State v. Lazo

• Decision Date: 01 February 2012
• Citation: 34 A.3d 1233,209 N.J. 9
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. Danny LAZO, Defendant–Appellant.
• Court: New Jersey Supreme Court

209 N.J. 9

34 A.3d 1233

STATE of New Jersey, Plaintiff–Respondent,

v.Danny LAZO, Defendant–Appellant.

Supreme Court of New Jersey.

Argued Sept. 13, 2011.Decided Feb. 1, 2012.

Ruth Bove Carlucci, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Carlucci and Ernest Anemone on the briefs).

Maria I. Guerrero, Special Deputy Attorney General/Assistant Essex County Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney).

Lawrence S. Lustberg argued the cause on behalf of amicus curiae Association of Criminal Defense Lawyers of New Jersey (Gibbons P.C., attorneys; Mr. Lustberg and Eileen M. Connor, Newark, on the brief).Deborah C. Bartolomey, Deputy Attorney General, argued the cause on behalf of amicus curiae Attorney General of New Jersey (Paula T. Dow, Attorney General, attorney).Chief Justice RABNER delivered the opinion of the Court.

In this case, we consider whether it was proper for a police officer to testify at trial about how and why he assembled a photo array. Although the officer had no personal knowledge of the crime committed, he told the jury that he believed defendant closely resembled a composite sketch of the assailant and therefore included a photo of defendant in the array. The officer showed the array to the robbery victim, whose eyewitness identification was the only evidence linking defendant to the offense.

The officer's testimony should not have been admitted in light of the principles outlined in State v. Branch, 182 N.J. 338, 865 A.2d 673 (2005). As Branch explained, an officer's reasons for placing a particular photo in an array are irrelevant and prejudicial. Id. at 352, 865 A.2d 673. Here, the testimony improperly bolstered the victim's account and invaded the role of the jury to weigh the victim's credibility. For those and other reasons, including certain concerns about eyewitness identification testimony considered in State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011), we do not find that the error was harmless. We therefore reverse the judgment of the Appellate Division, which affirmed defendant's conviction, and remand for a new trial.

I.

The jury heard the following evidence at trial. Early in the morning on August 5, 2005, Angel Chalco left his home in Newark and headed toward the Bloomfield Avenue subway station to catch a train to work. He arrived at around 6:05 a.m. and noticed three men walking behind him as he entered the station. Seconds later, as he walked down the stairs, the men grabbed Chalco by the neck from behind, pulled him backward, and demanded money. One of the three men walked in front of Chalco and pointed a knife at his stomach. Chalco later identified that individual as the defendant. The men took the victim's wallet—with $200 and an identification card in it—and his cell phone. They then hit him on the head and kicked his stomach, causing him to lose consciousness and fall down.

After Chalco regained consciousness, he returned home and called the police. Soon after, he met with New Jersey Transit Police Detective Miguel Valido and described one of his assailants as a Hispanic male with a light complexion, eighteen to twenty-five years old, about five feet nine inches tall, and 150 pounds. Chalco added that the suspect was wearing a white t-shirt, blue jeans, and a baseball cap turned backward. That description was broadcast to patrol units. Chalco could not describe the other men who held him from behind.

The police transported Chalco to their headquarters, where he viewed about thirty photographs—on a computer—of people who fit the suspect's description. Detective Valido testified that the photos came from the New York/New Jersey High Intensity Drug Trafficking Agency (HIDTA) network. At the time, Chalco did not identify anyone as his assailant.

While Chalco examined the photographs, Detective Valido learned that the police had detained a suspect in the area of the Broad Street station who matched Chalco's description. The detective took Chalco to the nearby scene and asked if he could identify the individual. From a distance of thirty feet or more, Chalco initially believed the person may have been one of his assailants. After getting a closer look at the suspect at the stationhouse, Chalco declared that the individual was not involved in the robbery.

Shortly afterward, and still within about ninety minutes of the robbery, a police sketch artist worked with Chalco and prepared a sketch of the assailant based on Chalco's description. Detective Valido was also present and helped translate for Chalco, who spoke Spanish. Chalco viewed samples of different facial features and selected the ones he believed were the closest matches to the attacker's features.

