NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5482-11T3

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, October 17, 2013 v. APPELLATE DIVISION LARRY R. HENDERSON,

Defendant-Appellant.

______________________________________________________

Argued September 17, 2013 – Decided October 17, 2013

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-09-3383.

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).

Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

In the wake of the Supreme Court's landmark decision in the

earlier appeal in this matter, State v. Henderson,

(2011), we consider defendant's appeal of the trial court's more

recent refusal to exclude eyewitness identification evidence.

In examining the issues, we (1) briefly outline the relevant

factual circumstances and earlier proceedings, then (2) describe

those matters not before us,1 and finally (3) review the trial

court's decision at the most recent Wade hearing,2 which was

based on the test devised by the Supreme Court in the earlier

appeal that replaced the test utilized in this State since at

least State v. Madison,

(1988).

I

Rodney Harper was shot in Camden in the early morning hours

of January 1, 2003. Harper and James Womble were drinking and

smoking crack that evening at a friend's apartment. Harper left

prior to midnight and returned sometime between 2:00 and 2:30

a.m. Soon after, two men forcibly entered the apartment.

Womble knew one of them, codefendant George Clark, who arrived

to collect money from Harper. Womble did not know the other

intruder.

1 Judges Espinosa and Koblitz do not join in Section II of this opinion. 2 United States v. Wade,

,

,

(1967).

2 A-5482-11T3 Harper and Clark went into another room, while the unknown

intruder kept Womble away at gunpoint in a hallway. Womble

heard an argument in the other room and then a gunshot. As

Clark and his confederate departed, Clark warned Womble not to

"rat [him] out, I know where you live."

. Harper died on January 10 from a gunshot wound to

the chest.

Womble was questioned by Camden County Detective Luis Ruiz

and Investigator Randall MacNair on January 11. As the Supreme

Court recounted, Womble told them "he was in the apartment when

he heard two gunshots outside, that he left to look for Harper,

and that he found Harper slumped over in his car in a nearby

parking lot, where Harper said he had been shot by two men he

did not know."

In an interview the following day, the officers confronted

Womble with inconsistencies in his prior statement. Womble

responded that he was in fear of retaliation but decided to

"come clean." He told the officers of the intrusion and how one

culprit held him at gunpoint while the other argued with and

eventually shot Harper.

On January 14, the officers had Womble view a photographic

array. The nature of that identification has been thoroughly

described in the Supreme Court's opinion,

, as well

3 A-5482-11T3 as our own, State v. Henderson,

(App. Div. 2008). Essentially, in initial compliance with the

Attorney General's Guidelines for photographic identifications,3

the array was presented to Womble by Detective Thomas Weber, who

was not investigating the case.4 Weber properly presented Womble

with eight photographs, one of which depicted defendant, and the

others were of African-American males of the same approximate

age and appearance as defendant.

. The

photographs were also properly shown to Womble one by one. As

the Court observed, "Womble quickly eliminated five . . .

reviewed the remaining three, discounted one more," and then

said "he 'wasn't 100 percent sure of the final two pictures.'"

.

Weber informed the other officers that Womble had narrowed

it down to two photographs but could not make a final

identification. MacNair and Ruiz then entered the interview

room and spoke to Womble; Weber was not present during this

discussion. In our earlier opinion, we summarized what the

3 Office of the Attorney General, Attorney General Guidelines for Preparing and conducting Photo and Live Lineup Identification Procedures (2001). 4 The Attorney General Guidelines direct that primary investigators should not administer photo or live lineup identification procedures "to ensure that inadvertent verbal cues or body language do not impact on a witness."

(citations omitted).

