State v. Lazo

Judge WEFING (temporarily assigned),

dissenting.

I write separately because I am unable to join the views and analysis of my colleagues. Based on a brief phrase in this Court’s opinion in State v. Branch, 182 N.J. 338 , 865 A.2d 673 (2005), and two cases from the Ninth Circuit Court of Appeals, my colleagues conclude that the testimony offered by Detective Valido fatally tainted defendant’s trial. I consider the Court’s conclusion in this matter a significant expansion of the principle we laid down in Branch . Further, I consider this matter wholly distinguishable from the situations presented in the two federal cases. Finally, I am troubled by my colleagues’ reference to State v. Henderson, 208 N.J. 208 , 27 A.3d 872 (2011), which we carefully noted was to be given wholly prospective effect. Id. at 302 , 27 A.3d 872 . I am concerned that the Court’s reference to Henderson may be misinterpreted as foreshadowing a retreat from that position.

In Branch, supra, Kathleen O’Nieal was talking with a family friend, Joseph Gannon, when she heard screams from the upper floor where her two children were sleeping. 182 N.J. at 343 , 865 A.2d 673 . Almost immediately an intruder came down the stairs, ran past the two adults, and tried to get out the back door. Ibid. The door handle jammed, but after a brief delay, the intruder opened the rear door and fled. Ibid. The police arrived promptly. Ibid. The police were unable to develop any physical evidence at the scene, but they did take descriptions from O’Nieal, Gannon and the two children. Id. at 344 , 865 A.2d 673 . The descriptions were not entirely consistent with respect to the intruder’s height and apparent age. See ibid. Both O’Nieal and Gannon said the intruder had little or light facial hair. Ibid. A police sketch artist worked with Gannon to prepare a sketch. Id. at 345 , 865 A.2d 673 . The detective assigned to the case prepared a photo array. ibid. O’Nieal and Gannon were unable to identify any of the individuals. Ibid. A second array was prepared about one week later, and the two adults independently selected the defendant’s picture. Ibid. They also identified the defendant at trial. Ibid. In *31 both his picture and at trial the defendant had a moustache and beard. Ibid.

At trial, the detective was questioned about the preparation of those photo arrays. Id. at 347 , 865 A.2d 673 . He was asked if, “based upon information received,” he had developed a suspect in the case. Ibid, (emphasis omitted). He responded affirmatively and identified the defendant as the suspect. Ibid. He continued that he obtained a photo array that contained the defendant’s picture. Ibid. The detective explained that both adults independently selected that picture from the array. Ibid. The sketch produced by the police artist bore little resemblance to the defendant or to the picture included in the array. Id. at 345 , 865 A.2d 673 . The defendant was convicted at trial of second-degree burglary and second-degree robbery. Id. at 346 , 865 A.2d 673 .

In Branch , we reversed the defendant’s conviction, finding that the testimony that the detective had, “based upon information received,” developed the defendant as a suspect had impermissibly conveyed to the jury that the detective “had superior knowledge [obtained] through hearsay information implicating [the] defendant in the crime.” Id. at 347-48 , 865 A.2d 673 (emphasis omitted). We stressed that under Sixth Amendment principles, a police officer may not convey to the jury that he has superior knowledge outside the record that incriminates the defendant. Id. at 352-53 , 865 A.2d 673 .

Nothing within Detective Valido’s testimony in this case conveyed that thought, however. Here, the detective simply testified that he came into possession of a photograph of defendant and was struck by its similarity to the sketch produced by the police artist. The Court finds no error in the testimony about how the detective came to see the photograph. It notes that “Detective Valido did not explain how the photo came into his possession, refer to it as an arrest photo, or mention defendant’s prior arrest.” Op. at 20, 34 A.3d at 1239 (citing State v. Cribb, 281 N.J.Super. 156, 161-62 , 656 A.2d 1279 (App.Div.1995)). The Court describes the photograph as “neutral ... with no identifying markings, notations, or *32 numbers.” Op. at 20, 34 A.3d at 1239. Nothing within that testimony or the photograph implied that the detective was relying on undisclosed information. He fully described the information he had to the jury, which was able to draw its own conclusions with respect to the strength of the comparison between the two. The similarity is, in the words of the prosecutor in her summation, “remarkable.”

Branch relied on the violation of the defendant’s Sixth Amendment confrontation rights to reverse his convictions, but I can find nothing in Detective Valido’s testimony that is at all comparable to such a violation. Branch , in my judgment, does not warrant a reversal of this conviction.

Nor do I find any authority in the Ninth Circuit cases cited by my colleagues; I consider both to involve significantly different factual complexes. In United States v. Beck, 418 F.3d 1008 (9th Cir.2005), the defendant was charged with bank robbery. Id. at 1011 . Testimony at trial included that of the teller, two other individuals who were in the bank at the time of the robbery, and the defendant’s probation officer. Id. at 1011-12 . Based on the descriptions of those present at the time and the surveillance tape that recorded the incident, a photo array was prepared. Id. at 1011 . Two of the witnesses selected the defendant’s picture while the third selected another photo. Ibid. Defendant’s probation officer (his role as a probation officer was not disclosed to the jury) was permitted to testify that he had reviewed the surveillance tape and based on his familiarity with the defendant, he identified the defendant as the robber. Id. at 1011-12 . The court’s discussion of lay opinion testimony occurred in the context of the court finding no error in the identification testimony of the probation officer, based on his familiarity with the defendant. Id. at 1013-15 .

The Court also cites to United States v. LaPierre, 998 F.2d 1460 (9th Cir.1993), which it describes as “more closely” resembling the present case to support its reversal of defendant’s conviction. Op. at 22-23, 34 A.3d at 1241. I am unable to agree that LaPierre *33 “closely” resembles this case for it contains several distinguishing features of significance. The first of these is that the LaPierre court reversed the defendant’s conviction, not because of identification testimony, but because the defendant’s attorney had not been present at the line-up, a violation of the defendant’s Sixth Amendment right to counsel. LaPierre, supra, 998 F. 2d at 1463-64 .

According to the facts of the case, the defendant was charged with bank robbery, like the defendant in Beck. Id. at 1462 ; Beck, supra, 418 F. 3d at 1010 . Again, there was a surveillance tape of the incident. LaPierre, supra, 998 F. 2d at 1465 . An officer investigating the robbery was permitted to testify before the jury that the individual seen in that surveillance tape was the defendant. Ibid. The court referred to that testimony as having “dubious value” but declined to hold that it constituted reversible error, leaving that determination to abide the defendant’s retrial. Ibid.

LaPierre does not, in my judgment, warrant reversing this defendant’s conviction. Detective Valido’s testimony explaining his preparation of the photo array is not comparable to that of the witnesses in Beck and LaPierre who interpreted a grainy surveillance video to the jury as containing a picture of the defendants.

Here, Detective Valido’s testimony did not identify this defendant as the culprit, as did the testimony in Beck and LaPierre . It did not unfairly suggest superior knowledge nor intrude on the jury’s function. In sum, I find no reason to conclude that defendant is entitled to a new trial, and I would affirm.

For reversal/vacation/remandment—Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, HOENS, and PATTERSON—6.

For affirmance—Judge WEFING (temporarily assigned)—1.