State Of New Jersey v. Howard Jones

On August 26, 2009, defendant was charged with third-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4, and

fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).

Those charges focused on events that took place on the morning

of March 24, 2009, involving C.W., a fourteen-year-old girl.

The following facts are gleaned from the evidence presented at

trial.

A. The Incident

According to C.W.’s testimony, while walking to school in

Trenton and approaching a convenience store, she noticed an

adult man who appeared to be following another girl. C.W. said

that the man caught her attention because, although he was

walking toward her, “[w]hen he saw [her,] he turned around and

started walking the other way.” She described the man by what

he wore: a blue-and-white-checkered jacket, black pants, and a

yellow ski mask.

C.W. briefly entered the convenience store to make a

purchase and then continued walking on the same street on which

she had been travelling. C.W. testified that she was further

along that street when she heard “somebody . . . ma[k]e a little

whisper sound,” sounding like “Pssst.” She turned toward the

direction of the sound and “saw [a] man standing there with his

penis out.” C.W. answered affirmatively to the following two

questions asked by the prosecutor: (1) “Now, when you said he

was playing with it, was he moving his hand on his penis?” and

(2) “Was he looking at you?” She described the man as wearing a

“[b]lue-and-white plaid jacket” and a yellow ski mask, due to

which she was unable to see his face. C.W. took flight, running

toward her school, and quickly encountered Leonard Wimbush

putting a child into a car. She testified that she informed

Wimbush that “some man flashed [her].”

Wimbush also testified at trial about his encounter with

C.W. and the events that ensued. He stated that on the morning

of March 24, 2009, he was putting his son into a family member’s



4

car when a visibly distressed C.W. approached him. Wimbush

testified that when he looked in the direction toward which C.W.

had pointed, he saw bushes moving and a man emerge from the

bushes wearing “an old work lumber jacket, blue and gray and

white,” with jeans, blue or black in color. According to

Wimbush, the man “had sort of a hood on, but it wasn’t like a

masking hood. It was just like trying to cover his face.”

Wimbush described the hood as blue with “something orange that

stuck out [from it].”

According to Wimbush, he attempted to ask the man what was

going on, but the man ran around the back of an apartment

building. Wimbush stated that he followed the man, making eye

contact with him “for a good three to five seconds” while

nothing obstructed the man’s face. After the man jumped a

wooden fence, Wimbush was unable to follow him, so, according to

Wimbush’s testimony, he returned to the front of his apartment

building, instructed a crossing guard to call the police,

retrieved a pair of sneakers and cell phone from his apartment,

and returned outside to await the arrival of the police.

Officer Olschewski arrived first; he also testified at trial.

According to Olschewski’s testimony, Wimbush told him about

the girl who, in her distress, had approached Wimbush and stated

that a man had exposed himself to her. Olschewski testified

that Wimbush had described the man as a “black male,



5

approximately in his 40s. He was wearing black pants, [and] a

black coat that was plaid with . . . gray stripes in it.” A

second responding policeman, Officer Cruz, also testified at

trial. According to Cruz’s testimony, he was given a

description of the suspect as wearing “a yellow ski mask, blue

and-white plaid jacket[,] and dark jeans.”

Cruz testified that he began searching the area near where

the incident reportedly took place but soon received a call to

report to Joyce Kilmer Elementary School to investigate another

complaint involving an incident of a sexual nature. That turned

out to be the same matter involving C.W., who had arrived at her

school and had informed school personnel of the incident.

In the interim, Officer Olschewski and Wimbush were

searching for the suspect in Olschewski’s patrol car, according

to the officer’s testimony. Olschewski testified that near an

abandoned railroad track bed that he knew many “people use . . .

as a shortcut to walk down the road,” he spotted an individual

in dark clothing about 200 yards away. According to Wimbush’s

testimony, the man they saw was wearing a jacket like the one

Wimbush had described earlier, but he was “at least a good

football field length away.” The individual saw the patrol

vehicle and began walking farther away, in a direction toward

Oakland Street. Olschewski drove to 343 Oakland Street and

parked while Wimbush ran ahead in search of the suspect.



6

Passing between houses located at 343 and 345 Oakland Street and

heading toward the railroad track bed, Wimbush saw a man, later

identified as defendant, handling a trash can. He was not

wearing the jacket Wimbush had observed earlier. Wimbush

testified that, at the time, he believed the person merely to be

a resident taking out the trash, so he kept searching.

According to Olschewski’s testimony, shortly thereafter he

came upon the same individual carrying a yellow recycling can

and wearing a gray sweatshirt with lettering. The officer asked

the man (later identified as defendant) if he had seen anyone

suspicious in the area, to which the man responded: “The

gentleman who was exposing himself is on the track bed.”

Because Olschewski had not mentioned that he was looking for an

individual who had “exposed himself,” Olschewski became

interested in the man.

Olschewski testified that he asked the man for his name and

identification. After first indicating that his identification

was inside a house to which he made a passing gesture,

Olschewski told the man to obtain his identifying information

because he had become a witness. Stating that the front door

was locked, the man started to walk toward the back of the

house, dropped the recycling can, and ran toward the railroad

track bed, away from the officer. Olschewski testified that he

called into dispatch that he was in foot pursuit of a suspect



7

and began yelling for defendant to stop; his shouts were loud

enough for Wimbush to hear. Wimbush testified that he saw

defendant running towards him, and Wimbush tackled him. Officer

Olschewski placed defendant in handcuffs and arrested him. He

then read defendant his Miranda1 rights.

