State v. Edge

• Decision Date: 22 February 1971
• Citation: 274 A.2d 42,57 N.J. 580
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Lynwood EDGE and Walter Robbins, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 580

57 N.J. 580

274 A.2d 42

STATE of New Jersey, Plaintiff-Appellant, v. Lynwood EDGE and Walter Robbins, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Dec. 21, 1970.

Decided Feb. 22, 1971.

Wilbur H. Mathesius, First Asst. Prosecutor, for appellant (Bruce M. Schragger, Mercer County Prosecutor, attorney).

Daniel R. Coburn, Asst. Deputy Public Defender, for respondent Lynwood Edge (Stanley C. Van Ness, Public Defender, attorney).

John Urato, Designated Attorney, for respondent Walter Robbins (Stanley C. Van Ness, Public Defender, attorney).

The opinion of the Court was delivered by

JACOBS, J.

The defendants were convicted of rape and appealed to the Appellate Division. That court, by a vote of two to one, reversed their convictions. State v. Edge, 111 N.J.Super. 182, 268 A.2d 35 (1970). The State appeals to this Court as of right. R. 2:2--1(a)(2).

On December 5, 1967 at about 6:30 P.M. the victim, then thirteen years of age, was walking in Hamilton Township towards her girlfriend's home. A car with three men came alongside, two of the men came out, and they forced her into the car. They drove to a wooded area where she was raped by the three men. She had ample time and opportunity to observe the men when she was originally seized, while she was in the car, and when she was later released. At her release she was resourceful enough and sufficiently controlled to obtain the license number of the car which turned out to be a Cadillac stolen from Mr. Glenn Hobbs, the operator of the Blue Light Restaurant in Trenton. She went to the nearest house, the Hamilton Township police were called and, after they questioned her, she was taken to a doctor's office and later to a hospital.

The Hobbs car was reported stolen during the evening of December 5 and when the police arrived they advised that it had been used in connection with a rape. Later that evening there was talk in the restaurant about the theft of the car and a $200 reward for its return. Two young men in the restaurant advised Mr. Hobbs that they would find his car. They left the restaurant and in very short order returned, told him where the car was located, and one of them, the defendant Lynwood Edge, left his name and address for payment of the reward. Mr. Hobbs then called the police who proceeded to pick up the car in furtherance of their investigation of the rape.

On December 6, which was the day following the evening of the rape, the victim was shown a picture of Robert Edge, an uncle of the defendant Lynwood Edge. She said that he was not one of the attackers although it looked a little like him. At about 9:45 P.M. on December 6 the Trenton police called Detective Mohr of the Hamilton Township Police Department and told him that they had the defendant Lynwood Edge at their headquarters. The victim and her father arrived at the Trenton headquarters where they met the detective. According to his testimony, he told the victim before she made her identification in his presence that 'just because a person she was going to see was in a police station, this did not mean he had anything to do with her rape' and to be 'very sure before she said anything. * * *' And according to the victim's testimony, her father told her about the seriousness of the matter and that before she identified anyone 'to be sure and not to make any mistakes.' The victim observed the defendant Edge via a one-way mirror, observed him face to face, heard him talk, and made a positive identification of him as one of the three men who had raped her. She testified that at the time she made the out-of-court identification she was absolutely sure and at the trial she made an equally firm in-court identification of him.

On December 6 the victim was shown several photographs and identified a photograph of the defendant Robbins, a friend of the defendant Edge, as one of her attackers. At about 2:25 P.M. on December 7 she, along with her father, went to the Trenton Police Headquarters where she observed Robbins via a one-way mirror and then observed him face to face from a distance of four or five feet. She thereupon on made a positive identification of him as one of the men who had raped her and during the trial she made an unequivocal in-court identification of him. The defendant Robbins testified that when the victim confronted and identified him at police headquarters he said, 'Girl, please make sure' and that the police thereupon took her from the room. The defendant Edge testified that at the headquarters confrontation between the victim and himself he heard her say 'I am not sure. I don't think so' in response to the officer's inquiry as to whether he was one of the men who raped her. This of course was in conflict with the testimony of both the victim and Detective Mohr.

