of-court identification should have been

suppressed.

Show-up procedures used to illicit identification are

suggestive. See State v. Herrera, 187 N.J. 493, 504 (2006)

(recognizing that "one-on-one show[-]ups are inherently

suggestive[,]" because "the victim can only choose from one

person, and, generally, that person is in police custody").

However, indicia of reliability results because the on or near-

the-scene identification is made close in time to the event.

State v. Wilkerson, 60 N.J. 452, 461 (1972). The procedure

also facilitates efficient police work; consequently, the tool

2

See id. at 220 (applying new test prospectively, from

September 4, 2012).

14 A-0173-12T3

has been found permissible. Ibid. Standing alone, a show-up is

not considered impermissibly suggestive. Herrera, supra, 187

N.J. at 504. See also State v. Wilson, 362 N.J. Super. 319, 327

(App. Div.) ("[T]here is no question that there was

suggestiveness present because the defendant was identified

while seated and handcuffed in the back of a police car.

However, such suggestive circumstances did not render the

identification procedure per se improper and

unconstitutional."), certif. denied, 178 N.J. 250 (2003).

Nevertheless, show-up procedures must be scrutinized to

assure police conduct, direct and inadvertent, does not

impermissibly suggest a result to the witness. In this matter,

defendant challenged the procedure used, asserting police failed

to satisfactorily comply with the Delgado recording

requirements. The motion judge rejected this argument and found

the identification procedures were properly executed, such that

they "did not result in a substantial likelihood of irreparable

misidentification." We cannot agree with such an assessment.

The only written record memorializing the show-up procedure

is a brief mention in the July 9, 2010 police incident report:

At that time [Officer] Martina detained the

possible suspect until I was able to drive

the victim to the suspect to see if she

could make a positive [identification] on

this possible suspect. Once I got to the

location of the possible suspect, . . .

15 A-0173-12T3

DiMeglio related right away that he was the

one who robbed her.

The limited comments recorded by police include DiMeglio's

identification, but omit what she was told, her response, or a

statement of the specific procedures employed to effectuate the

show-up.

Officer Jackson testified at the Wade hearing that after

Officer Martina encountered defendant, he "told the victim that

[the officers] might have someone fitting the description and

. . . asked her if she can take a ride with [him] so — see if

she can make a positive [identification] on the person."

However, DiMeglio stated she was told by police "they had

apprehended [her assailant] and he was across the street in the

park, and for me to take a look at him and to see if he was the

man that mugged me." There is a difference in these two

accounts, which displays exactly why a near-contemporaneous

record of the procedure is required. Further, there is no

evidence police instructed DiMeglio that the person located may

not be her attacker; to the contrary the suggestion was the

opposite, as she was told a suspect was apprehended.

Also critical to assessing suggestibility is a description

of the manner in which defendant was detained. Here, it was

learned at the Wade hearing uniformed police officers flanked

defendant. Although not handcuffed, defendant was separated

16 A-0173-12T3

from the others to focus DiMeglio's observation toward him

alone.

We conclude the meagerness of detail recorded in this

incident report does not fulfill Delgado's clear requirements.

Delgado, supra, 188 N.J. at 63 (conditioning admissibility of

out-of-court identifications on creation of a written record

detailing "the out-of-court identification procedure"). See

also Chen, supra, 208 N.J. at 320 (holding Delgado mandates a

reasonable, contemporaneous and detailed account of

identification procedure); State v. Adams, 194 N.J. 186, 202-03

(2008) (same). In mandating the specific procedures to be

followed, the Court stressed, "[t]he importance of recording the

details of what occurred at an out-of-court identification flows

from our understanding of the frailty of human memory and the

inherent danger of misidentification." Delgado, supra, 188 N.J.

at 60. The record requirement protects a defendant's rights

allowing examination of whether the procedure was impermissibly

suggestive.

We next examine whether the identification was reliable.

We conclude it was not sufficiently reliable and determine the

motion judge's findings, articulated in support of the

Manson/Madison factors, was flawed.

17 A-0173-12T3

The judge found DiMeglio's identification reliable because:

(1) DiMeglio "had a close physical one-on-one contact with . . .

defendant and had ample opportunity to view him"; (2) DiMeglio's

description of the incident was detailed and she "paid attention

to the details of her assailant"; (3) "the show[-]up occurred

almost immediately after the incident[,] defendant was wearing

similar clothes[,] and was similar in appearance to [DiMeglio's]

original description that she had made about ten minutes

earlier"; (4) DiMeglio identified defendant with "one hundred

percent" certainty; and (5) the identification was made "shortly

after the incident, approximately ten minutes[,]" and only three

or four blocks from the scene of the crime.

