STATE OF NEW JERSEY v. DORIAN PRESSLEY, a/k/a JUSTIN BELTON

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.

We therefore affirm the judgment of the Appellate Division

and uphold defendant’s convictions.