PER CURIAM.
Defendant Omar Bridges is serving an aggregate forty-year prison term for attempted murder, three weapons offenses, and a theft offense, crimes with which he was charged after he and others stole a Jaguar, engaged in a shoot-out with occupants of a black Subaru, and shot a police officer during an ensuing chase. A jury found defendant guilty of those crimes at his second trial, his convictions at his first trial having been reversed on appeal. In this appeal, defendant contends that the judgment of conviction entered after his second trial should be reversed for the following reasons, which he raises in his initial brief:
In a pro se supplemental brief, defendant adds this argument:
Having considered defendant's arguments in light of the record and controlling law, we reject them and affirm the judgment of conviction.
An Essex County grand jury charged defendant and two co-conspirators in a thirteen-count indictment with three counts of first-degree attempted murder,
In the same indictment, the grand jury charged a co-defendant with third-degree theft of movable property with a value of more than $500,
A jury convicted defendant at his first trial of all counts of the first indictment except three, eight, eleven, twelve, and thirteen; and of the sole count of the second indictment. We reversed defendant's convictions and sentence on direct appeal.
At sentencing, the court merged counts two and six with count one and sentenced defendant on count one to a twenty-year custodial term subject to the No Early Release Act,
The State developed the following proofs at defendant's retrial. Uniformed Newark Police Officers Eduardo Patinho and Kimberly Gasavage were patrolling in a marked police car at 3:45 a.m. on October 9, 2004, when they encountered a shootout at the intersection of Boyden and Orange Streets. The officers saw a Jaguar facing westbound in the eastbound lane of Orange Street, and a black Subaru facing southbound on Boyden Street. The rear seat passengers on the driver's side of each vehicle were shooting at each other. According to Officer Patinho's testimony, he could see the weapon the Jaguar's rear-seat passenger was firing. "It looked like a little mini submachine gun, silver."
Officer Gasavage, who was seated in the patrol car's front passenger seat, radioed dispatch. Officer Patinho activated the car's sirens and lights. The occupants of the Jaguar and Subaru fled in the cars, the Jaguar west on Orange Street, the Subaru south on Boyden. The officers pursued the Jaguar.
The pursuit lasted approximately two minutes, the Jaguar at times reaching speeds of ninety to one hundred miles per hour, the police car following at a distance of approximately a car length. When the Jaguar crossed a set of railroad tracks it became airborne and sustained damage upon landing, its transmission fluid leaking over Orange Street. The car lost power, turned on North Sixth Street, and stopped just before the intersection of North Sixth Street and Seventh Avenue.
Officer Patinho stopped the patrol car approximately ten feet from the Jaguar and turned on the patrol car's spotlight, which illuminated the left side of the Jaguar. The officer then got out of the patrol car, service weapon drawn, and repeatedly yelled to the Jaguar's rear passenger, "let me see your hands." The passenger shot Officer Patinho through his left shoulder. After shooting the officer, the passenger "[stuck] his head out the window" and the officer "[got] a clear shot at him, looking at him." Officer Patinho fired five rounds at "the individual behind the driver's side of the Jaguar" before the passenger shot him in the jaw and "blew everything out."
Officer Gasavage also "returned fire." She fired, specifically, at the rear driver's side of the Jaguar.
The driver and front seat passenger of the Jaguar fled on foot. Officer Patinho testified that they fled before the shooting started, though on cross-examination he conceded that at the previous trial he testified that the driver and front passenger fled after he fired his five rounds. In any event, after Officer Gasavage went to the aid of Officer Patinho, the shooter fled as well.
Officer Gasavage testified that she could not identify any of the Jaguar's occupants, though she only saw the rear-seat passenger with a weapon, and she only fired at the rear-seat passenger. Officer Patinho testified that the rear seat passenger was the sole occupant to fire at him; that the target of his return fire was the rear seat passenger; and that he could identify the rear seat passenger. During his testimony, he identified defendant as the person who shot him.
According to Officer Patinho, after defendant shot him through the shoulder, he peeked out of the rear window. When defendant peeked out, the officer was standing approximately ten feet away and got a good look at defendant's face, which was illuminated by the spotlight from the patrol car. That was the only time Officer Patinho was able to see defendant's face during the entire episode. Although defendant peeked out the window for only approximately one second, and though that one-second glimpse was "the entire basis of [the officer's] identification [of defendant]," Officer Patinho testified that he sees defendant's face in his mind's eye every day.
The State also presented the testimony of co-defendant Alfonse Ollie. When Ollie was arrested in 2004 following the shooting, he told police that he was the driver of the stolen Jaguar. During his subsequent guilty plea to the charge of eluding police, he again admitted that he was driving the Jaguar. At the first trial, he testified against defendant and identified defendant as the shooter. He also admitted that he was the driver when he spoke to an investigator for defendant's attorney a month before the retrial. Yet, when he testified during the retrial, he claimed that he was the rear seat passenger who shot Officer Patinho with a TEC 9, that Rasheem Woods was driving, and that defendant was one of the passengers who fled after the Jaguar came to a stop.