The defendant Edge acknowledged in the course of his testimony that he, along with a friend, William Wiggins, was in the Blue Light Restaurant during the evening of December 5 and that he left his name with Mr. Hobbs. His version was that he knew nothing about the car but that Wiggins knew where it was and that he merely accompanied Wiggins out of the restaurant and stayed out long enough so that Mr. Hobbs would not feel that they had stolen it. He testified that while they were out they went to see if the car was 'still there.' On the witness stand both the defendant Edge and the defendant Robbins testified that they were elsewhere at the time of the attacks established by the State's testimony and denied that they had anything whatever to do with the victim's abduction or the attacks on her. But on that score the jury found against them and, since there was ample testimony to support the jury's finding, the ensuing judgments of conviction must stand unless the record shows reversible trial error. See R.R. 1:5--3(a); R. 2:10--1; State v. Mustacchio, 57 N.J. 265, 281, 271 A.2d 582 (1970).

The majority members of the Appellate Division reversed the convictions below because they entertained the view that the pretrial identification procedure violated the principles expressed in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In Wade a defendant who had been indicted and who had counsel was placed in a pretrial lineup for identification purposes without any notice to his counsel. At the trial his counsel moved to strike the in-court identification because of the nature of the pretrial identification. The Supreme Court held that the pretrial lineup in the absence of defense counsel was illegal, that the later admission of the in-court identification was erroneous unless it had a sufficient untainted independent origin, and that if the in-court identification had no such origin its admission was cause for reversal unless shown to have been harmless. See State v. Mustacchio, Supra, 57 N.J. at 269, 271 A.2d 582. In Stovall the Supreme Court recognized that a pretrial identification may be 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to amount to a denial of due process though it found, from the totality of circumstances before it, that no such unconstitutional pretrial identification had taken place. See State v. Mustacchio, Supra, 57 N.J. at 271, 271 A.2d 582.

Both Wade and Stovall were decided over nine months before the trial in the case at hand began, and their principles were familiar to defense counsel who evidently concluded that the interests of the defendants would best be served by complete exploration of the pretrial identification procedure. They voiced no objections at all when the victim fully described her pretrial identifications or when she made her firm in-court identifications. And when the defendants were on the witness stand they gave their full versions as to what happened at the pretrial identifications. In his answering brief before us, the appellate attorney for Robbins disputes the State's suggestion that the absence of objection at trial should be deemed on appeal to represent trial counsel's 'considered judgment' and he asserts that the State's suggestion is 'contradicted by the record' though we find no such contradiction whatever. Along with its reply brief the State submits affidavits by both of the defense counsel at the trial who assert that they were familiar with Wade and its companion cases, that they discussed them before the victim gave any identification testimony, and that it was their considered opinion that objection should be withheld since they wanted the circumstances surrounding the identifications to be presented to the jury. A motion has been made before us to strike the affidavits because they were never 'passed upon by the courts below' but it is denied since the affidavits may appropriately be considered in connection with the very limited appellate argumentation purpose for which they have been tendered.

In viewing defense counsels' handling of the matter at the trial, various factors must be borne in mind. The situation differed sharply from Wade since here the pretrial identifications occurred within a day or two after the event while the investigation was still intensely under way and well in advance of any indictment or retention or assignment of counsel. The Supreme Court did not pass on any such preindictment situation in Wade nor has it to date. See State v. Mustacchio, Supra, 57 N.J. at 269--270, 271 A.2d 582. Nor did the Supreme Court in Stovall, or in any other case to date, hold that a one-to-one pretrial confrontation and identification is without more violative of the fourteenth amendment. On the contrary, it held that the totality of the circumstances must be considered to determine whether the manner of the confrontation was so unnecessarily suggestive and unfair as to amount to a denial of due process. See State v. Mustacchio, Supra, 57 N.J. at 271--272, 276, 271 A.2d 582.

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