State v. Salaam

• Decision Date: 08 April 1988
• Citation: 541 A.2d 1075,225 N.J.Super. 66
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Abdul Haqq SALAAM, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 66

225 N.J.Super. 66

541 A.2d 1075

STATE of New Jersey, Plaintiff-Respondent, v. Abdul Haqq SALAAM, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted March 22, 1988.

Decided April 8, 1988.

Alfred A. Slocum, Public Defender, for defendant-appellant (Susan Green), Asst. Deputy Public Defender, of counsel and on the letter brief).

W. Cary Edwards, Atty. Gen. of New Jersey, for plaintiff-respondent (John Kennedy, Deputy Atty. Gen., of counsel and on the letter brief).

Before Judges MICHELS and GAYNOR.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Tried to a jury, defendant Abdul Haqq Salaam was convicted of armed robbery, a crime of the first degree, in violation of N.J.S.A. 2C:15-1. The trial court committed defendant to the custody of the Commissioner of the Department of Corrections for a term of 17 years and assessed a penalty of $25, payable to the Violent Crimes Compensation Board. Defendant appeals.

According to the State's proofs, on the evening of October 18, 1985, Shirley Fennell was working as a cashier at the Cumberland Farms convenience store located at 145 Union Avenue, Irvington, New Jersey. At approximately 9:00 p.m., a man later identified as defendant entered the store, selected a bag of corn chips and approached the register counter behind which Ms. Fennell was working. Defendant, who was standing approximately 2 1/2 feet from Ms. Fennell, handed her a dollar bill. However, when Ms. Fennell opened the register, she noticed that defendant was holding a pistol in his hand.

Defendant directed Ms. Fennell to give him all the 20 dollar bills in the drawer. When she stated that she could not because all bills over $10 in denomination went directly into a drop box, defendant told her to stop kidding and threatened to shoot her if she didn't give him all the money in the register. Ms. Fennell complied and handed over several ten and five dollar bills and a large number of singles which in total she estimated to be less than $75.00. Defendant then exited the store and disappeared from Ms. Fennell's view. The entire episode took approximately five to six minutes.

Ms. Fennell immediately called the Irvington Police Department and related the details of the incident. Before she had finished placing the call, Officer Gary Christie arrived on the scene and asked her for a description of the suspect. Ms. Fennell repeated that the assailant had a mustache and was of "medium height, dark skinned about 150 pounds." She also described the suspect as wearing a dark jacket and dark cap with a small brim. Officer Christie then transmitted a general broadcast of this information over the police radio.

Officers Gary Tola and Edward Gunnerson were on car patrol in the vicinity of Nye Avenue, approximately one half mile away from the Cumberland Farms store, when the description went out at 9:07 p.m. Almost immediately thereafter the officers observed a man with a mustache wearing a dark blue sweatshirt and black cap walking eastward on Nye Avenue. They asked him to stop and he complied. A pat-down of defendant ensued and a toy cap-gun was found in his possession, along with three tens, one five and twenty-seven one dollar bills totaling $62.

Approximately 10 to 12 minutes after the description had been broadcast by Officer Christie, defendant was placed into the squad car and taken immediately to the Cumberland Farms Store for an identification. Officer Tola went into the store where Ms. Fennell and Officer Christie were waiting, while defendant remained in the back seat of the car with Officer Gunnerson. When Ms. Fennell came out, she looked into the car and positively identified defendant as the man who had robbed her less than one-half hour earlier.

Defendant seeks a reversal of his conviction or, alternatively, a modification of his sentence on the following grounds set forth in his letter brief:

POINT I THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON IDENTIFICATION. (NOT RAISED BELOW).

POINT II DEFENDANT WAS DENIED A FAIR TRIAL BY THE USE OF AN ALIAS IN THE INDICTMENT AND BY THE TRIAL COURT'S REPEATED REFERENCE TO DEFENDANT'S ALIAS WHEN ADDRESSING THE JURY. (NOT RAISED BELOW).

POINT III THE TRIAL COURT ERRONEOUSLY RELIED UPON THE FACTS OF THE INSTANT CASE IN IMPOSING A SENTENCE GREATER THAN THE PRESUMPTIVE TERM.

We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, further comment is appropriate with respect to some of defendant's arguments.

I.