According to the evidence at trial, after other officers

arrived at the scene, Olschewski searched the area for the

jacket, and bandana or ski mask, that the suspect had been

described as wearing. He testified that he discovered a coat

that fit the description he had been given “[a]t the rear of 343

Oakland Street, next to the other recycling cans.” At trial,

Officer Olschewski identified the jacket that he had found.

Also, at trial, both C.W. and Wimbush identified the jacket

found as the one the suspect had been wearing. The bandana, or

ski mask, that the perpetrator allegedly was wearing at the time

of the incident was not found.

As noted earlier, C.W. testified that she had continued on

her way to school and, on arrival, told a school security guard

what happened. The security guard called the police and,

eventually, C.W. was retrieved from class to speak with Officer

Cruz, to whom she relayed her experience of encountering a man

who had exposed himself to her while on her walk to school. By

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).



8

that point, Olschewski had arrested defendant and, via police

radio, had informed Officer Cruz that he had a suspect in

custody whom he was transporting to the school.

B. The Showup

At the school, defendant was required to get out of the

police vehicle and to stand between an officer and Wimbush so

C.W. could view him through the glass entryway doors to the

school. During C.W.’s direct testimony she described how she

made her identification.

[Prosecutor:] Now, you said they showed you the man and he was outside; is that right?

[C.W.:] Yes.

[Prosecutor:] Okay. What was he wearing, do you remember?

[C.W.:] He just had on a black shirt. At first I didn’t recognize him, then they put the jacket back on and I realized it was him. [Prosecutor:] Okay. So you recognized the jacket; is that correct?

[C.W.:] Yes.

On cross-examination, C.W. acknowledged that prior to the

showup, the police told her that they had caught the man that

she had encountered on her way to school. She also testified

that she never viewed a lineup, that she was never given

pictures of other individuals, and that the only person they



9

ever showed her was defendant. Her cross-examination also

revealed the following:

[Defense Counsel:] You testified he was wearing a ski mask; is that correct?

[C.W.:] Yes.

[Defense Counsel:] So his face was covered?

[C.W.:] Yes.

[Defense Counsel:] So you wasn’t sure what he looked like as far as his face, correct?

[C.W.:] Yes.

[Defense Counsel:] All right. Did they show you a ski mask?

[C.W.:] No.

[Defense Counsel:] So, when you say you recognized [defendant], you really didn’t recognize [defendant], you recognized the jacket; is that correct?

[C.W.:] Yes.

Contrary to C.W.’s testimony, Officer Olschewski testified

that he placed the jacket on defendant prior to arriving at the

school. He said that “prior to getting to the school, I did put

the coat, that was recovered at the rear of the scene [near

where defendant was arrested], onto the arrestee, and I put the

cuffs back on him.” In his testimony, Olschewski informed the

jury that he stood near defendant during the showup

identification and that, “not even a short time later, [he] was

advised that the victim had identified the defendant as the



10

party who had exposed himself to her.” Wimbush’s testimony

confirmed that he too stood near defendant during the showup

identification.

According to Officer Cruz’s testimony, defendant “was

wearing a plaid jacket and dark pants” when C.W. identified him;

Cruz identified defendant in court as the man that C.W.

“identified” at the school. Thus, although C.W. testified that

she could not identify the man brought to her for the showup and

that she could identify only the jacket once it was on him, both

Olschewski and Cruz testified that she, the victim, “identified”

defendant. Indeed, the trial court included an identification

charge when instructing the jury.

C. Trial Motions

Following the close of the State’s case, the defense moved

to strike C.W.’s identification from the record, arguing that it

was “tainted.” In support of that argument, defense counsel

noted that C.W. testified that she did not see defendant’s face,

that she recognized defendant only once the jacket was placed on

him, that the officers never showed C.W. any other suspects, and

that Wimbush and the officer were standing next to defendant

when he was identified. Defense counsel asserted that had he

known all of those facts in advance of C.W.’s testimony, he

would have moved for the evidence’s exclusion.



11

In denying the motion, the court noted that, although one

on-one showup identifications are inherently suggestive, C.W.’s

testimony was reliable because it was corroborated by Wimbush,

who identified defendant and who provided a description of the

suspect’s physical appearance that was essentially the same as

the one provided by C.W. Specifically, the court stated:

Now with regard to the motion to strike . . . the victim[’s] . . . description of the defendant, at least as she testified to it in court, based on [United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)] and the taint caused when the police had the defendant put on the jacket that had been identified by her at the time she viewed him at the school, I would note that one-onone showup[] [identifications] are inherently suggestive.

. . . .

Here, there was a showup [identification] when Officer Olschewski brought the defendant to the school where the victim . . . was. She identified the jacket which the defendant was made to wear by the officer, and I have placed on the record her testimony. I’ll just review it quickly. She said the jacket -- she observed the jacket the man had on, that was how she was able to make her identification. She remembered the man wearing the jacket. She testified she did not see his face, nor did she recognize it when first shown. Now, that’s how she identified the defendant, as the man in the jacket. She did not identify him in court, as I pointed out. She testified to what occurred on [the date of the incident], that was her basis for identifying the man wearing the jacket.