According to the detective, Chalco was “very certain” that the final version looked like the assailant. The police then disseminated the composite drawing to all patrol units. Detective Valido testified that he did not give a copy to Chalco.

Days later, the detective came across an arrest photo of Danny Lazo taken after he had jumped a turnstile on August 8, 2005. The detective thought Lazo's photo closely resembled the composite sketch. For that reason, Detective Valido included a photo of Lazo in an array of six photos he compiled. To comply with guidelines from the Attorney General, the detective used a two-year-old photo of Lazo from the HIDTA network instead of the more recent arrest photo. Chalco never saw the arrest photo.

Detective Valido showed Chalco the photo array on August 10, 2005, and Chalco identified the picture of Lazo as his assailant. According to Chalco, when he looked at the array and made the identification, he also had a copy of the composite sketch in hand.

Detective Valido obtained an arrest warrant for defendant Lazo and arrested him the following day. A grand jury in Essex County later indicted defendant on two counts: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5–2 and 2C:15–1; and first-degree robbery, N.J.S.A. 2C:15–1.

Defendant's trial began on November 28, 2006. Defense counsel did not request a Wade hearing before trial to challenge the identification procedure. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

The State called Detective Valido and the victim, who recounted the above facts. During the detective's testimony, the State introduced in evidence the composite sketch, defendant's arrest photo, and the photo array. The detective also explained how he prepared the array. He noted that once he received the arrest photo, he noticed how closely it resembled the sketch, and he included Lazo's picture in the photo array because of his similarities to the victim's description. Defendant vigorously objected to both the introduction of the arrest photo and the testimony.

In addition to recounting the events of the robbery and his identification of defendant from the photo array, the victim identified defendant at trial. The victim's identification was the only evidence linking defendant to the crime. No physical evidence or other corroboration of the identification was presented.

Defense counsel offered an alibi defense. Defendant's mother, two brothers, and a friend, Angel Febus, testified that defendant was asleep at home at the time of the robbery. They testified that all four slept in the apartment that night and remembered the evening of August 4, 2005 and early the next morning—when the robbery occurred—for a number of reasons. In particular, the witnesses explained that defendant did not have to attend summer school that morning, that defendant's mother permitted Febus to sleep over, a rare occurrence, and that she checked herself in a mirror in the boys' room and kissed them between 5:30 and 6:30 a.m.

The prosecution challenged and undermined defendant's alibi on cross-examination. Witnesses testified inconsistently as to whether anyone was ever permitted to sleep over at defendant's home and whether Febus had slept over before August 5, 2005.

In summation, the prosecutor argued “how convenient the defense witnesses ['] testimony was” and repeatedly labeled certain facts as “convenient.” A brief excerpt follows:

How convenient is it that Ms. Rosado, Danny Lazo's mom, didn't have to go to work that day? That particular day, and every Friday, she didn't have to work. That's convenient. How convenient is it that summer school ended? And Mr. Lazo didn't have to go to summer school those last two days. How convenient is that? How about mom kisses her three sons, who by the way, ages 20, 19, and 16, who conveniently sleep in bunk beds together in the same room. She kisses them goodbye every morning. How convenient is that? She got up at 5:30, conveniently needed to use the mirror, as she does every morning, in a room where Danny Lazo was asleep....

....

Well, ladies and gentlemen, you've heard a lot of testimony. No one ever slept over at this house. That was the rule .... But on August 5th, 2005, Mr. Febus slept over. Again, convenient.

The jury acquitted defendant of first-degree robbery but found him guilty of second-degree robbery, a lesser-included offense, and second-degree conspiracy to commit robbery. The trial court merged the conspiracy count into the robbery count and sentenced defendant to a seven-year term of imprisonment, with a period of parole ineligibility of eighty-five percent under the No Early Release Act, N.J.S.A. 2C:43–7.2. Defendant was also sentenced to a concurrent five-year term of imprisonment on a separate, unrelated robbery charge to which he pleaded guilty.

Defendant appealed. In an unpublished opinion, the Appellate Division affirmed his conviction and sentence. The panel rejected defendant's claim that the prosecutor implied defense counsel had fabricated an alibi; the court found no error in the prosecutor's summation and reasoned that it focused on...