Despite DiMeglio's insistence she viewed her assailant

before and throughout the attack, making her one-hundred and,

later, one thousand percent certain defendant mugged her, the

only consistent descriptive features given of the man who stole

her purse was he was "tall" and "black." As to the attacker's

height, DiMeglio stated her assailant was "tall" or "5'8" to

6'." It was Officer Martina, not DiMeglio, who suggested he

remembered the radio call mentioning the suspect was "over six

feet." We note defendant stands 6'4" tall, making him at least

four and as much as eight inches taller than DiMeglio's

described attacker. Other details provided by DiMeglio were

18 A-0173-12T3

also vague and varied. When the 9-1-1 operator asked her to

describe her attacker, DiMeglio first stated it was dark and

mentioned he wore a black shirt, black pants, and a brownish

windbreaker. That clothing description changed ten minutes

later when she first spoke to police and gave a description that

included "blue jeans" and a "dark shirt." After DiMeglio

observed defendant in the park standing between the police

officers, she adjusted her description to a "brown shirt,"

"black pants," and a "cap." During the Wade hearing, the

clothing description was muddled, as DiMeglio stated the mugger

wore "something black and something brown," and she added he

wore a cap on his head. When pressed by defense counsel,

DiMeglio, for the first time, stated the attacker "was smoking a

cigar" – he had a "Black and Mild in his mouth"; had hair,

although noting defendant as he sat in the courtroom was bald;

had a scar on his mouth; and had "mean" eyes. By the time of

trial, DiMeglio's description again changed and she related

exactly what defendant wore when arrested, a black hoodie and

brown pants.

The motion judge's finding that DiMeglio "paid attention to

the details of her assailant" and offered an accurate

description of her attacker is unfounded. Not only was the

19 A-0173-12T3

clothing description wrong, defendant also had no scar on his

face or mouth and was bald.

Further, there are several facts not discussed by the

motion judge that impact the accuracy of DiMeglio's

identification and undermine any finding of reliability. These

include the darkness of the area, the suddenness of the attack,

and the resulting stress of the assault. See Henderson, supra,

208 N.J. at 247 (citing Gary L. Wells, Applied Eyewitness-

Testimony Research: System and Estimator Variables, 36 J.

Personality & Soc. Pyschol. 1546, 1546 (1978)) (noting

"distance, lighting, or stress" are variables capable of

"affect[ing] and dilut[ing] memory and lead[ing] to

misidentifications").

First, the area of the attack was dark. DiMeglio admitted

it was after nightfall and there was only one streetlight in the

area, located across the street. When she spoke to the 9-1-1

operator she stated she could describe the attacker's clothing,

but offered no distinguishing features other than height and

race. Interestingly, the only distinguishing features DiMeglio

eventually revealed about her attacker were he had hair and a

scar; neither of which corresponded with defendant's appearance.

Second, the attack was sudden, from behind, and was of

brief duration. DiMeglio herself admitted, the assault was

20 A-0173-12T3

"[n]ot too long," "it happened actually very quickly," and she

was "shocked" and "[s]cared."

Another significant issue not addressed by the motion judge

is the Court's prior discussions addressing "cross-racial

impairment," that is, difficulty in "identifying members of

another race[,]" which is "strongest when white witnesses

attempt to recognize black subjects." State v. Cromedy, 158

N.J. 112, 120-21 (1999) (internal quotation marks and citation

omitted). See also Romero, supra, 191 N.J. at 69 (discussing

"the convincing social science data demonstrating the potential

unreliability of cross-racial identifications of African-

American defendants specifically"). "Research suggests that

people generally are better able to identify persons who

resemble themselves or who share familiar physical

characteristics." Id. at 72-73 (citation omitted).

The vagueness and inaccuracy of DiMeglio's description

illustrates this difficulty and casts doubt on her ability to

perceive and describe her attacker. Rather than evaluate the

inconsistencies evinced by the facts, the motion judge simply

honed in on DiMeglio's statement she saw her attacker's face and

was certain it was defendant. DiMeglio's confidence in her

identification and the temporal proximity of the show-up cannot

sufficiently mitigate against the other factors that weigh in

21 A-0173-12T3

favor of a finding of unreliability. See Adams, supra, 198 N.J.

at 204.

The judge also erred in finding DiMeglio accurately

described defendant's clothing. In fact, the various clothing

descriptions offered by DiMeglio were inconsistent and did not

coincide with defendant's appearance on the night of the

robbery. Defendant's pants were brown not black or blue jeans.

Further, he wore a black hooded sweatshirt not a brown

windbreaker. It cannot be overlooked that DiMeglio modified her

description of defendant's clothing over time. After she saw

him at the park, she changed the color of his pants. During the

Wade hearing, the black pants and brown windbreaker morphed to

"something black and something brown." This changed again at

trial and she described her attacker wearing exactly what

defendant wore when he was stopped.