12

The court analogized the case to Stovall v. Denno, 388 U.S. 293,

87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), in which the police

took a defendant to the hospital room where a victim was being

treated and conducted a showup identification. In finding that

case analogous, the trial court noted:

Here, only [the victim] could identify the defendant as having exposed himself to her. I note that the school was nearby where this occurred. And . . . if it wasn’t this defendant, then the flasher, the person who was exposing himself, was still on the loose and probably nearby.

I find that this is not a due-process violation. The procedure here occurred very soon after the incident. And I note that Mr. Wimbush also testified that he had seen a man [wearing] a distinct pattern, a plaid lumber jacket in the bushes. So I find this is not a due-process violation that would result in suppression or striking [the victim’s] identification from the trial record or her testimony in that regard.

Defense counsel persisted and requested a clarification of

the court’s ruling:

[Defense Counsel]: Thank you, your Honor. Your Honor, I want to be also asking for clarification on your ruling, because what I was arguing as far as the identification, what was wrong with the identification, was not that they brought Mr. Jones to the school but what they did when they brought him to the school as far as placing evidence upon him.

THE COURT: No, your basis was that they brought him to the school --

[Defense Counsel]: And changed his appearance.



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THE COURT: -- and made him wear the jacket.

[Defense Counsel]: Correct.

THE COURT: And that he was brought to the school by the police.

[Defense Counsel]: Correct. But the main emphasis of my argument is them placing the jacket upon him. Because you have a witness who didn’t see his face, who couldn’t identify him, and then you place evidence from the charge, something that at least looks like evidence, if it wasn’t from the original perpetrator or not, but it’s the same jacket or similar, either way, you’re placing that upon my client to look more -- in other words, you’re making him fit the description as opposed to him fitting it just by being there.

THE COURT: No, I understand your argument. That is part of the totality of the considerations.

[Defense Counsel]: Okay.

THE COURT: At least the totality of factors I took into account in my ruling. I think, though, what I am saying also to you, I’m denying that motion that you made.

The only additional point of concern in this appeal is that

after the parties rested, an issue arose as to the court’s

obligation to charge lewdness as a lesser-included offense of

fourth-degree criminal sexual contact based on C.W.’s testimony

that the man she had seen in the bushes had “flashed” her.

After discussion in which the defense argued against the charge

being given and the State reviewed law that was suggestive of an

obligation to provide the charge, the trial court determined not



14

to charge lewdness as a lesser-included offense. After giving

the issue thoughtful attention, the court concluded that,

although the definition of a “lewd” act includes similar

language to that of fourth-degree criminal sexual contact, the

language regarding knowledge contained in “lewdness” as a

disorderly persons offense differed significantly from that of

fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); that

difference, according to the court, meant that the disorderly

persons offense was not a lesser-included offense of fourth

degree criminal sexual contact.

Defendant was convicted on both counts of the indictment

and was sentenced to a five-year term for endangering the

welfare of a child, with a two-year period of parole

ineligibility, and a concurrent eighteen-month term for fourth

degree criminal sexual contact. The court imposed appropriate

fines and fees.

On appeal, defendant asserted that “[b]y placing the

incriminating jacket on defendant after C.W. failed to identify

defendant without the jacket, the police violated defendant’s

[due process] right to be free from suggestive police

identification procedures that create a very substantial

likelihood of irreparable misidentification.” Defendant also

claimed on appeal that the trial court committed reversible

error in failing to charge lewdness as a lesser-included offense



15

of both counts one and two, endangering the welfare of a child

and criminal sexual contact, and that his sentence was

excessive.

The Appellate Division affirmed the conviction and

sentence. As to the first issue, the panel agreed that the

showup procedure used here was suggestive, but found it to be

reliable nonetheless and thus the testimony was properly

admitted. In so concluding, the panel pointed to the following

facts:

1) the procedure occurred “very soon” after the incident; (2) the victim and Wimbush gave matching descriptions of defendant’s clothing before the show-up; (3) without being prompted, defendant told Officer Olschewski that “the gentleman who was exposing himself is on the track bed”; (4) after Olschewski told defendant that he was a witness, defendant dropped the yellow can and started running away towards the track bed; (5) Olschewski searched the surrounding area and found a blue-and-white jacket by the recycling can behind the house on Oakland Street; (6) Cruz testified that defendant was the man the victim identified at the school; (7) Wimbush testified that defendant was the man he had seen jump out of the bushes; and (8) the victim and Wimbush testified that the jacket Olschewski found was the one they had seen on defendant.

The panel dispensed with the lesser-included-offense

argument on the basis of the doctrine of invited error and held

that defendant’s sentence was not excessive.



16

Defendant petitioned for certification on the admissibility

of C.W.’s identification and on whether the disorderly persons

offense of lewdness constituted a lesser-included charge on

which the jury should have been instructed. We granted the

petition. State v. Jones, 218 N.J. 531 (2014). We also granted

amicus curiae status to the American Civil Liberties Union of

New Jersey (ACLU-NJ).

II.

Defendant’s arguments track those he advanced to the trial

court and Appellate Division. He contends that the showup was

suggestive and that C.W.’s identification testimony should not

have been admitted. His argument focuses, in particular, on the

crucial role that putting the jacket on defendant played in

C.W.’s identification. Defendant argues that it was due only to

the jacket that C.W. was able to “realize” it was defendant; she

otherwise testified that she never saw his face and admitted

that she was unable to identify him at trial. Moreover,

defendant claims that there was no independent verification of

C.W.’s identification.

