Case Number: 078747

Judge: PER CURIAM

Court: SUPREME COURT OF NEW JERSEY

Plaintiff's Attorney: Stephanie Davis Elson, Assistant Prosecutor

Defendant's Attorney: Frank J. Pugliese, Assistant Deputy Public Defender

Description: In this case, the State presented strong evidence that
defendant Dorian Pressley distributed cocaine. According to the
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testimony at trial, defendant sold two vials of cocaine directly
to an undercover detective on April 30, 2013. At the end of the
face-to-face exchange, defendant gave the detective his phone
number for future use and told her to store the number in her
phone under “D-O-R” -- the first three letters of his name. A
second officer observed the transaction through binoculars from
about twenty feet away.
Immediately after the sale, the undercover officer
transmitted a description of defendant to a supervisor. She
relayed that he wore a red baseball hat, a red Adidas warm-up
jacket, and khaki pants. The second officer also radioed
information about defendant’s movements.
About four blocks from where the sale took place, a third
officer stopped defendant, who matched the description. The
officer realized he knew the suspect -- as Dorian Pressley --
and let him go to protect the ongoing undercover operation.
Back at headquarters, the third officer printed a photo of
defendant.
The undercover detective also returned to headquarters.
Within one hour of the transaction, she viewed the single photo
of Dorian Pressley and said she was certain that the individual
in the picture had sold her the two vials.
Defendant was arrested months later and proceeded to trial.
During the trial, the judge conducted a Rule 104 hearing and
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found that defendant’s statements to the undercover agent during
the transaction were admissible.
The jury convicted defendant of third-degree possession of
heroin, N.J.S.A. 2C:35-10(a)(1); third-degree distribution of
cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(3); and third-degree
distribution of cocaine within 1000 feet of a school, N.J.S.A.
2C:35-7. The first charge related to defendant’s possession of
heroin at the time of his arrest. Defendant was sentenced to an
aggregate term of ten years’ imprisonment.
On appeal, defendant argued that the trial court should
have held a pretrial hearing to evaluate the reliability of the
identification, and that the prosecutor committed misconduct in
her summation. The Appellate Division affirmed defendant’s
conviction. We granted certification. 229 N.J. 609 (2017). We
also granted the Attorney General leave to appear as amicus
curiae.
I.
Defendant argues that the trial court should have granted
his request for a pretrial hearing, pursuant to United States v.
Wade, 388 U.S. 218 (1967), and State v. Henderson, 208 N.J. 208
(2011), because he made a sufficient showing that the
identification procedure used in this case was impermissibly
suggestive. He claims that the identification was essentially a
showup and that an officer unfamiliar with the investigation
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should have presented a photo array -- instead of a single
picture -- to the undercover detective.
The State and the Attorney General stress that police
officers are “trained observers and trained witnesses” whose job
requires them to remember details and faces when they conduct an
investigation. They contend that when an officer “merely
confirm[s] the identity of a suspect she was just
investigating,” a photo array is unnecessary and no Wade hearing
is required.
Counsel for both sides raise an intriguing question:
whether an identification made by a law enforcement officer
should be tested by the same standards that apply to a civilian.
See Henderson, 208 N.J. at 248-72, 287-93. Defendant claims
that “police officers are not more accurate eyewitnesses than
civilians.” For support, he relies on social science research
and cites multiple published studies. The State and the
Attorney General, in turn, submit that the risk of undue
suggestiveness is remote when a trained officer is involved.
They also rely on social science articles, but for the
proposition that “police officers are more accurate at
remembering details of a crime than” members of the public.
Collectively, counsel cite a half dozen publications for the
Court’s consideration.
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We are not aware of case law that has reviewed the social
science evidence with care. Defendant points to Manson v.
Brathwaite, 432 U.S. 98 (1977), the seminal federal case on
identification evidence. Defendant correctly observes that
Manson, in part, involved similar facts. One of the
identifications in that case related to an undercover officer
who bought narcotics from a dealer; two days later, another
officer showed the undercover agent a single photo to try to
identify the suspect. Id. at 100-01. The Supreme Court upheld
the identification but noted that, “[o]f course, it would have
been better had” the undercover officer been presented “with a
photographic array” with “a reasonable number of persons” who
looked like the suspect. Id. at 117.
Implicit in the ruling is a simple concept:
identifications by law enforcement officers should be examined
to determine if an “impermissibly suggestive” identification
procedure was used and to assess whether a defendant has proven
“a very substantial likelihood of irreparable
misidentification.” Henderson, 208 N.J. at 238 (summarizing
federal law); State v. Madison, 109 N.J. 223, 232 (1988) (same).
To be sure, however, the Supreme Court did not address the
precise question this appeal presents. Nor did this Court’s
decision in Henderson.