We reject the State's notion these are "[s]mall

differences" that are "immaterial." The clothing description

was the only specific detail DiMeglio offered to describe the

assailant. Yet, DiMeglio's shifting descriptions show she

either did not initially perceive or could not recall what her

attacker wore. She continued to add details as time passed and

those details, inexplicably, corresponded with other evidence

the State presented on this issue.

22 A-0173-12T3

While we agree DiMeglio described the events of the attack,

we find no support for the motion judge's finding she was able

to give a "detailed description" of her attacker. Because of

the importance of the identification testimony and the dearth of

corroborating evidence to support reliability of her

identification, the trial judge had an obligation to scrutinize

the facts. See Romero, supra, 191 N.J. at 75 ("We believe that

particular care need be taken in respect of this powerful

evidence--the eyewitness."). Instead, the judge's critical

findings are generally unsupported. We find unfounded the

judge's determination that defendant "was wearing similar

clothes and was similar in appearance [to] [DiMeglio's] original

description . . . ." The only description DiMeglio gave of the

features of her attacker that matched defendant was his race and

an approximate, yet inaccurate, height range. DiMeglio's

suggestion she had ample time to view her assailant is belied by

the fact that the only distinguishing feature she accurately

offered was the color of his skin.

Based on our review of the totality of the circumstances

presented in this record, we conclude DiMeglio's show-up

identification was unreliable. We find no basis to conclude she

had an independent recollection of his appearance. In light of

DiMeglio's inability to identify the features of her attacker

23 A-0173-12T3

except that he was "a tall black male," together with the

suggestive show-up procedures, we conclude when DiMeglio viewed

defendant, a tall black man, she concluded he assaulted her.

Accordingly, the out-of-court identification is inadmissible.

See Cherry, supra, 289 N.J. Super. at 517-18.

The denial of defendant's suppression motion is reversed.

Defendant's conviction is vacated. Retrial is subject to any

determination on the sufficiency of the State's remaining

evidence.

We briefly address the two remaining challenges raised on

appeal, in an effort to avoid possible repetition of error in

the event of a retrial. First, we reject defendant's claim of

prosecutorial misconduct and do not agree the State's summation

equated to an impermissible call to arms. See State v. Buscham,

360 N.J. Super. 346, 364-65 (App. Div. 2003) (finding

prosecutor's express plea to jury "to protect this child" was

improper). Nor can it be said to amount to a plea to the jury

to protect members of a specified group. See State v. Acker,

265 N.J. Super. 351, 356 (App. Div. 1993) (deeming inappropriate

"the prosecutor's argument that it was the function of the jury

to protect young victims of alleged sexual offenses as a group"

and the implication jurors would violate their oaths by failing

to convict the defendant), certif. denied, 134 N.J. 485 (1993).

24 A-0173-12T3

There was no trial objection. When considering the "fair

import" of the summation in its entirety, State v. Jackson, 211

N.J. 394, 409, the cited statement was not "so egregious that it

deprived . . . defendant of a fair trial," State v. Frost, 158

N.J. 76, 83 (1999).

Finally, defendant argues Officer Martina's testimony that

suspects "normally get rid of [the proceeds of a crime] so they

can't be tied to the crime" was inadmissible lay opinion.

Again, no objection followed this testimony. Despite the lack

of objection, we conclude it was error to admit that statement

and the error was "clearly capable of producing an unjust

result." R. 2:10-2.

"Lay opinion testimony . . . can only be admitted if it

falls within the narrow bounds of testimony that is based on the

perception of the witness and that will assist the jury in

performing its function." State v. McLean, 205 N.J. 438, 456

(2011). "[A] lay witness must have actual knowledge, acquired

through his or her senses, of the matter to which he or she

testifies." State v. LaBrutto, 114 N.J. 187, 197 (1989).

Further, lay opinion "is limited to testimony that will assist

the trier of fact either by helping to explain the witness's

testimony or by shedding light on the determination of a

disputed factual issue." McLean, supra, 205 N.J. at 458.

25 A-0173-12T3

Although New Jersey courts have permitted police officers

to testify as lay witnesses, LaBrutto, supra, 114 N.J. at 198,

"[t]he Rule does not permit a witness to offer a lay opinion on

a matter 'not within [the witness's] direct ken . . . and as to

which the jury is as competent as he [or she] to form a

conclusion[.]'" McLean, supra, 205 N.J. at 459 (alterations in

original) (quoting Brindley v. Firemen's Ins. Co., 35 N.J.

Super. 1, 8 (App. Div. 1953)).

Here, Officer Martina was not relating what he observed or

perceived. See N.J.R.E. 701. Rather, he offered what amounted

to an expert opinion interpreting facts for the jury bearing

directly on defendant's guilt. The statement from a lay witness

impermissibly intruded on the jury's function and is not

admissible without an appropriate expert foundation. See

McLean, supra, 205 N.J. at 463.

Reversed and remanded.

26 A-0173-12T3