Both defendant and the ACLU-NJ stress the persuasiveness of

out-of-state jurisprudence that holds that the reliability of a

suggestive identification procedure cannot be established by

extrinsic evidence of guilt. They rely on the Second Circuit

Court of Appeals’ decision in Raheem v. Kelly, 257 F.3d 122 (2d



17

Cir. 2001), because it involved reversal of a conviction where

an identification was aided by the fact that the defendant was

required to appear in a lineup as the only person wearing a

distinctive piece of clothing, and the clothing played a

significant role in the identifications made from that lineup.

Defendant in this case urges this Court (1) to conclude that due

process considerations require that a reliability assessment in

a suggestive identification process remain distinct from a

harmless error assessment based on extrinsic evidence of guilt;

and (2) to find that reliability is absent here.

Further, defendant reasserts his appellate argument on the

lesser-included status of the disorderly persons offense of

lewdness to the charges filed against defendant in this matter.

Regardless of whether defendant wanted the charge at the time of

trial, defendant maintains that the trial court’s failure to

give a charge on the lesser-included offense constituted

reversible error. Defendant contends that disorderly persons

lewdness should have been charged as a lesser-included offense

of both criminal sexual contact and endangering the welfare of a

child.

Before this Court, the State primarily argues that

principles of eyewitness identification are not implicated

because C.W. did not identify defendant, she merely identified

the jacket. The State cites several decisions addressing



18

standards applicable to identifications of inanimate objects,

which the State argues were not violated here. The State

maintains that inferences that were drawn from C.W.’s

identification of physical evidence should not necessitate a

reversal. Rather, the State contends that C.W.’s testimony was

admissible and subject to assessment in the context of the

totality of the evidence, including the identification testimony

of Wimbush and Officer Olschewski, in which they recounted

defendant’s suspicious behavior when encountered by police.

Further, the State distinguishes the lineup in Raheem from the

showup identification procedure in this matter.

As for defendant’s lesser-included offense argument, the

State asserts that lewdness is not a lesser-included offense of

either criminal sexual contact under N.J.S.A. 2C:14-3(b) or

child endangering under N.J.S.A. 2C:24-4 because neither include

the element of acting “for the purpose of arousing or gratifying

the sexual desire of the actor or of any other person” that is

contained in N.J.S.A. 2C:14-4(c), lewdness.

As amicus curiae, the ACLU-NJ focuses on the admissibility

of C.W.’s identification testimony. The ACLU-NJ emphasizes

three points: C.W. was told that officers had caught the

suspect; the showup identification was inherently suggestive;

and C.W.’s identification, such as it was, came only after

officers placed on defendant the jacket that the officers had



19

found, rendering this an identification based on distinctive

clothing. The ACLU-NJ argues that, when an identification

arises from an impermissibly suggestive identification

procedure, due process can be satisfied, and the admission of

the identification evidence can be permitted, only if the

identification satisfies Manson’s reliability criteria. And,

importantly, extrinsic evidence of guilt may not be considered

in that due process inquiry. Otherwise, the ACLU-NJ contends,

consideration of extrinsic corroborating evidence of guilt

“confuses the due process inquiry” with the test for harmless

error (citing Raheem, supra, 257 F.3d at 140). The ACLU-NJ

urges that we recognize, as other courts have, that the Manson

test for reliability must rest on the indicia outlined in that

opinion: opportunity to view, degree of attention, accuracy of

prior description, level of certainty, and time between crime

and identification. Not one of those indicia of reliability

provided a basis for admitting C.W.’s testimony; therefore, the

ACLU-NJ urges that we reverse defendant’s conviction based on

the proceedings that occurred here.

III.

A question of law is before us. We must determine whether

constitutional due process requirements should have compelled

the exclusion of an out-of-court identification from defendant’s

criminal trial. We review de novo that question of law.



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Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999).

If a due process violation is found, a new trial will be

required unless we can determine that the constitutional

violation was harmless beyond a reasonable doubt. See State v.

Madison, 109 N.J. 223, 245-46 (1988).

The admissibility of a pretrial identification in New

Jersey follows the principles first articulated in Manson,

supra, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140. See

Madison, supra, 109 N.J. at 239-40.2 In Manson, supra, the

Supreme Court reviewed an identification made by an undercover

narcotics officer of a previously unknown person from whom the

officer had purchased narcotics. 432 U.S. at 100-01, 97 S. Ct.

at 2245-46, 53 L. Ed. 2d at 145-46. The Court’s opinion in

Manson acknowledged the suggestiveness of displaying a single

photograph to an identifying individual but held that the

“corrupting effect” of the suggestive procedure did not outweigh

the ability of the officer to make a reliable, accurate

identification. Id. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at

155. Because the Court did not find “under all the

circumstances” that there was “a very substantial likelihood of

2 State v. Henderson, 208 N.J. 208 (2011), revised the guidelines for evaluating out-of-court identifications; however, the decision was made prospective in application. Id. at 302. Because the events underlying this case arose before the Henderson decision was handed down, the guidelines established in Manson/Madison are applicable to this matter.



21

irreparable misidentification,” the Court held that the evidence

should be weighed by the jury. Ibid. (internal quotation marks

and citations omitted).