4 A-5482-11T3 testimony at the earlier Wade hearing revealed about what

happened when the investigating officers spoke to Womble:

M[a]cNair testified . . . that he felt Womble was "holding back from us," and so he and Ruiz "wanted to go in and to clarify and be clear on what he was saying to us." He also testified that Womble was concerned about the safety of his elderly father because the second gunman was still at large. M[a]cNair testified that, in order to put Womble's mind at ease, he "told him to focus, to calm down, to relax and that any type of protection that [he] would need, any threats against [him] would be put to rest by the Police Department." Womble then responded that he could make an identification. With that, M[a]cNair and Ruiz left the room.

Officer Weber re-entered the room and again showed Womble the array. This time, according to Weber, Womble "slammed his hand down on the table and said, '[t]hat's the mother fucker there,'" thus positively identifying defendant as one of the men involved in the shooting of Harper.

[

.]

The original trial judge conducted a Wade hearing but

concluded the procedure was not suggestive and permitted the

State to use at trial evidence of Womble's out-of-court

identification of defendant as the man who held him at gunpoint

in the hallway while Clark shot Harper in another room.

5 A-5482-11T3 At trial, as the Supreme Court observed, "[t]he primary

evidence against defendant . . . was Womble's identification[5]

and Detective MacNair's testimony about defendant's post-arrest

statement." Id. at 226 (in a footnote at the conclusion of this

sentence, the Court observed that Clark's recorded statement,

which "placed Henderson at the apartment but largely exculpated

him," was also played for the jury).

Defendant was acquitted of murder and aggravated

manslaughter but convicted of reckless manslaughter, N.J.S.A.

2C:11-4(b)(1), and other offenses, and later sentenced to an

aggregate eleven-year prison term subject to a nearly six-year

period of parole ineligibility, pursuant to the No Early Release

Act, N.J.S.A. 2C:43-7.2.

Defendant thereafter appealed, and we determined that the

trial judge misapplied the Manson/Madison test6 for determining

5 Womble also made an in-court identification of defendant. As the Court noted, "Womble had no difficulty identifying defendant at trial eighteen months later." Id. at 225. Indeed, there is hardly a more suggestive identification procedure than that which occurs at trial, where the only likely person to be identified is the one seated next to defense counsel. See

; see also Perry v. New Hampshire, __ U.S. __, __,

, 727,

, 710 (2011). 6 Both then and now the federal constitutional rights triggered by such circumstances are governed by the procedure outlined in Manson v. Braithwaite,

,

,

(1977). Until Henderson's prior appeal, this same procedure (continued)

6 A-5482-11T3 the reliability of an out-of-court eyewitness identification –

because the trial judge failed to conclude that the

identification procedure was impermissibly suggestive and, thus,

failed to analyze the Manson/Madison reliability factors in

light of the corrupting effect of the suggestive process – and

we remanded for a new Wade hearing before a different judge.

Henderson, supra,

. We also held that

if the new hearing required exclusion of the out-of-court

identification, then the trial judge was to determine whether

the witness could make an in-court identification from an

independent source.

. And, we lastly concluded that

"if the Wade or taint hearings require the suppression of

evidence then defendant is entitled to a new trial, but not

otherwise."

The Supreme Court granted certification, State v.

Henderson,

(2008), and, later, summarily remanded

to the trial court for a plenary hearing "to consider and decide

whether the assumptions and other factors reflected in the two-

part Manson/Madison test, as well as the five factors outlined

in those cases to determine reliability, remain valid and

(continued) was adopted for purposes of defining the limits of our state constitution in this regard. See

, and cases cited therein.

7 A-5482-11T3 appropriate in light of recent scientific and other evidence."

Henderson, supra,

. The Court appointed Judge

Geoffrey Gaulkin, P.J.A.D. (retired and temporarily assigned on

recall) to preside at the remand hearing.

.

On the basis of evidence adduced at the remand hearing

conducted by Judge Gaulkin, the Court rendered its landmark

decision, significantly altering the methodology for considering

the role of suggestive police identification procedures and

ascertaining the reliability of eyewitness identifications.

