State v. Micelli, A-1 September Term 2012; Supreme Court; per curiam opinion; decided August 19, 2013. On appeal from the Appellate Division. [Sat below: Judges in the Appellate Division; Judge in the Law Division] D.D.S. No. 14-1-1051 [16 pp.]

Defendant Santino Micelli was charged with second-degree eluding a law enforcement officer by failing to stop. The state’s theory of the case was that defendant drove his mother’s Suzuki through a driving-while-intoxicated checkpoint, ignoring posted stop signs. Police officers found the abandoned car a short distance away. It contained letters with defendant’s name and was registered to his mother.

Subsequently, Sergeant Michael Kassai and Detective Thomas Kochis, both of whom were on duty at the DWI checkpoint, viewed a photograph of defendant on a computer screen at the police station. Lieutenant DePasquale showed defendant’s photograph to Kochis and said, “I’ve got a picture of the person that was possibly driving the car.” He showed the same photograph to Kassai shortly thereafter, stating “this is the guy that [Kochis] was looking for, you know what I’m saying?”

Prior to trial, defendant moved to suppress evidence of the out-of-court identifications, alleging that the procedures used by the investigating detective were impermissibly suggestive and unreliable. The court therefore conducted a hearing pursuant to United States v. Wade, 388 U.S. 218 (1967), at which both Kassai and Kochis testified that they saw the driver’s profile as the Suzuki went through the checkpoint and identified defendant as the driver.

The judge found that the identification procedures were not impermissibly suggestive under the first prong of the Manson/Madison test, but did not reach the second prong, which focuses on reliability and calls for a balancing of the two prongs. The judge denied defendant’s motion. The jury found defendant guilty of the lesser-included offense of third-degree eluding a police officer.

A majority of the appellate panel affirmed the conviction.

Defendant’s sole contention is that he was denied due process by virtue of the admission of impermissibly suggestive and unreliable identification evidence, contrary to Wade. He relies on the two-prong test articulated in Manson v. Brathwaite, 432 U.S. 98 (1977).

The state argues that the identifications were overwhelmingly reliable considering the totality of the circumstances.

Held: The reliability of the state’s evidence of out-of-court photographic identifications of defendant by two police officer witnesses should have been assessed at the Wade hearing before the trial court pursuant to the standard set in Manson v. Brathwaite, 432 U.S. 98 (1977) and adopted in State v. Madison, 109 N.J. 223 (1988), which applies here because the out-of-court identifications were completed prior to the decision in State v. Henderson, 208 N.J. 208 (2011).

The court says that in the first step of the two-step Manson/Madison test to determine whether an out-of-court identification is admissible, the judge must determine whether the identification procedure was impermissibly suggestive. If there is a finding of impermissible suggestiveness, the court must determine whether the procedure resulted in a very substantial likelihood of irreparable misidentification. To make that assessment, the judge must analyze the reliability of the identification by considering the totality of the circumstances and weighing the suggestive nature of the procedure against the reliability of the identification. The evidence may be admitted at trial if the judge finds that the identification procedure was reliable despite the impermissibly suggestive procedure used.

To assess the reliability of an identification, a court must consider the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

The Appellate Division majority and the dissent agreed that the identification procedure used was impermissibly suggestive. The majority then exercised original jurisdiction, made factual findings, and weighed the evidence, relying on the transcripts in order to consider the second Manson/Madison prong. The dissent would have remanded rather than weigh the evidence on the basis of the cold record.

The court concludes that the Appellate Division majority erred in exercising original jurisdiction, for several reasons. It says Rule 2:10-5 permits appellate courts to exercise original jurisdiction but only with great frugality, to end perpetual or lengthy litigation, not to weigh evidence anew or make independent factual findings. Case law discourages use of the rule if fact-finding is involved or if evidence poses credibility issues or requires the subjective and intuitive evaluations of a trial court that would otherwise dictate a remand. Further, the court says the importance of the issues to be determined at a Wade hearing mandate setting aside the Appellate Division judgment. The admissibility of identification evidence requires a careful balancing of the factors outlined in the Manson/Madison test, which depends, in part, on a trial judge’s assessment of the testimony presented at the hearing.

The court remands the matter to the Law Division for a new evidentiary hearing concerning the second prong of the Manson/Madison test, i.e., the reliability of the suggestive identification proceeding, and the appropriate balancing of both prongs, at which the Appellate Division’s unanimous holding that the identification procedure was impermissibly suggestive shall be deemed the law of the case.

Chief Justice Rabner, Justices LaVecchia, Albin, Hoens and Patterson, and Judges Rodriguez and Cuff (both temporarily assigned) join in this opinion.

For appellant — Alison S. Perrone, Designated Counsel (Joseph E. Krakora, Public Defender). For respondent — David A. Malfitano, Assistant Prosecutor (John L. Molinelli, Bergen County Prosecutor). For amicus curiae Attorney General — Deborah C. Bartolomey, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General; Hillary K. Horton, Deputy Attorney General, on the brief).