State v. Gunter

• Decision Date: 22 February 1989
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Marlo GUNTER, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 34

231 N.J.Super. 34

554 A.2d 1356

STATE of New Jersey, Plaintiff-Respondent, v. Marlo GUNTER, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Jan. 10, 1989.

Decided Feb. 22, 1989.

Before Judges PRESSLER, SCALERA and STERN.

Willard E. Byer, Jr., West Orange, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney).

Marijean Raffetto Stevens, Deputy Atty. Gen., for plaintiff-respondent (Cary Edwards, Atty. Gen., attorney).

The opinion of the court was delivered by

PRESSLER, P.J.A.D.

The significant issue raised by this appeal is the admissibility under Evid.R. 56(2) of expert testimony by a psychologist explaining in general terms the factors which affect the reliability of eyewitness identification. Although this question has been considered within the last several years by a number of state and federal courts, it has not yet been addressed in this jurisdiction in a reported opinion. Having considered the record in this case, the literature and the judicial views expressed elsewhere, we have concluded that the question of the admissibility of the evidence proffered here could only have been resolved by a hearing under Evid.R. 8 to determine its scientific reliability and the extent to which, if at all, it would have assisted the jury in its understanding of relevant matters beyond the common knowledge of human experience. No such hearing was held here, and we consequently remand so that one may now be conducted.

Defendant Marlo Gunter was charged with a series of related crimes arising out of the armed holdup of a McDonald's restaurant, including robbery in the first degree, N.J.S.A. 2C:15-1; aggravated assault, N.J.S.A. 2C:12-1(b)(4); and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4. Following a trial by jury, he was convicted of all three charges. He was sentenced on the robbery conviction to a 20-year term subject to a 7- 1/2 year parole ineligibility to be served consecutively to a 56-year term imposed by a New York court. The sentences on the other two convictions, 18 months subject to an 18-month parole ineligibility period and 7 years subject to a 3- 1/2 year parole ineligibility period, respectively, are to be served concurrently with the armed robbery sentence.

According to the State's proofs, at 11:00 p.m. on the night of May 18, 1983, two masked robbers entered a McDonald's restaurant in Sussex County, New Jersey, just as its manager, David Myers, was in the process of locking up. The only other occupants of the restaurant were three other employees who were performing their regular closing-up chores. One of the intruders herded those three into the walk-in freezer. That assailant was not seen again by Myers and was never identified by any of the four. The other assailant, brandishing a small-caliber pistol, walked Myers to his desk and demanded that Myers get a bag and put money into it. Apparently, the assailant was not able to see what Myers was doing and could not see well enough to fill the bag himself. He therefore pushed the stocking-mask covering his face up to his hairline. When he saw Myers then looking at his face, he struck him across the nose with the pistol, causing rather profuse bleeding. The assailant then left his face exposed until he had gotten all the money and had brought Myers into the freezer with the others. According to Myers, during this entire time the assailant continued to point the pistol at him. The four employees remained in the freezer for about 25 minutes and then telephoned the police. Myers, the only one who could make an identification and only of the one assailant whose face he had seen, gave the police a general physical description of the assailant.

Within the next week or so, Myers, according to his testimony, was shown three separate photographic arrays on three separate occasions, the first consisting of a group of 35 to 40 photographs, the second a group of about 15 photographs, and the third a group of six photographs. All of the arrays were brought to him at the restaurant while he was working. He identified none out of the first group. Out of the second group he chose two, possibly three, which he thought looked like the assailant. Out of the last group, he made a positive identification of defendant. The officer who conducted the photo arrays, State Trooper Emma, had no knowledge, recollection or record notation of the first array and opined that some other officer may have conducted it.

