State v. Adams

• Decision Date: 26 March 2008
• Docket Number: A-103 September Term 2006.
• Citation: 194 N.J. 186,943 A.2d 851
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ibn ADAMS, a/k/a Ali Ibn Adams (Fact), Ali-Ibn Adams (Apmis) and Ibn A. Adams, Defendant-Appellant. State of New Jersey, Plaintiff-Respondent, v. James Comer, a/k/a James B. Comer and James F. Comer, Defendant-Appellant.
• Court: New Jersey Supreme Court

943 A.2d 851

194 N.J. 186

STATE of New Jersey, Plaintiff-Respondent, v. Ibn ADAMS, a/k/a Ali Ibn Adams (Fact), Ali-Ibn Adams (Apmis) and Ibn A. Adams, Defendant-Appellant.

State of New Jersey, Plaintiff-Respondent, v. James Comer, a/k/a James B. Comer and James F. Comer, Defendant-Appellant.

A-103 September Term 2006.

Supreme Court of New Jersey.

Argued October 23, 2007.

Decided March 26, 2008.

Alison S. Perrone, Designated Counsel, argued the cause for appellant Ibn Adams (Yvonne Smith Segars, Public Defender, attorney; Ms. Perrone and Alan I. Smith, Designated Counsel, on the briefs).

Susan Brody, Assistant Deputy Public Defender, argued the cause for appellant James Comer (Yvonne Smith Segars, Public Defender, attorney).

LeeAnn Cunningham, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Cunningham and Hilary L. Brunell, Executive Assistant Prosecutor, on the briefs).

Jeanne Screen, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Anne Milgram, Attorney General, attorney).

Justice WALLACE, JR., delivered the opinion of the Court.

In these back-to-back appeals, consolidated for the purpose of this opinion, defendants Ibn Adams and James Comer were charged with various offenses arising out of multiple robberies and a homicide. A third defendant, Dexter Harrison, was charged with similar offenses but in a separate indictment. During the criminal investigation, the police engaged in less than optimal out-of-court photograph identification techniques. Following a hearing to test the admissibility of those identifications of defendants, the trial court found the procedures used were unduly suggestive, but nevertheless reliable and therefore admissible. Adams and Comer were tried together before a jury. Harrison, who reached a plea agreement with the State, was a crucial witness for the State in its case against Adams and Comer. Defendants did not request, and the trial court did not give, a specific jury charge that Harrison's guilty plea could only be considered to assess his credibility and that the jury should carefully scrutinize his testimony in light of his special interest in the case. Adams and Comer were convicted of felony-murder, multiple robberies, and weapons offenses. Although both defendants received lengthy consecutive sentences, no sentence for any charge was beyond the then-presumptive sentence for each offense. The Appellate Division affirmed the convictions and sentences. Defendants petitioned this Court for certification, and we granted the separate petitions. State v. Adams, 189 N.J. 650, 917 A.2d 789 (2007); State v. Comer, 191 N.J. 315, 923 A.2d 230 (2007).

We now affirm. We conclude that, similar to the view we expressed in State v. Herrera, 187 N.J. 493, 902 A.2d 177 (2006), these cases do not present a proper record to consider modifying our standards for evaluating the admissibility of out-of-court identifications. Further, on the record presented, we agree with the Appellate Division that there was sufficient credible evidence to affirm the trial court's decision to admit the identification testimony and that it was not plain error for the trial court to fail to give a cautionary charge on the use of Harrison's testimony and guilty plea. Lastly, we hold that defendants' presumptive sentences, imposed prior to our decision in State v. Natale, 184 N.J. 458, 878 A.2d 724 (2005), do not require remands.

I.

A.

Briefly, on April 17, 2000, Adams, Comer, and Harrison stole a car and committed several armed robberies, one of which resulted in the shooting death of George Paul. After the stolen car, a white Honda Civic, ran out of gas, they pushed it to Tullo's Truck Stop where they eventually were apprehended. A search of the three suspects and the stolen vehicle revealed incriminating evidence of the robberies. The police drove the three suspects to headquarters where Harrison agreed to give a statement. He admitted they had committed two robberies in East Orange and that he had left his car parked on the street. The police obtained a search warrant and searched Harrison's Nissan, from which they recovered a snatch bar, a book bag, a pair of boots, and a jacket. Based on Harrison's statement, Detective John Plaugir drove Harrison back to Tullo's Truck Stop and retrieved a loaded .25 caliber handgun from the bathroom. During the ensuing investigation, various victims met with the police and identified photographs of the perpetrators and various items of personal property that had been taken from them.