. At the same time, the Court considered the reach of

its decision and concluded that the new rule would apply only to

future cases "except for defendant Henderson" and the defendant

in a companion case.

. As for Henderson, the Court

held he was entitled to "an expanded hearing consistent with the

principles outlined" in its decision.

. The Court

further mandated that "[i]f the trial court finds that the

identification should not have been admitted, then the parties

should present argument as to whether a new trial is needed,"

and that "[i]f [the out-of-court] identification was properly

admitted, then defendant's conviction should be affirmed."

8 A-5482-11T3 In accordance with the Court's mandate, Judge Samuel D.

Natal conducted a plenary hearing,7 at which the State called

MacNair, Ruiz and Weber to testify; defendant called Assistant

Prosecutor Christine Shah and Womble as witnesses. Based on his

view of this evidence, Judge Natal concluded that the

application of the new test announced in Henderson did not

require exclusion of the out-of-court identification.

Defendant again appeals, arguing the judge failed to follow

Henderson's edicts in the following ways:

A. The Trial Court Failed to Find Compliance With Various System Variables By Clear And Convincing Evidence.

B. The Trial Court Failed to Properly Find And Weigh The Effect Of Various Estimator Variables.

1. The Trial Court Erred In Its Analysis Of the Duration Estimator Variable.

2. The Trial Court Erred By Failing To Find The Weapon Focus Estimator Variable.

3. The Trial Court Erred In Its Analysis Of The Stress Estimator Variable.

7 In our earlier decision, we mandated the conducting of a new Wade hearing by a different judge.

. Because the original trial judge had retired in the interim, the Supreme Court recognized that particular issue had been rendered moot.

n.12.

9 A-5482-11T3 4. The Trial Court Erred In Its Analysis Of The Distance And Lighting Estimator Variables.

5. The Trial Court Erred In Its Analysis Of The Intoxication Estimator Variable.

6. The Trial Court Erred In Its Analysis Of The Memory Decay Estimator Variable.

C. Even If the Trial Court Found Compliance With Various System Variables By Clear And Convincing Evidence, And Even If The Findings As To The Various Estimator Variables Pass Muster, The Trial Court Failed [To] Properly Weigh The Totality Of The Effect Of The Various Estimator Variables In Conjunction With The System Variables.

We reject these arguments and affirm.

II

Before turning to the issues raised by defendant in this

appeal, this section of this opinion, which as noted in footnote

1 Judges Espinosa and Koblitz do not join in, makes note, for

the sake of completeness, of two issues: one that is not before

us and another not open for question.

A

In Henderson, the Court observed it had only altered "the

State's framework for evaluating eyewitness identification

evidence,"

(emphasis added), recognizing it had "no

authority, of course, to modify Manson,"

at 287 n.10. This

10 A-5482-11T3 ostensibly left open to defendant the opportunity to continue to

seek exclusion of the eyewitness identification evidence

pursuant to the unaltered federal Manson test.8 Naturally, if

Henderson provides greater state constitutional rights to the

accused than offered by federal constitution principles, the

difference between the two tests is inconsequential. But the

assumption that Henderson grants greater individual rights than

does Manson is not as obvious as it has been in other

circumstances where our Supreme Court recognized more expansive

state constitutional rights. See, e.g., Lewis v. Harris,

(2006); State v. McAllister,

(2005); State v. Hempele,

(1990); State v.

Hunt,

(1982).

Defendant argues that the Manson test, as previously

described by our Supreme Court, placed the burden of persuasion

for pretrial screening of suggestive eyewitness identifications

8 The Supreme Court's mandate does not foreclose the pursuit of this federal argument. The Court's judgment in Henderson "modif[ied] and affirm[ed] the judgment of the Appellate Division." Id. at 304. Our judgment had reversed the trial judge's denial of exclusion of the identification evidence without distinction between defendant's federal and state constitutional rights because there was then no distinction between the legal framework applicable to those rights. The Supreme Court in Henderson did not reverse our judgment, which reversed the trial court, so it may be assumed the federal avenue remained open to defendant following the Supreme Court's mandate regarding the new state constitutional framework.