In Madison, supra, we summarized the Manson framework to be

used in our criminal trials:

[A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a “very substantial likelihood of irreparable misidentification.” In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.

[109 N.J. at 232 (citations omitted).]

A finding of impermissive suggestibility requires an

examination of the totality of the circumstances of the

identification to determine whether exclusion is appropriate.

Id. at 234. “‘[E]xclusion of the evidence [is required] where

all the circumstances lead forcefully to the conclusion that the

identification was not actually that of the eyewitness, but was

imposed upon him so that a substantial likelihood of irreparable

misidentification can be said to exist.’” Ibid. (quoting State

v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937,

93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973)).



22

One-on-one showups are inherently suggestive “because the

victim can only choose from one person, and, generally, that

person is in police custody.” State v. Herrera, 187 N.J. 493,

504 (2006). That is not to say that, “standing alone,” each and

every showup warrants proceeding to the second step of the

examination. Ibid. Our law has permitted “on or near-the-scene

identifications because they are likely to be accurate, taking

place . . . before memory has faded and because they facilitate

and enhance fast and effective police action and they tend to

avoid or minimize inconvenience and embarrassment to the

innocent.” Ibid. (internal quotation marks and alterations

omitted).

Other factors can bear on the suggestiveness of a showup

identification procedure, such as when the police signal to the

identifying witness that they have apprehended the culprit. See

id. at 506. In Herrera, statements by police that “we found

your car, we located your car with somebody in it, we want you

to come with us to identify the person[,]” “in combination with

the suggestiveness inherent in a showup” rendered the police

procedure impermissibly suggestive. Ibid. Decisions of sister

jurisdictions also recognize that the suggestiveness of such

signals by police officials may depend on whether it is apparent

to the witness that the police think they have caught the

perpetrator. Compare United States v. McGrath, 89 F. Supp. 2d



23

569, 581 (E.D. Pa. 2000) (finding that police statements merely

informed witness that police apprehended suspect), with State v.

Williams, 545 P.2d 938, 941 (Ariz. 1976) (finding identification

suggestive where “suspect was viewed in the stationhouse,

manacled, and the victim was told that she was to observe a man

who had been apprehended driving her car”), and State v. Davis,

767 A.2d 137, 142 (Conn. App. Ct. 2001) (finding identification

unnecessarily suggestive where officer told rape victim, “[w]e

got him, we got him. . . . We had two boys. You got to tell

which one, who it is”).

Numerous considerations can implicate suggestiveness. The

model charge on in-court and out-of-court identifications

contains an array of considerations that bear on suggestiveness

and are relevant for jury consideration when identifications are

determined to be admissible. See Model Jury Charges (Criminal),

“Identification: In-Court and Out-of-Court Identifications”

(2007). However, before the identification evidence may be put

before the jury, the court must determine whether the

identification is sufficiently reliable to avoid the substantial

likelihood of misidentification. “[R]eliability is the linchpin

in determining the admissibility of identification testimony.”

Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d

at 154.



24

As set forth in Manson, the following factors are relevant:

“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.” Ibid. Importantly, in Manson,

the majority indicated that, when evaluating the reliability of

a suggestive identification procedure, courts should not

consider any extrinsic evidence of guilt. Id. at 116, 97 S. Ct.

at 2254, 53 L. Ed. 2d at 155. Justice Stevens underscored that

in his concurrence in Manson, stating that, “in evaluating the

admissibility of particular identification testimony it is

sometimes difficult to put other evidence of guilt entirely to

one side. . . . [But here] the Court carefully avoids this

pitfall and correctly relies only on appropriate indicia of the

reliability of the identification itself.” Id. at 118, 97 S.

Ct. at 2255, 53 L. Ed. 2d at 156 (Stevens, J., concurring).

Both federal and state courts in other jurisdictions have

interpreted Manson to stand for the proposition that extrinsic

evidence of guilt should play no part when courts analyze the

independent reliability of an inherently suggestive

identification procedure. See, e.g., United States v. Greene,

704 F.3d 298, 310 (4th Cir. 2013) (“[E]vidence extrinsic to an

identification cannot be considered in evaluating the



25

reliability of the identification.” (emphasis omitted)); Raheem,

supra, 257 F.3d at 141 (concluding “that evidence of record that

is unrelated to an identification but that is supportive of a

finding of guilt is properly considered in harmless-error

analysis, not in the due process inquiry of whether the

identification has reliability”); United States v. Rogers, 126

F.3d 655, 659 (5th Cir. 1997) (“[A]dmissibility rests on the

reliability of the identification judged solely by the

circumstances indicating whether it was likely to be a well

grounded identification, not whether it seems likely to have

been correct in light of other available evidence.” (citation

omitted)); Graham v. Solem, 728 F.2d 1533, 1546 (8th Cir. 1984)

(“[O]ther evidence of guilt does not play a formal role in the

analysis” of admissibility of eyewitness identification); see

also Wise v. Commonwealth, 367 S.E.2d 197, 201 (Va. Ct. App.