With respect to the 15-photograph array, Emma testified that it included two or three four-year old pictures of defendant. The New Jersey police had been supplied with these photographs by New York police, who had arrested defendant several days after the McDonald's robbery as he and another were apparently fleeing in a borrowed car from a fast-food restaurant in Rockland County, New York, which had been held up by two masked armed men. According to Emma, those photographs of defendant were not the same as each other. Also according to Emma, he did not tell Myers that the photographs he had tentatively identified in that array were those of the police suspect. Myers also so testified. Within several days after that array, Emma obtained from the New York police a current photograph of defendant which was included in the six-photo array then prepared and which Myers positively identified. Of the six photographs, only two were set against a background of horizontal lines, and of the two only that of defendant indicated the height measurement represented by the lines.

While the six-photograph array was preserved by the police, the 15-photograph array was not. Emma explained that this accorded with standard procedure, as he understood it, in which inconclusive arrays are not kept together intact. There was no particular explanation, however, for the loss of the two old photographs of defendant which had been included in the array.

As we understand the record, Myers never saw defendant again until trial, some two-and-a-half years after the robbery. He nevertheless then made a positive in-court identification although defendant had apparently gained considerable weight, 40 to 50 pounds, in the interim.

Myers' identification testimony was virtually the only evidence against defendant. Indeed, the only other evidence was Myers' identification, as similar to those he saw on the night of the robbery, of the two stocking masks and the weapon found in the car when defendant was arrested in New York.

Defendant did not testify. He relied, for his alibi defense, on the testimony of his mother and a family friend who asserted that he had been at home in Newburgh, New York, until 11:00 p.m. on the night of the robbery, participating in a family birthday party.

Predictably, defendant's appeal from the judgment of conviction challenges the eyewitness identification. He argues that Myers' in-court identification was tainted by the suggestiveness of the out-of-court identifications and that, in any event, the indictment should have been dismissed by reason of the State's failure to have preserved all the photographic arrays intact. We reject these contentions. It is clear that all photographic arrays are required to be preserved intact. See State v. Earle, 60 N.J. 550, 292 A.2d 2 (1972). We cannot, however, conclude that that failure alone constitutes grounds for reversal here. See Earle at 552, 292 A.2d 2. No bad faith on the part of the State was shown. Moreover, we agree with the trial judge's conclusions, substantially for the reasons stated by him, that in the circumstances here the loss of the missing 15-photograph array from which a tentative identification was made was neither so material nor so prejudicial to defendant as to warrant dismissal of the indictment. See generally State v. Peterkin, 226 N.J.Super. 25, 543 A.2d 466 (App.Div.1988). ¹ And see State v. Colasurdo, 214 N.J.Super. 185, 518 A.2d 768 (App.Div.1986); State v. Casele, 198 N.J.Super. 462, 487 A.2d 765 (App.Div.1985); State v. Serret, 198 N.J.Super. 21, 486 A.2d 345 (App.Div.1984), certif. den. 101 N.J. 217, 501 A.2d 899 (1985). See also Arizona v Youngblood, 488 U.S. ----, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). We are also satisfied that there was a sufficient evidential basis for the trial judge's conclusion that the out-of-court identification was not unduly suggestive and, in any event, that the in-court identification was in no way tainted thereby. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). We do not regard the multiple photographs of defendant, whether two or three, included in the 15-photograph array as unduly suggestive since the photographs were not the same and Myers himself was not aware that he was tentatively identifying the same person in picking more than one. Compare State v. Madison, 109 N.J. 223, 536 A.2d 254 (1988), in which the defect in the photographic array was the multiple portrayal of what was clearly only one photographic subject. Moreover, the integrity of the subsequent identifications, both in and out of court, was preserved by Myers not being told that he had tentatively identified the subject. Nor can we say that the court erred in its conclusion that the height lines in the six-photograph array were not so suggestive as to have had the capacity to taint that identification or the in-court identification made so long after and when defendant's appearance was so changed.

We are, however, much concerned about defendant's final challenge to the identification, namely, the trial judge's exclusion of expert testimony respecting the factors which affect the reliability of eyewitness perceptions. Our consideration of this issue is significantly hampered by the fact that no preliminary hearing was held to determine admissibility. We do not know then, except in the most general terms of counsel's proffer, what the testimony would have been, on what...