11 A-5482-11T3 on the prosecution. See

(citing

,

,

, in describing the prosecution's "formidable" burden of

"proving by clear and convincing evidence" that any

identifications of the defendant, whether in or out of court,

"had a source independent of the police-conducted identification

procedures"), and the Attorney General has not argued to the

contrary.9

Certainly a shift in the burden of persuasion from the

prosecution to the defense in the pretrial screening process

could form the basis for a legitimate argument that the

Henderson state constitutional framework makes less likely an

exclusion of out-of-court identification evidence than does the

existing federal framework. If that were the case, then it

would have behooved defendant to seek suppression pursuant to

the federal test as well. But the premise for such an argument

is not apparent. Henderson held that, under the new framework,

the ultimate burden of persuasion in the pretrial screening

process "remains" on the defendant, Henderson, supra,

The matter is not entirely free from doubt. The Supreme Court of the United States – from Wade to Perry – has consistently omitted a description of the nature of the burden of persuasion regarding whether suggestiveness has corrupted the reliability of an out-of-court identification or upon whom that burden rests.

12 A-5482-11T3 at 289, a word which strongly suggests the Court did not believe

its new framework altered the existing Manson allocation of the

burden of persuasion.

In any event, at oral argument in this appeal, defendant

conceded he is not arguing the trial judge erred in denying

exclusion pursuant to federal constitutional principles10 and, in

fact, he has not briefed it.11 Accordingly, that question is not

before us.

B

Second, as we have already observed, the Supreme Court

concluded that defendant was entitled to the benefit of the new

rule, id. at 302, which not only altered the method for pretrial

screening of eyewitness identifications, but also mandated

modified jury instructions to include the various new factors

relevant in assessing the reliability of eyewitness

10 The trial judge, in fact, did not analyze the evidence pursuant to the Manson standard and it appears defendant did not urge that he do so. An argument not presented in the trial court is not cognizable on appeal. Nieder v. Royal Indem. Ins. Co.,

(1973). 11 At oral argument, defendant suggested Perry v. New Hampshire somehow foreclosed his federal argument. Perry, however, determined only that federal constitutional precepts do not require pretrial screening for reliability where the suggestive circumstances were not arranged by law enforcement officers. __ U.S. at __, 132 S. Ct. at 730, 181 L. Ed. 2d at 713. This exception is not implicated here, and there is nothing in the Court's opinion in Perry that would suggest the federal Manson test has been altered or modified in any way.

13 A-5482-11T3 identification evidence, id. at 288. The Court's ultimate

judgment as applied to defendant, however, provided him only

with the benefit of the new pretrial screening approach. That

is, the Court held defendant would only be permitted to seek a

new trial if he succeeded in having the identification evidence

excluded at the plenary hearing; in the event the trial judge

held the identification evidence was properly admitted, the

Court commanded that "defendant's conviction should be

affirmed." Id. at 300. Defendant was not given the benefit of

the new rule regarding the manner in which juries should be

instructed on reliability because his conviction – with the

denial of his application for exclusion of identification

evidence at the new expanded pretrial hearing – must be affirmed

pursuant to the Court's clear and unambiguous mandate. See

Flanigan v. McFeely,

(1956) (courts have "a

peremptory duty to obey" a higher court's mandate "precisely as

it is written").

Although defendant suggests the incongruity of being given

the benefit of a rule – crafted by the Court in the very appeal

he pursued – that inevitably passes the reliability of

identification evidence to the jury but denies him a new trial

absent a favorable ruling at the plenary hearing, the Court's

holding is unmistakable in that regard, and defendant recognizes

14 A-5482-11T3 as much. Accordingly, if the trial judge properly refused to

exclude the eyewitness identification evidence, defendant's

conviction must be affirmed even though he was convicted on the

basis of jury instructions that did not reflect the Court's new

approach toward eyewitness identification evidence.