1988) (“[O]ther evidence of a defendant’s guilt, not dealing

with the individual eyewitness’s personal observation and

memory, plays no part in the analysis of the reliability of that

eyewitness’s identification.”); Richards v. People of the Virgin

Islands, 53 V.I. 379, 388 n.4 (V.I. 2010) (“Consistent with the

majority of jurisdictions, it is evident that corroborating

evidence of guilt would be relevant only to a harmless error

analysis.”). We conclude that those cases affirm what was made

abundantly clear through Justice Stevens’s concurring opinion in



26

Manson: that extrinsic evidence of guilt plays no role in

assessing whether a suggestive eyewitness identification was

nonetheless inherently reliable. We expressly hold that to be

the standard that must apply in this matter.

With that as our backdrop, we turn to the disputed

identification evidence admitted in this appeal.

IV.

A.

We begin first with C.W.’s identification of defendant.

She was careful in her testimony on direct and cross-examination

to answer that she did not see defendant’s face, that she could

not identify defendant at trial, and that it was only when the

jacket was placed on defendant at the showup that she “realized”

it was him. Officer Olschewski went further in his testimony,

stating that the “victim . . . identified the defendant as the

party who had exposed himself to her.” Similarly, Wimbush

testified that at the showup, “she (C.W.) pointed out the

suspect.” And, Officer Cruz’s testimony went furthest in

characterizing what C.W. did as an identification of defendant.

He testified that “[C.W.] identified him, through the school

glass doors, as being the suspect.” When asked how that

identification was accomplished, Cruz responded, “[s]he pointed

at him as being the one that she saw in the bushes.”



27

This case thus was presented as an identification case, and

in fact an identification charge was given by the court.

Accordingly, we must perform a Manson/Madison analysis. As for

the first inquiry into whether this showup identification

procedure was suggestive, certainly it was. First, Herrera

noted the inherent suggestibility of showups. Second, here C.W.

was told that the police had caught the suspect and were

bringing him to where she could view him. Third, according to

C.W., she “realized” the suspect in the showup was the person

from the bushes whom she had encountered on her way to school

only when the jacket, which she believed to be distinctive, was

placed on him. Thus, this showup identification procedure was

made even more suggestive by the use of distinctive clothing,

even though defendant was not wearing the clothing when detained

and arrested by the police. That combination of features

renders this showup impermissibly suggestive, requiring

examination under the next step of the Manson/Madison test.

Although not dispositive, it bears noting that the

suggestiveness of the procedure was enhanced by the fact that

defendant was presented to C.W. by having him stand between a

police officer and the man to whom she had turned in her

distress -– her rescuer, Mr. Wimbush.

Having determined that the showup was impermissibly

suggestive, the reliability of C.W.’s identification, for due



28

process purposes, requires examination. Utilizing the indicia

of reliability set forth in Manson, it is apparent from this

record that this identification falls short of the mark. First,

C.W. had no opportunity to view defendant’s face at the time of

the crime because, according to her, he was wearing a ski mask.

Second, there is no indication that C.W. paid a great deal of

attention to the man’s features at the time of the offense

because she took off running as soon as she saw that his penis

was exposed. Third, C.W.’s description was detailed only as to

defendant’s clothing and, according to C.W., no one else could

have possibly been wearing a plaid lumberjack work jacket of the

type she recalled. Fourth, C.W. testified that when the suspect

–- defendant -- was initially presented for her viewing outside

her school, she did not recognize him, undermining the certainty

of her identification of defendant. Finally, on the last

criterion, the time between the incident and the showup was

approximately 1.5 hours in duration, an amount of time that does

not undermine reliability.

On balance, that analysis does not support the reliability

necessary to permit the admission of an out-of-court

identification of defendant. That is so particularly since C.W.

stated that she never saw defendant’s face and she never

identified him. Rather, C.W. only identified a jacket that

defendant was not wearing when he was arrested and which he was



29

made to wear during the showup so C.W. could view him in a piece

of clothing that resembled her description of the jacket worn by

the person she had seen earlier in the day. That is

insufficient to support a reliable identification by C.W. of

defendant the person. Officers Olschewski’s and Cruz’s

testimony, as well as Wimbush’s, expanded on what actually

transpired at the showup, calling it an identification by C.W.

of defendant. There was insufficient reliability to support any

such identification by C.W. of defendant.

In the Appellate Division’s consideration of the

reliability of C.W.’s identification testimony, the panel

considered circumstantial evidence corroborating defendant’s

guilt as evidence of the reliability of the identification.

Specifically, the Appellate Division relied on the following

evidence in the record: (1) defendant’s statement that “the

gentleman who was exposing himself is on the track bed”; (2)

defendant’s retreat after the officer told him he was a witness;

(3) the discovery of the blue-and-white jacket by the recycling

bins where defendant had been when first encountered by Wimbush

and Olschewski; (4) officer testimony that C.W. identified

defendant at the school; (5) Wimbush’s identification of

defendant as the person he chased; and (6) C.W.’s and Wimbush’s

identification of the jacket. Those factors constitute

circumstantial evidence of defendant’s guilt, but they do not



30

indicate that C.W.’s identification was reliable. The

reliability assessment must remain fixed on the indicia of

reliability identified in Manson, which focus on the accuracy

and trustworthiness of the witness’s memory and perception, and

not drift into consideration of circumstantial evidence of guilt

such as would be pertinent in a harmless error analysis.

Allowing the latter considerations to wander into the analysis

risks engendering a violation of the Due Process Clause of the

United States Constitution and Article I, Paragraph 1 of the New

Jersey Constitution.

