State v. Romero

• Decision Date: 21 May 2007
• Docket Number: A-109 September Term 2005
• Citation: 922 A.2d 693,191 N.J. 59
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Christopher ROMERO, Defendant-Appellant.
• Court: New Jersey Supreme Court

922 A.2d 693

191 N.J. 59

STATE of New Jersey, Plaintiff-Respondent, v. Christopher ROMERO, Defendant-Appellant.

A-109 September Term 2005

Supreme Court of New Jersey.

Argued October 31, 2006.

Decided May 21, 2007.

Richard W. Berg, Trenton, argued the cause for appellant (Robin Kay Lord, attorney; Mr. Berg and Ms. Lord, of counsel and on the briefs).

Hillary K. Horton, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General of New Jersey, attorney).

Raquel Y. Bristol, Assistant Deputy Public Defender, argued the cause for amicus curiae Office of the Public Defender (Yvonne Smith Segars, Public Defender, attorney).

Gina Mendola Longarzo, Florham Park, argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Hack, Piro, O'Day, Merklinger, Wallace & McKenna and Connell & Foley, attorneys; Ms. Longarzo and Patricia A. Lee, on the brief).

Justice LaVECCHIA delivered the opinion of the Court.

Defendant, Christopher Romero, was convicted of first-degree robbery and related offenses in connection with the mugging of Carmine Cavaliere. Identification was the pivotal issue in the case. Defendant, who is Hispanic, claimed that the victim, a Caucasian, misidentified him. Because of the importance of the identification testimony and the dearth of corroborating evidence to supplement the reliability of that identification, defendant asked the trial court to instruct the jury with a cross-racial identification charge tailored to address this "cross-ethnic" identification. See State v. Cromedy, 158 N.J. 112, 727 A.2d 457 (1999) (establishing when jury must receive instruction warning about potential shortcomings of cross-racial identification testimony). The court provided the jury with an instruction on identification testimony generally, but no special Cromedy charge was given.

In this appeal, we are asked whether it was reversible error for the court not to have given a Cromedy charge in this setting. We conclude that the jury received ample instruction about the need to examine carefully the identification made by Cavaliere, and, thus, defendant was not denied a fair trial without a tailored Cromedy charge. Social science research does not tie identification unreliability directly to ethnic differences in the same way that racial differences can affect identification reliability. That said, identification testimony is an area that warrants vigilant supervision. An eyewitness's identification carries significant impact in criminal cases. This appeal highlights the importance of the model charge that guides jurors in the assessment of the reliability of that powerful evidence. We use this opportunity to refine the charge so that it will alert jurors in all eyewitness identification cases that such testimony requires close scrutiny.

I.

At about 9 p.m. on October 29, 2001, Cavaliere was attacked from behind by two men while walking home from a convenience store in Trenton. One attacker retreated quickly, but the other remained and wrestled with Cavaliere for several minutes, during which Cavaliere was stabbed. Cavaliere's trial testimony detailing the attack revealed the extent to which he could observe his attacker.

The night of the attack, Cavaliere first noticed defendant and another person while shopping in a neighborhood convenience store. At the time, he gave no thought to it — seeing the men in the store meant nothing to him. While walking home, however, he was "jumped" from behind. The first attacker stabbed Cavaliere and placed him in a headlock. That person was later identified as defendant. The second punched Cavaliere in the face and ran away. The first attacker remained and continued to wrestle with Cavaliere. When Cavaliere managed to place his attacker in a headlock, the attacker began "chopping away at [Cavaliere's] hand" with a knife, cutting four tendons. The attacker then escaped Cavaliere's hold, got on top of him, and attempted to stab Cavaliere in the eye and throat. Fortunately, a light came on in the house next to where the men were struggling, and Cavaliere's attacker fled.

Cavaliere described the attack as lasting anywhere from three to five minutes, during which his attacker was about six to eight inches away. There were a "couple of street lights on that part of the street." He stated that during at least a minute and a half of the attack he was able to see his attacker's face and that, the moment the outside light came on from the house one door down, he was "able to get a good look at [his attacker] because [they] were face-to-face with each other." After the attacker fled, two people came out of the illuminated house and called for emergency assistance. Those people were identified later as defendant's parents.