For nearly two days, the prosecutor examined Ollie and impeached him with his prior statements. According to the impeachment evidence, Ollie, defendant, and two others stole the Jaguar; the shootout at Orange and Boyden Streets involved rival gang members; and defendant, who had the TEC 9, sat in the rear seat of the Jaguar and shot Officer Patinho.
The State also established through Ollie that his cellular phone, which was propelled from his lap when the Jaguar hit the train tracks, was found between the driver's seat and the car's front door. Although Ollie claimed to have been in the rear seat behind the driver when the shooting started, he admitted that only defendant was shot.
After learning that defendant was shot, Ollie sought out a friend, a nursing assistant, and asked if she could remove the bullet. Ollie took her medical bag, went to where defendant was staying, and told defendant to remove the bullet himself. Defendant eventually went to a hospital in Pennsylvania to have the bullet wound in his abdomen treated.
The TEC 9, a pair of gloves, and defendant's cellular phone were found in adjacent yards, approximately twelve feet apart. The yards were between the scene of the shooting and the Garden Spires housing complex where defendant went after the shooting and telephoned a cab.
Later that morning, at eleven o'clock, defendant appeared at the emergency room of Easton Hospital in Pennsylvania with a gunshot wound of the lower abdomen. He identified himself as Sharif Johnson. He told the attending nurse that he had been shot at a club in Easton. When told he would need surgery, defendant asked the attending nurse to bandage his wound and let him leave the hospital. Nevertheless, defendant underwent surgery. Hospital personnel notified local police who fingerprinted defendant, learned his true identity, and subsequently transmitted the information to New Jersey police, who by then had issued a fugitive warrant.
Defendant presented the testimony of two witnesses, Rasheem Woods and Brett Hutchinson. According to Woods, he went to a bar called Mercedes & Mink on October 8, 2004, where he met Ollie, defendant, and a man named Nitti shortly before midnight. The four left the bar around one o'clock or one thirty on the morning of the ninth in a car that Ollie said he had stolen. When they stopped at Baxter Terrace to drop off defendant, Ollie and some "guys" who may have been from an "affiliated gang" became involved in an altercation. Ollie "whipped the gun that he had out and he started shooting at the guys." As Woods and the others fled in the car, a police car on Orange Street started to chase them. In trying to elude the police, Woods tried to turn off Orange Street, but because he was going too fast, the Jaguar collided with a van. As Woods turned on North Sixth Street, the car began losing power. Woods fled on foot.
Woods testified that defendant was in the front passenger seat and Ollie was in the rear seat with the gun. At some point Woods saw Ollie using defendant's cell phone.
On cross-examination, Woods claimed that when he pled guilty to riding in a stolen car, he lied to the judge when he said Ollie was driving the car, and defendant had the gun and shot a cop. He claimed he lied at his plea hearing to get a favorable deal.
Brett Hutchinson, a forensic scientist with the New Jersey State Police, testified that DNA testing revealed defendant was not the source of the DNA taken from the blood on the passenger seat of the stolen Jaguar; nor was defendant the source of the DNA sample taken from a jacket that was also found in the vicinity of the shooting. The gloves recovered near the TEC 9 did not contain enough of a DNA sample to obtain a profile.
Based on the evidence presented by the State and defendant, the jury returned the verdict that we have previously recounted.
Defendant first argues that the court erred when it denied his request for a
The court rejected defendant's motion, agreeing with the State's position that nothing would be presented at a hearing that had not been brought out during cross-examination of the officer at the first trial. The court noted that the transcript of the first trial was available, and defendant could use that to impeach the officer's identification of him. The court commented that nothing had tainted Officer Patinho's previous in-court identification of defendant.
Defendant repeats on appeal the arguments he made to the trial court. While recognizing the "unique factual scenario because Patinho's first identification ... occurred at trial," defendant nevertheless asserts that he "has established a highly suggestive identification, the functional equivalent of an egregiously suggested showup." We reject defendant's argument in view of what we perceive to be significant differences between pre-trial identification procedures and identifications that take place at trial.
We begin by noting, as did defendant, the unique circumstances of this case: the victim of a shooting was first asked at trial, more than two years after the event, if he could identify the perpetrator. The United States Supreme Court's decisions concerning pretrial identifications do not support defendant's argument in these unique circumstances.
In
The same day the Supreme Court decided
The Court subsequently held that the Due Process Clause of the Fourteenth Amendment does not compel the exclusion, apart from any consideration of reliability, of pretrial identification evidence obtained by a police procedure that is both suggestive and unnecessary.