III

In arguing the trial judge erroneously refused to exclude

the eyewitness identification evidence in question, defendant

presents three chief arguments. Defendant initially claims the

new rule imposes on the State the burden of ultimately showing

the evidence is reliable by "clear and convincing evidence." He

then argues that the burden placed on defendant in the new

framework is not adequately defined. And defendant lastly

argues the trial judge did not "properly find and weigh" the

effect of the various estimator variables discussed in the

Supreme Court's opinion.

A

Defendant urges the imposition of a burden on the State to

demonstrate the reliability of an eyewitness identification in

the pretrial screening process by "clear and convincing

evidence," but that is simply not what the Supreme Court

15 A-5482-11T3 mandated. Instead, the Court described the new framework in the

following way:

First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. That evidence, in general, must be tied to a system – and not an estimator – variable.

Second, the State must then offer proof to show that the proffered eyewitness identification is reliable – accounting for system and estimator variables – subject to the following: the court can end the hearing at any time if it finds from the testimony that defendant's threshold allegation of suggestiveness is groundless. . . .

Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. To do so, a defendant can cross-examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables.

Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions. . . .

[Id. at 288-89 (emphasis added; citations omitted).]

In short, defendant must first show "some evidence" of

suggestiveness to obtain a plenary hearing, following which the

16 A-5482-11T3 State must "offer proof" of reliability while the "ultimate

burden remains" on defendant to "prove a very substantial

likelihood of irreparable misidentification."

It is not

possible to rationally conclude that the Court intended to

saddle the State with the burden of proving reliability by

"clear and convincing evidence," a phrase which once was

recognized to be part of the former pretrial screening test, see

,12 but nowhere appears in the

Court's cogent and unambiguous description of the new framework.

The only burden placed on the State would appear to be that

referred to in the second part of the new framework: the State

must "offer proof to show that the proffered eyewitness

identification is reliable." Henderson, supra,

.

We would equate this burden to "offer proof" with the "burden of

producing evidence" described in N.J.R.E. 101(b)(2), which is

sometimes referred to as the "burden of going forward." The

burden of producing evidence has been described by the Court "as

so light as to be little more than a formality." State v.

Segars,

(2002) (internal quotations and

12 Defendant also urges, as analogous, the "clear and convincing" burden imposed on the State with regard to the pretrial screening of statements by tender-years declarants, State v. Michaels,

(1994), and the pretrial screening of evidence offered pursuant to the theory of inevitable discovery, State v. Sugar,

(1985).

17 A-5482-11T3 citations omitted). Such a burden is met "whether or not the

evidence produced is found to be persuasive."

All that

is necessary to sustain this burden is that the party so saddled

provide evidence on the issue that is germane to the inquiry

with sufficient clarity so that the opposing party has a full

and fair opportunity to respond. Cf., Biunno, Weissbard &

Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E.

101(b)(2) (2013). The party upon whom this burden is placed

cannot remain silent and still prevail.

. We assume this is the burden the Court imposed on the

State in the second part of the new framework. Of course,

nothing has altered the State's burden of proving at trial the

identity of the accused as the person who committed the charged

offense beyond a reasonable doubt.

We reject defendant's forceful contention that the burden

of persuasion rests on the State; the Court very clearly held

that burden "remains" with defendant. Henderson, supra,

.

B

Defendant also expresses uncertainty about the degree to

which defendant is required to persuade a trial court at a Wade

hearing.

18 A-5482-11T3 For purposes of an application to exclude eyewitness

identification evidence based on state constitutional grounds,

it is what the Court said it is: a defendant must prove "a very

substantial likelihood of irreparable misidentification." 208

N.J. at 289. This phrase was not newly crafted. It was uttered

in this context by the Supreme Court of the United States more

than forty years ago when defining the application of the due

process clause to eyewitness identification evidence. See,

e.g., Simmons v. United States,

,

,

(1968).