First, we emphasize that unlike the circumstances encountered in State v. Frey, 194 N.J.Super. 326, 476 A.2d 884 (App.Div.1984), the trial court's failure to include a specific charge on identification as approved in State v. Green, 86 N.J. 281, 430 A.2d 914 (1981), did not constitute error, let alone plain error. Ms. Fennell observed defendant in a well-lighted store for a period of approximately five minutes, during which time he was no more than 2 1/2 feet from her as she stood behind the counter. Moreover, the description which she gave to Officer Christie was of such accurate detail that Officers Tola and Gunnerson were able to apprehend a suspect bearing identical physical characteristics less than ten minutes later. Within a half hour after the incident had occurred, defendant was brought back to the convenience store, where Ms. Fennell identified him as the person who committed this robbery without hesitation. Moreover Ms. Fennell's belief that defendant committed the robbery remained constant and unqualified upon cross-examination by the defense.

Additionally, the corroborative evidence offered by the State renders the issue of identification far less compelling than it was in Green or Frey. At a distance of one-half mile from the scene of the crime, defendant was found carrying a toy pistol and $62, the majority of which were one dollar bills. Although circumstantial, this evidence is highly corroborative of Ms. Fennell's account of the crime itself and greatly reduced the chance that defendant's conviction was the product of mistaken identity.

A number of federal cases support the conclusion that we reach here. For example, in U.S. v. Roundtree, 527 F.2d 16 (8th Cir.1975) cert. den. 424 U.S. 923, 96 S.Ct. 1133, 47 L.Ed.2d 332 (1976), a federal agent working undercover was robbed by the defendant while in the process of purchasing drugs. Before the robbery occurred, the agent spent approximately one minute exchanging casual conversation with the defendant. At defendant's trial, as in the case at bar, defendant did not object when the judge gave only a general instruction on witness credibility. On appeal, the 8th Circuit Court of Appeals affirmed the conviction, noting that the agent had been extensively cross-examined on his identification of the defendant, and that "defense counsel's primary emphasis in his closing argument dwelled on the alleged tenuous nature of the eyewitness testimony." Id. at 19. In view of these strategical ploys, the court concluded that "the failure of defense counsel to ask for a cautionary instruction was not inadvertent" Ibid., nor did plain error result from the judge's failure to issue such instructions sua sponte. See also U.S. v. Kavanagh, 572 F.2d 9, 12-13 (1st Cir.1978), (where there existed ample circumstantial evidence of defendant's involvement in bank robbery, defense counsel emphasized inconsistencies and inabilities of witnesses to identify defendant and judge adequately covered elements of government's burden of proof in charge to jury, refusal to give requested charge on identification, while inappropriate, did not constitute reversible error). Accord U.S. v. Cain, 616 F.2d 1056 (8th Cir.1980) (where government relied on one eyewitness in prosecution of defendant for arson, court's refusal to give defendant's requested charge on identification did not constitute reversible error where that testimony was strongly corroborated by statements made by defendant to cellmate); Cf. U.S. v. Boyd, 620 F.2d 129, 131-132 (6th Cir.1980), cert. den. 449 U.S. 755, 101 S.Ct. 151, 66 L.Ed.2d 69 (1980); U.S. v. Lone Bear, 579 F.2d 522, 524 (9th Cir.1978).

Furthermore, a number of courts outside of New Jersey have held that such cautionary instructions do not have to be given upon request or sua sponte where, as here, there exists substantial corroborating evidence, State v. Ritchie, 292 Minn. 413, 195 N.W.2d 570, (Minn.1972); State v. Hart, 625 P.2d 21 (Mont.1981) cert. den. 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981); State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (S.C.1979); State v. White, 617 S.W.2d 596 (Mo.App.1981), where the identification of the witness is positive, certain and consistent, Minnifield v. State, 392 So.2d 1288 (Ala.Cr.App.1981); People v. Dyson, 106 Mich.App. 90, 307 N.W.2d 739 (Mich.App.1981); Hair v. State, 597 P.2d 347 (Okla.Cr.1979), or where defense counsel is able to attack the credibility of identification testimony through cross-examination and closing argument. State v. Edwards, 23 Wash.App. 893, 600 P.2d 566 (Wash.App.1979); State v. Swink, 620 S.W.2d 63 (Mo.App.1981); State v. Higgins, 592 S.W.2d 151 (Mo.1979), app. dism'd 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980); Buchanan v. State, 561 P.2d 1197 (Alaska 1977); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (Ark.1980). But see People v. Wright, 43 Cal.3d 399, 233 Cal.Rptr. 89, 729 P.2d 280 (1987) and State v. Long, 721 P.2d 483 (Utah 1986) (holding, with respect to identifications far more questionable than the one under review, that the trial court must give a cautionary instruction whenever identification is a central issue in the case and that instruction is requested by defendant ).

Consequently, we are satisfied that the issue of identification was not compelling enough, as in Green or Frey, to require the trial court...