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In 1997, the Appellate Division in State v. Little touched
lightly on the issue when it observed that “[t]here can be no
dispute that a trained undercover police officer has heightened
awareness of the need for proper identification of persons who
engage in drug purveyance.” 296 N.J. Super. 573, 580 (App. Div.
1997). The opinion cites no sources and does not analyze any
social science evidence. The same is true for the out-of-state
decisions that the Attorney General has brought to our
attention.
Based on the record before us, we cannot determine whether
part or all of the protections outlined in Henderson should
apply to identifications made by law enforcement officers. We
encourage parties in the future to make a record before the
trial court, which can be tested at a hearing by both sides and
then assessed on appeal. See State v. Adams, 194 N.J. 186, 201
(2008) (declining to adopt new standard for admissibility of
identification evidence without full record to review); State v.
Herrera, 187 N.J. 493, 501 (2006) (same).
Even if the trial judge in this case had held a pretrial
hearing, though, it is difficult to imagine that the
identification would have been suppressed. Although showups are
inherently suggestive, “the risk of misidentification is not
heightened if a showup is conducted” within two hours of an
event. Henderson, 208 N.J. at 259. Here, the identification
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took place within an hour. In addition, the trial judge gave
the jury a full instruction on identification evidence,
consistent with Henderson and the model jury charge.
We do not find that the Rule 104 hearing held in this case
substituted for a pretrial hearing on the identification
evidence. The hearing focused on whether defendant’s statements
to the undercover officer during the course of the drug sale
could be admitted. Although there are some references to the
identification process, the hearing did not probe or assess the
relevant system and estimator variables.
Nor do we believe that this case involved a “confirmatory”
identification, which is not considered suggestive. A
confirmatory identification occurs when a witness identifies
someone he or she knows from before but cannot identify by name.
See, e.g., National Research Council, Identifying the Culprit:
Assessing Eyewitness Identification 28 (2014) (“Confirmatory
Photograph: Police will, on occasion, display a single
photograph to a witness in an effort to confirm the identity of
a perpetrator. Police typically limit this method to situations
in which the perpetrator is previously known to or acquainted
with the witness.”); Sides v. Senkowski, 281 F. Supp. 2d 649,
654 (W.D.N.Y. 2003) (“parties knew each other previously”). For
example, the person may be a neighbor or someone known only by a
street name. See Identifying the Culprit, at 22. Here, the
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undercover detective first met defendant during the drug
transaction.
II.
We briefly address defendant’s argument that the prosecutor
engaged in misconduct in her summation and deprived him of a
fair trial. Defendant first raised the argument on appeal.
Because he failed to object at trial, we review the challenged
comments for plain error. See R. 2:10-2. Under that standard,
an appellate court can reverse only if it finds that the error
was “clearly capable of producing an unjust result.” Ibid.;
State v. Cole, 229 N.J. 430, 458 (2017).
Prosecutors can sum up cases with force and vigor, and are
afforded considerable leeway so long as their comments are
“reasonably related to the scope of the evidence presented.”
State v. Timmendequas, 161 N.J. 515, 587 (1999). In carrying
out their duties, prosecutors must always have in mind that
their obligation is to do justice, not to win cases. See Berger
v. United States, 295 U.S. 78, 88 (1935).
A defendant’s allegation of prosecutorial misconduct
requires the court to assess whether the defendant was deprived
of the right to a fair trial. State v. Jackson, 211 N.J. 394,
407 (2012). To warrant reversal on appeal, the prosecutor’s
misconduct must be “clearly and unmistakably improper” and “so
egregious” that it deprived defendant of the “right to have a
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jury fairly evaluate the merits of his defense.” State v.
Wakefield, 190 N.J. 397, 437-38 (2007) (quoting State v.
Papasavvas, 163 N.J. 565, 625 (2000)). In general, when counsel
does not make a timely objection at trial, it is a sign “that
defense counsel did not believe the remarks were prejudicial”
when they were made. State v. Echols, 199 N.J. 344, 360 (2009).
During summation, defense counsel attacked the State’s
witnesses and argued that “in this case we have some [officers
who] are not honest and upstanding.” Counsel also commented on
the Attorney General’s Guidelines for identification procedures
and argued that “[t]here’s no exception in [them] for police
officer witnesses.”
In response, the prosecutor argued (a) that the “Guidelines
for the most part do address the possible misidentification when
there is a lay witness” -- which was not untrue; (b) that the
witness was “a law enforcement officer who’s trained to do what
occurred here today” -- which was also not untrue; and (c) that
the officer made a “confirmatory identification.” The last
comment misstated the law, but it does not appear that the jury
received any instruction on the meaning of the term. We do not
find that the remark was capable of producing an unjust result
-- particularly in light of the overwhelming evidence of
defendant’s guilt.

Outcome: We therefore affirm the judgment of the Appellate Division
and uphold defendant’s convictions.

Plaintiff's Experts:

Defendant's Experts:

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