The Supreme Court has declined to extend its "due process check on the admission of eyewitness identification" to "cases in which the suggestive circumstances were not arranged by law enforcement officers."
Our State Supreme Court, on the other hand, has taken a broader approach to the issue of pre-trial identifications. In
Under the revised framework, "to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification."
The Court extended a defendant's right to a hearing to suggestive conduct by private actors in
Here, defendant argues that the principles underlying
To be sure, in-court identifications involve many of the same factors as one-on-one showups, which are inherently suggestive,
These factors were all present at defendant's first trial. Officer Patinho did not know his perpetrator before the night of the shooting; observed him only for a single second when the perpetrator was firing an automatic weapon in an attempt to kill him; and identified defendant for the first time more than two years after the event when defendant was seated next to his attorney at counsel table. Officer Patinho acknowledged during cross-examination that, before identifying defendant at the first trial, he never told the lead detectives that he had seen the person who shot him. He also acknowledged that, before the first trial, he had reviewed police reports concerning the shooting; and that detectives had told him Alphonse Ollie claimed defendant shot him.
Despite such similarities between showups and in-court identifications that occur at trial, we reject defendant's contention that the principles the Court pronounced in
In addition, significant safeguards are in place to protect against a conviction based on a mistaken identification made for the first time at trial.
Before trial, through discovery, counsel can identify key witnesses when identification of a defendant is at issue, investigate the circumstances under which eyewitnesses have identified a defendant, prepare to attack the credibility of such witnesses, and, if appropriate, request a lineup. Our Supreme Court has previously held that a trial court is authorized to order a pretrial lineup when identification is a substantial material issue, there is a degree of doubt concerning the identification, and there is a reasonable likelihood that a lineup would be of some probative value.
Those considerations, especially in view of
At trial, the "safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability" include "the defendant's right to the effective assistance of an attorney, who can expose the flaws in the eyewitness' testimony during cross-examination and focus the jury's attention on the fallibility of such testimony during opening and closing arguments."
Numerous safeguards available to a defendant after an indictment and the appointment or retention of counsel significantly distinguish pre-indictment showups from in-court identifications at trial. For that reason, we decline to extend exclusionary principles governing pre-trial identification procedures to in-court identifications at trial.
Defendant next contends that "the sentencing court's truncated, perfunctory
When determining whether to impose concurrent or consecutive sentences for multiple offenses, the court should consider the following criteria:
A trial court must state its reasons for imposing consecutive sentences. When it fails to do so, "ordinarily a remand should be required for resentencing."
The sentencing transcript reflects some degree of confusion as to the sentences to be imposed on the three weapons offenses: count five, unlawful possession of a weapon, a handgun, count six, possession of a weapon for an unlawful purpose, and count seven, unlawful possession of a weapon, an assault firearm. When the court initially addressed the issue of merger of the weapons offenses, it stated its belief that count five, unlawful possession of a weapon, a handgun, should merge into count six, possession of a firearm for an unlawful purpose. That statement was inaccurate.
Notwithstanding its comments, the court initially sentenced defendant on count five to a five-year custodial term that "shall run concurrent with count one." After further discussion, the court stated that defendant's sentence on count five "shall be consecutive to count one."
Lastly, the court imposed a five-year custodial term with two and one-half years of parole ineligibility on count seven, to run consecutive with count one.
In explaining its sentencing decision "[w]ith respect to the counts that the [c]ourt is running consecutively," the court explained that "clearly the reasoning for the criteria in general in
The court then explained that "[p]ossession of a weapon is a separate and distinct crime and there would be no free crimes. The possession of the weapon was a crime in and of itself and the possession of the weapon — it's independent of each other and the attempted murder is a crime of violence."
Lastly, the court explained that the prosecutor "hit the nail on the head" when commenting that the "legislature has decided no person should possess an assault firearm. There is no permit for it and it's, per se, a violation of the law." The court then commented that "[t]he crimes and their objectives are independent of each other," though it did not explain which crimes and which objectives it was talking about.
We agree that the court's comments inadequately explained its reasons for imposing consecutive sentences on counts five and seven. The trial record demonstrates that both "possession offenses were based on defendant's possession of the same gun." The two crimes were not predominantly independent of each other, did not involve separate acts, and were not committed at different times or separate places.
Because the court did not adequately explain its reasons for running the sentence on count seven consecutive to the sentence on count five, we remand for the court to reconsider the sentence on count seven only; and, to provide an adequate explanation, including a discussion of the
In his pro se brief, defendant alleges the prosecutor committed misconduct by eliciting testimony the trial court had ruled inadmissible. Defendant's argument is without sufficient merit to warrant discussion in a written opinion.
Accordingly, we affirm defendant's convictions in their entirety, and affirm his sentence on each count with the sole exception of count seven, which we remand for reconsideration and, if necessary, an adequate explanation of why it should run consecutive to the sentences imposed on counts one and five.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.