We reject the State’s argument that no eyewitness

identification occurred and that, therefore, a due process issue

does not exist. The State could have presented this case based

on the victim’s identification of a jacket, but the prosecution

went further. Trial testimony from C.W., Wimbush, and Officers

Olschewski and Cruz informed the jury that C.W. made an

identification of defendant at the school. We hold that, to the

extent that C.W. purported to “identify” defendant, her

identification of defendant the person was unreliable and

created the risk of a substantial likelihood of

misidentification in the way it was presented to the jury. We

further hold that the testimony of Olschewski, Cruz, and Wimbush

embellished on an equivocation in what C.W. was attempting to

convey in her testimony regarding her identification of



31

defendant, as opposed to an identification of the clothing he

was made to wear at the showup. Their testimony added to the

risk of a substantial likelihood of misidentification that

occurred in defendant’s trial.

B.

Alternatively, the State argues that C.W.’s testimony is

admissible because she was simply identifying the blue-and-white

plaid jacket in her testimony, not the defendant. The State

maintains that, because identification of an inanimate object

does not raise the same due process concerns as identification

of a person, C.W.’s testimony was properly admitted at trial.

Considerable authority holds that “due process concerns

implicated in the pretrial identification of a person are not

present in the identification of physical evidence.” State v.

Delgado, 188 N.J. 48, 67 (2006); see also State v. Roscoe, 700

P.2d 1312, 1324 (Ariz. 1984) (“By the great weight of authority,

the right to pretrial identification procedures is inapplicable

to items of physical evidence.”). But that generalization

scrapes only the surface of an analysis involving identification

of inanimate objects. There are a number of cases that discuss

identifications of inanimate objects, such as automobiles3 and

3 See Johnson v. Sublett, 63 F.3d 926 (9th Cir.), cert. denied, 516 U.S. 1017, 116 S. Ct. 582, 133 L. Ed. 2d 504 (1995); Inge v. Procunier, 758 F.2d 1010 (4th Cir.), cert. denied sub nom., Inge v. Sielaff, 474 U.S. 833, 106 S. Ct. 104, 88 L. Ed. 2d 85



32

weapons4, and find that the identifications that took place were

permissible and did not implicate due process. Identifying a

car or a weapon is not equivalent to identifying an article of

clothing that has been placed on a suspect during a showup, as

happened in the present case. This is not a situation in which

the officers merely showed C.W. the jacket they found in the

vicinity near where defendant was located. That would have been

a more analogous case to precedent approving the admission of

testimony addressing the identification of an inanimate object

apart from a person.

With respect to identifications at showup or lineup

proceedings, courts have found that no due process concerns

exist when (1) a witness or victim reported a particular or

distinctive article of clothing worn by a suspect, and (2) a

suspect is wearing that distinctive clothing when they are

arrested by the police and the suspect is still wearing that

distinctive clothing when presented to the witness or victim at

(1985); Buchanan v. State, 561 P.2d 1197 (Alaska 1977); Roscoe, supra, 700 P.2d 1312; People v. Coston, 576 P.2d 182 (Colo. App. 1977), aff’d, 633 P.2d 470 (Colo. 1981); State v. Bruns, 304 N.W.2d 217 (Iowa 1981); Rackley v. Commonwealth, 674 S.W.2d 512 (Ky. 1984); Commonwealth v. Jones, 514 N.E.2d 1337 (Mass. App. Ct. 1987); People v. Miller, 535 N.W.2d 518 (Mich. Ct. App. 1995); Hughes v. State, 735 So. 2d 238 (Miss. 1999); State v. Cyr, 453 A.2d 1315 (N.H. 1982); Delgado, supra, 188 N.J. 48.

4 See Klase v. State, 346 A.2d 160 (Del. 1975); Dee v. State, 545 S.E.2d 902 (Ga. 2001); Brooks v. State, 560 N.E.2d 49 (Ind. 1990).



33

a lineup or showup proceeding. See Johnson v. Ross, 955 F.2d

178, 179-80 (2d Cir. 1982) (finding no due process violation

where victim identified hat and coat worn by robbery perpetrator

who was wearing same hat and coat when arrested and was

identified less than one hour after robbery); Commonwealth v.

Carter, 414 A.2d 369, 370-71 (Pa. Super. Ct. 1979) (finding no

due process violation where defendant was arrested while wearing

clothing that matched description given by witnesses to recent

robbery, and was wearing same clothing during showup); State v.

Johnson, 132 P.3d 767, 767-68 (Wash. Ct. App. 2006) (finding no

due process violation where victim identified distinctive

clothing worn by three defendants, who were arrested “[a] few

minutes later” and were wearing clothing, at the time of their

arrest, that victim had described); State v. King, 639 P.2d 809,

810 (Wash. Ct. App. 1982) (same).

Here, by contrast, defendant was arrested while wearing a

gray sweatshirt. A blue-and-white plaid jacket was found near

where he had been. When defendant was brought to the school for

the showup identification, C.W. testified that she observed him

initially only in a black tee shirt. Thereafter, she said, he

was compelled to don the plaid jacket, and she “realized” that

defendant was the suspect she reported to the police as having

exposed himself to her. The intentional use of the jacket in

the showup when defendant was presented to C.W. distinguishes



34

this case from the other cases discussing identification of

inanimate objects.

