State v. Custis
| Decision Date | 21 December 2018 |
| Docket Number | DOCKET NO. A-5132-15T2 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAWN CUSTIS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Sabatino, Sumners and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-01-0204.
Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Y. Lerer, of counsel and on the briefs).
Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney; Frank J. Ducoat, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
After a lengthy jury trial, defendant was found guilty of first-degree robbery, second-degree aggravated assault, and other offenses. The offenses were committed in the course of a home invasion, in which the perpetrator broke into the victim's residence during the day when she was at home with her preschool-aged daughter and infant son. The invasion and the brutal physical attack upon the victim were recorded on "nanny-cam" equipment at the residence. A portion of that video was broadcast on local television stations, prompting women who personally knew defendant to come forward and identify him as the attacker shown on the video.
Defendant was thereafter arrested when leaving his girlfriend's New York City apartment building. A search of those premises uncovered evidence tying him to the home invasion and robbery. This prosecution ensued, resulting in the jury's guilty verdict. The trial court imposed on defendant an extended-term sentence of life imprisonment, with additional consecutive and concurrent terms.
On direct appeal, defendant raises numerous issues. Among other things, he argues: (1) the trial court should have suppressed the items seized from hisgirlfriend's apartment without valid consent to perform a search of the premises; (2) the identifications of the four women based on the nanny-cam video footage were unreliable and inadmissible; (3) the jury received inadequate instructions on identification; (4) the victim's ultimate identification of him was tainted and improperly admitted; (5) two prosecution witnesses gratuitously and prejudicially referred to their fear of defendant; (6) the court unfairly allowed a government agent to provide opinion testimony about a footwear match; and (7) defendant's life sentence is manifestly excessive.
For the reasons that follow, we affirm defendant's convictions and sentence, except to direct the trial court to amend the judgment to merge the aggravated assault conviction into the robbery conviction.
I. (Factual and Procedural Background) .......................................................... 3
II. (Apartment Search Issues) ........................................................................ 25
III. (Lay Witness Identification Issues) ......................................................... 42
IV. (Victim Identification Issues) .................................................................. 62
V. (Fear Testimony Issues) ........................................................................... 66
VI. (Footwear Expert Issue) .......................................................................... 71
VII. (Other Issues) ........................................................................................ 75
I.
(Factual and Procedural Background)
On the morning of June 21, 2013, at about 10:25 a.m., C.R.2 was in the kitchen of her home in Millburn Township. She was making breakfast for her three-year-old daughter, E.R., who was on the couch in the living room, watching cartoons. C.R.'s one-year-old son was napping upstairs in his crib.
Around this time, E.R. turned off the television and ran towards her mother, saying that someone was at the front door. C.R. went to look out the front window, but she saw no one there.
C.R. then heard a loud noise from the back entrance of the house. As she turned around, she saw a man charging after her. The assailant appeared to be hunched over and swaying back and forth, like a boxer. C.R. noticed that he was African-American, about 5'8" tall, about her age (in his forties), had salt-and-pepper facial hair, and was wearing a white, short-sleeve, crew-neck t-shirt and denim jeans.
The assailant proceeded to attack C.R. in front of her daughter. As C.R. was pummeled to the floor, she remained quiet, because she did not want her daughter to scream and have the assailant get mad and start punching her as well. Her plan was to keep quiet and take the beating, in order to keep the attention on her and protect her children.
The assailant threw C.R. down, held her down with his legs, beat and choked her, kicked her in the face, and demanded to know where she kept her pocketbook. He taunted her while she was on the floor, exclaiming, "Where are you going, where do you think you're going?" The beating was so vicious C.R. thought she would die.
C.R. lapsed in and out of consciousness, and although her mind was telling her to get up, she felt limp and could not move. While the assailant was upstairs, she attempted to get to the phone, but was unable to do so. When the assailant returned downstairs, he dragged her to the basement door and threw her down the stairs.
The home invasion and assault were over within four minutes. During that time, the assailant took the jewelry C.R. was wearing, including her wedding rings and a necklace with her children's names on it. He also took a baby monitor, C.R.'s cell phone, and a watch belonging to C.R.'s husband.
C.R. lost consciousness after being thrown down the basement stairs, and she did not know how long she was out. At some point, however, she regained consciousness, crawled over to the home computer, and sent an unintelligible email to her husband. She also called 9-1-1 to report the crime.
Thereafter, C.R. crawled upstairs to find her children. She found E.R. in the living room, scared, and her son upstairs, sleeping.
Millburn police responded to C.R.'s home. Upon arrival, they observed C.R. holding her infant son, and her daughter appeared frightened. C.R. looked like she had "taken a terrible beating." The right side of her face was red and swollen, her right eye was almost swollen shut, and her mouth was bleeding. She was crying and disoriented, unable to respond to the officers' questions, and unable to give a written statement.
C.R. testified at trial that she suffered a concussion from the beating, as well as permanent injuries to the right side of her face. She also suffered a sprained knee, and a sacral fracture that still caused her pain when she was in a seated position.
The police took a statement from C.R. later in the day on June 21, at the hospital. The officers testified that she still seemed disoriented at that time.Audio of her police statement was played for the jury. In that statement, C.R. told the police that her assailant was about 5'7" or 5'8", African-American, and wearing a white t-shirt and jeans. He was bald; she did not think he had any facial hair; and she believed he was in his late thirties or early forties.3
When C.R. later went to the police station to view a photo array, she did not identify defendant as her assailant. She hesitated between the photo of defendant and the photo of another man. She ultimately said the other man "possibly" was her assailant, but she was not entirely sure. Later at trial, however, C.R. expressed her belief that she never intended to exclude defendant as a possibility. She explained that she could not identify defendant based upon the photo shown to her at that time, because in the photo he appeared much younger than he appeared at the time of the attack. At trial, C.R. testified that defendant was her attacker. She stated she was "100 percent sure" and had "no doubt" about it.
C.R. recounted that she and her family had left town after the home invasion, and they returned only after she saw video of defendant's arrest and she was sure the police had arrested the right person.
After responding to the victim's 9-1-1 call, police officers processed the crime scene. They found the back door of the home had been forced open. They took fingerprints, but they did not identify any belonging to defendant.4
The police also attempted to track C.R.'s cell phone, which had been stolen. However, the phone was turned off shortly after the home invasion. Therefore, the police were unable to track it beyond a nearby bus stop.
While canvassing the area around the victim's home, the police recovered a baby monitor from a storm drain. The police could not extract any fingerprints from the monitor. However, C.R. identified it as belonging to her.
Also, while canvassing the area, the police obtained videos from a business located near C.R.'s home, which were taken on the date of the crime, around the time of the crime. At trial, the prosecutor showed those videos to the jury. They depicted a man who could be defendant walking in close proximityto the crime scene, and near where C.R.'s phone was tracked immediately after the crime.5
After C.R.'s husband arrived, the police learned that the residence was equipped with a nanny-cam system, which captured the four-minute home invasion incident on video. This video was played for the...
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