Defendants Adams and Comer were indicted for (1) second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count one); (2) first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); (3) four counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts four, seven, ten, and thirteen); (4) six counts of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts five, eight, eleven, fourteen, seventeen, and eighteen); (5) four counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six, nine, twelve and fifteen); and (6) third-degree theft, N.J.S.A. 2C:20-3(a) (count sixteen). In addition, Adams was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count two).

Co-defendant Harrison was indicted separately. He entered into a plea agreement with the State in which he pled guilty to various charges in exchange for a recommended concurrent sentence of twenty years with an eighty-five-percent parole bar. The sentence could be lowered depending on the quality and quantity of Harrison's testimony against the other defendants.

B.

Prior to trial, Adams and Comer moved to suppress the out-of-court identifications by Dinis Sachdeva, Deru Abernathy, Allyson Attabola, and Tassandra Wright. At the suppression hearing, Detective David Montgomery of the Kearny Police Department and Detective Tom Wright of the East Orange Police Department testified on behalf of the State.

Detective Montgomery testified that around 5:20 a.m. on April 18, 2000, Dinis Sachdeva, the gas station attendant, arrived at the police station and gave a statement. When Detective Montgomery showed Sachdeva single Polaroid photographs of the three defendants, Sachdeva immediately identified the photographs of Comer and Harrison, but could not identify Adams. Detective Montgomery testified that he showed Sachdeva individual photographs of the three men because "[Sachdeva] had just identified them at the scene and we wanted to take a statement from him as to his observations."

Later that same morning, Detective Montgomery interviewed Tassandra Wright.¹ She indicated that her paycheck was stolen from her at gun point. Detective Montgomery showed Tassandra the same single photographs of the suspects he had shown to Sachdeva. Tassandra identified Adams as the man who entered the passenger side of her car and stole her paycheck, Comer as the man who approached the driver's side window and pointed a handgun at her, and Harrison as the driver of the Honda Civic.

Detective Wright testified that on April 20, 2000, two days after the robbery, he interviewed Deru Abernathy at the East Orange Police Department. Detective Wright said that he displayed fifteen to twenty pictures to Abernathy, one at a time, and told him that "the people in the pictures may be responsible for the robbery that took place against him." Abernathy identified Adams and Comer as the passengers in the car and Harrison as the driver.

Detective Wright explained that he knew he did not have an appropriate array, but he was unable to locate suitable photos despite contacting four other police departments. He claimed that he was under time constraints to obtain identification from the East Orange victims so that charges could be filed. Detective Wright admitted that he would not have used the assortment of non-suspect photos he showed to Abernathy in a proper array because the men depicted were not similar enough to the suspects. Except for the three photos of defendants that Abernathy selected, Detective Wright testified that he discarded the other photos.

Detective Wright also met with Allyson Attabola on April 20, 2000. He showed her three single photos of the three suspects. Attabola identified Adams as the rear passenger, Comer as the front seat passenger, and Harrison as the third person present at the crime scene. Detective Wright acknowledged that the procedure he used deviated from the standard procedures for identifications and that if he had it to do over, he would do it differently.

The trial court denied defendants' motions to suppress the identifications. The court found that the procedures were definitely suggestive but "the identification process was not so suggestive as to taint the out-of-court identification to such a degree that the defendants were denied their due process of law." In support of that conclusion, the court found that: all of the witnesses had a good opportunity to view defendants; they were certain about their identifications; there were no inconsistencies with their prior descriptions of defendants; their attention was focused on defendants during the crimes; and the durations of time between the incidents and the identifications were all relatively short.

C.

At trial, the State presented evidence to show that around 11:30 p.m. on April 17, 2000, Abernathy was in his car talking to a friend on a cell phone when he noticed a blue Nissan pass by, stop, and then reverse until the vehicles were beside each other. Abernathy peered into the car and noticed the occupants pointing guns at him. Two of the men, whom Abernathy later identified as Adams and Comer, got out of the Nissan, approached Abernathy, forced him from his car, and yelled "stickup." The assailants took Abernathy's Samsung cellular phone, gold chains, Movado watch, leather jacket, and boots....