State v. Earle

• Decision Date: 19 June 1972
• Citation: 292 A.2d 2,60 N.J. 550
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Emanuel EARLE, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 550

60 N.J. 550

292 A.2d 2

STATE of New Jersey, Plaintiff-Appellant, v. Emanuel EARLE, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 9, 1971.

Decided June 19, 1972.

David S. Baime, Asst. Prosecutor, for appellant (John De Cicco, on the brief; Joseph P. Lordi, Essex County Prosecutor, attorney).

Sonia Napolitano, Newark, for respondent (Teltser & Greenberg, East Orange, attorneys).

PER CURIAM.

Defendant was convicted of atrocious assault and battery. The Appellate Division reversed, 112 N.J.Super. 523, 271 A.2d 911 (1970), and we granted the State's petition for certification. 57 N.J. 602, 274 A.2d 55 (1971). We delayed decision in this case for the reason that the decisive issue was before the United States Supreme Court.

Defendant, in custody on another charge, was identified by the victim of the crime here involved. The Appellate Division held that United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), required that counsel be furnished defendant in connection with the confrontation, and none having been furnished here, the conviction had to be reversed.

Wade and Gilbert involved post-indictment lineups. They held the Sixth Amendment right to counsel obtained in those circumstances. There followed considerable controversy as to whether the Wade-Gilbert exclusionary rule applied only to a post-indictment identification. See State v. Mustacchio, 57 N.J. 265, 271 A.2d 582 (1970). The case to which we referred in the opening paragraph above is Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). There the majority of the Supreme Court held the Wade-Gilbert rule did not apply to an identification which took place before the commencement of the prosecution of the defendant. Thus the Appellate Division erred in its reading of Wade-Gilbert or in its forecast of what those cases portended.

We add that although counsel need not be present in these circumstances, enforcement authorities should nonetheless 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. The identity of persons participating in a lineup should be recorded, and a picture should be taken if it can be. If the identification is made or attempted on the basis of photographs, a record should be made of the photographs exhibited. We do not say a failure hereafter to follow such procedures will itself invalidate an identification, but such an omission, if not explained, should be weighed in deciding upon the probative value of the identification, out-of-court and in-court.

The remaining question is whether the confrontation between defendant and the victim was 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to deny due process under Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, 1206 (1967), or as later phrased in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.ed.2d 1247, 1253 (1968), a case involving photographic identification, whether the procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' The victim in the present case was a railroad patrolman named Lancellotti. He surprised four men engaged in stealing from a refrigerated freight car in a railroad yard at one o'clock in the morning. Lancellotti said he had a good, illuminated view of the defendant. Lancellotti was shown about 200 'mug' shots. Every trespasser on railroad property was checked against the description Lancellotti gave. Lancellotti confronted at least 15 men arrested in the area, and viewed over 100 vagrants who frequented it. He identified none of the...