It is conceivable our Supreme Court viewed the process as

similar to that routinely undertaken by trial judges in applying

N.J.R.E. 403 in determining whether relevant evidence should be

excluded because "its probative value is substantially

outweighed" by the risks delineated in that evidence rule. In

similar language, Manson described the federal process for

excluding eyewitness identification evidence as requiring a

determination of whether a witness's ability to make an accurate

identification is "outweighed by the corrupting effect" of law

enforcement suggestion.

,

,

; see also Perry, supra, __ U.S. at __, 132

S. Ct. at 725, 181 L. Ed. 2d at 707-08.

19 A-5482-11T3 In any event, it is not our place to describe this burden

in other terms, such as by "a preponderance of the evidence" or

by "clear and convincing evidence," since the Supreme Court

chose not to describe the burden beyond the language contained

in its opinion.

C

Our Supreme Court's decision to alter both the framework

for pretrial screening eyewitness identification evidence and

the manner in which juries are to be instructed to consider such

evidence was based on its recognition that research has revealed

that human memory is "complex," Henderson, supra,

, "malleable,"

, and subject to "an array of

variables [which] can affect and dilute memory and lead to

misidentifications,"

Scientific studies, upon which the

Henderson Court relied, "divide[] those variables into two

categories: system and estimator variables."

The former

are those within the control of the criminal justice system,

such as police identification procedures.

The latter are

"related to the witness, the perpetrator, or the event itself –

like distance, lighting, or stress – over which the legal system

has no control."

Defendant argues that the trial judge did not properly find

and weigh various estimator variables, including those relating

20 A-5482-11T3 to the duration of the encounter, the involvement of a weapon,

stress, distance and lighting, intoxication, and memory decay.

We reject this argument because Judge Natal's comprehensive

written decision reveals that he thoroughly considered and

weighed these factors. The judge found that: Womble had an

opportunity to observe defendant for "several minutes," later

found to be five minutes, despite the fact that a gun was

pointed at him; the event "was most likely highly stressful";

and Womble was within two feet of defendant during the encounter

in an area sufficiently lit by a lamp in the hallway. In

addition, the judge found an absence of evidence "to show what

effect [the use of] crack cocaine and alcohol would have had" on

Womble "to prevent him from accurately observing" defendant. In

fact, the judge determined that, at the time of the shooting,

Womble was "regularly using drugs and that when he used drugs"

he was able to "do anything, including driving and going to

work." The judge also found that, on the night of the shooting,

Womble was playing chess with Harper when the intrusion

occurred, thus suggesting his faculties were not unduly

impaired. In addition, the judge found that, two weeks after

the shooting, Womble was also able to show police the location

of a shell casing he had tossed away on the night of the

shooting, further demonstrating his ability to retrieve his

21 A-5482-11T3 memories of the evening two weeks earlier.13 And, in further

considering memory decay, the judge determined that Womble

selected defendant's photograph from an array two weeks after

the shooting – what the judge described as "a relatively short

span between the incident and the identification."

These findings are adequately supported by the evidence

adduced at the hearing and, therefore, command our deference,

State v. Robinson,

(2009), as does the judge's

ultimate conclusion – based upon his sifting through and

weighing the multitude of facts and circumstances – that

defendant failed to demonstrate a very substantial likelihood of

misidentification. An appellate court must refrain from second

guessing a judge's factual conclusion when all that is before

the court is what is contained in a static record. We find no

reason to disturb the experienced trial judge's findings and

conclusions.

We, thus, affirm the order denying suppression and the

judgment of conviction.

Affirmed.

13 As noted in our earlier opinion, Womble had told police that on the night of the shooting he had "retrieved from the [apartment] floor a shell casing, which he later threw into the street."

.

22 A-5482-11T3