The night of the mugging, Cavaliere told investigating police that the man who attacked him with the knife was "Spanish," aged twenty to twenty-five, and had something wrapped around his head. Four days later, after he was released from the hospital and had returned home, Cavaliere elaborated on that description to the police, adding that the man had dark hair and dark skin.

Three days later, while driving down his street, Cavaliere saw defendant walking past Cavaliere's home at about noon. Cavaliere testified that he stopped the car, took a good look at defendant's face, then entered his home and immediately telephoned the police to report that he had just seen the man who had attacked and stabbed him. When the responding officers arrived, Cavaliere described the clothing being worn by his alleged attacker that day: a brown cap,¹ a short-sleeved shirt and a pair of jeans. The officers and Cavaliere then canvassed the neighborhood in a police vehicle looking for the man Cavaliere had described.

Unable to locate the person, the officers brought Cavaliere home. Fifteen or twenty minutes later, the officers returned to Cavaliere's home and told him that in the back of their police vehicle they had someone who fit the description given earlier by Cavaliere. Cavaliere approached the car and looked at the man in the backseat for "about a minute, minute and a half." Cavaliere testified that he recognized defendant "right away" as the person who had attacked him, but that he took his time before identifying defendant because he wanted to be "100 percent sure." At the time of the identification, the police officers asked Cavaliere whether he "was sure" that defendant was the man who had stabbed him and Cavaliere responded affirmatively. At police headquarters, Cavaliere reasserted that defendant was his attacker.

Defendant was indicted and charged with first-degree robbery, N.J.S.A. 2C:15-1 and 2C:2-6 (Count One); third-degree attempted theft, N.J.S.A. 2C:20-3(a), 2C:2-1, and 2C:2-6 (Count Two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) and 2C:2-6 (Count Three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) and 2C:2-6 (Count Four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) and 2C:2-6 (Count Five).

Defendant requested a Cromedy cross-racial identification charge. That model charge instructs the jury to consider

[t]he fact that an identifying witness is not of the same race as the perpetrator and/or defendant, and whether that fact might have had an impact on the accuracy of the witness's original perception, and/or the accuracy of the subsequent identification. You should consider that in ordinary human experience, people may have greater difficulty in accurately identifying members of a different race.

[Model Jury Charge (Criminal), Identification: Out-of-Court Identification (2007).]

Because the witness-victim is a non-Hispanic Caucasian male and the defendant is a Hispanic male, the trial court held a mini-charge conference prior to trial to hear defendant's request. After considering the arguments of counsel, the court refused to give the Cromedy charge. The court determined that, although Hispanic by ethnicity, defendant is Caucasian from the perspective of racial classifications and, therefore, a cross-racial jury charge was inapplicable.

In lieu of a Cromedy charge, the court instructed the jury, consistent with the model charge on out-of-court identifications, to consider the following when determining whether the identification testimony it heard was sufficiently reliable:

The witness's opportunity to view the person who committed the offense at the time of the offense[;] . . . the witness's degree of attention on the perpetrator when the crime was being committed; the accuracy of any description the witness gave prior to the identification of the perpetrator; the degree of certainty explained — expressed by the witness in making the identification; the length of time between the witness's observation of the offense and the first identification; discrepancies or inconsistencies, if any, between identifications; the circumstances under which any out-of-court identification was made; and any other factor based upon the evidence or lack of evidence in this case which you consider relevant to your determination whether the identifications were reliable.

The jury convicted defendant on all counts. In sentencing defendant, the court merged Count Two into Count One and Count Five into Count Four. On the first-degree robbery charge (Count One), the court imposed a sentence of fifteen years of incarceration, with a mandatory eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In respect of Counts Three and Four, the court sentenced defendant on each to five years of imprisonment, with a two-and-one-half-year period of parole ineligibility, to be served concurrently with the sentence imposed for Count One. Pursuant to a plea agreement on a separate indictment, defendant pled guilty to third-degree unlawful possession of a weapon and the court sentenced him to a term of...