The Second Circuit’s decision in Raheem, supra, 257 F.3d

122, is instructive in this matter. In that case, three men

robbed a bar, and one shot an owner of the bar during the course

of that robbery. Id. at 125. The shooter was principally

described by the witnesses as wearing a black leather coat. Id.

at 125-26. Twenty days after the robbery/murder, three of the

five witnesses to the crime viewed a police lineup. Id. at 126.

One of the men who was placed in the lineup as a filler was the

defendant. Ibid. The defendant had been arrested in connection

with a completely unrelated matter and was participating in the

lineup purely by happenstance; the police had identified another

suspect as their focus and had him in the lineup. Ibid. The

defendant was wearing a black leather coat when he was arrested

for that other offense and was brought to the police station,

and he was wearing that coat when the witnesses observed the

lineup. Ibid. Defendant was the only person in the lineup

wearing a black leather coat. Id. at 136.

The first witness to observe the lineup was unable to

identify anyone as the shooter; however, a second witness

identified defendant as the shooter, testifying at a Wade5

5 Wade, supra, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149.



35

hearing that defendant resembled the man he saw in the bar and

“[h]e had on a leather coat that [he] remembered.” Id. at 126

27 (emphasis omitted). After another witness was unable to make

an identification, id. at 126, the first witness asked to view

the lineup again, at which point he identified the defendant,

id. at 127. At the Wade hearing, the first witness testified

that he was not positive about the identification, but that “the

black leather coat really set it off for [him].” Ibid.

(emphasis omitted).

At trial, both witnesses who identified defendant at the

lineup testified, and both indicated that the black leather coat

played a significant role in their identifications of defendant

at the lineup. Id. at 130-31. On appeal, the Second Circuit

found that the lineup was inherently suggestive because the two

witnesses who identified defendant had previously given

descriptions to the police which emphasized the suspect’s black

leather coat. Id. at 135-36. Moreover, when discussing why

they identified defendant at the lineup, both witnesses

“repeatedly mentioned the impact of the coat.” Id. at 136.

Thus, the Second Circuit concluded that “the black leather coat

. . . was an integral part of the description that each [of the

two witnesses] provided to the police, and was a critical factor

in those witnesses’ selections of [defendant] from the lineup.”

Id. at 137.



36

The Second Circuit also found that the lineup procedure

lacked independent reliability. Id. at 138. The court

concluded that, given “the fact that both witnesses repeatedly

cited the coat worn by [defendant] as influential in their

selection of him, we cannot conclude that the identifications by

[the witnesses] had reliability independent of the black leather

coat.” Id. at 140. Finally, the Second Circuit concluded that

the error of admitting the eyewitness identification testimony

was not harmless, because “[t]he identification testimony of

[the witnesses] clearly bore on an essential issue, the identity

of the shooter.” Id. at 142.

We find unpersuasive the State’s argument that what

occurred at this showup was an identification of an inanimate

object. Here, C.W. was not simply identifying a jacket being

shown to her by the police because it had been found near where

defendant was located. Placing a jacket on a person after his

arrest and using that item of clothing during the eyewitness

identification procedure when a witness is having difficulty

identifying the suspect raises due process concerns.

We hold that the showup procedure in this case required

that the eyewitness identification be analyzed under the

identification principles articulated in Manson/Madison, rather

than principles governing an identification of the inanimate

object. Moreover, it was error on appellate review to consider



37

extrinsic evidence of guilt when evaluating the identification’s

reliability. We further hold that the use of the plaid jacket

in this showup rendered the showup and the identification

evidence that it generated a violation of defendant’s due

process rights, requiring a new trial. The cumulative testimony

by Olschewski, Cruz, and Wimbush that C.W. identified defendant

at the showup renders this error one that we cannot regard as

harmless beyond reasonable doubt.

V.

In view of our holding that a new trial is required, we

address the issue of the lesser-included offense to provide

assistance in the retrial of this matter.

Under N.J.S.A. 2C:14-3(b), a person is “guilty of criminal

sexual contact if he commits an act of sexual contact with [a]

victim [who is at least 13 but less than 16 years old and the

actor is at least four years older than the victim].”6 Sexual

contact is defined as:

[A]n intentional touching by the victim or actor, either directly or through clothing, of the victim’s or actor’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.

[N.J.S.A. 2C:14-1(d) (emphasis added).]

6 The bracketed language represents the substantive content of the statute’s short cross-reference to N.J.S.A. 2C:14-2(c)(4).



38

Similarly, a person commits disorderly persons lewdness if

“he does any flagrantly lewd and offensive act which he knows or

reasonably expects is likely to be observed by other

nonconsenting persons who would be affronted or alarmed.”

N.J.S.A. 2C:14-4(a). The statute defines a “lewd act” as

“exposing . . . the genitals for the purpose of arousing or

gratifying the sexual desire of the actor or of any other

person.” N.J.S.A. 2C:14-4(c).

Our reasoning in State v. Zeidell, 154 N.J. 417 (1998),

provides guidance in this matter. Zeidell stands for the

proposition that fourth-degree lewdness is a lesser-included

offense of sexual assault. Id. at 433. The defendant in

Zeidell was convicted of sexual assault under N.J.S.A 2C:14

2(b), which is defined as committing “an act of sexual contact

with a victim who is less than 13 years old and the actor is at

least four years older than the victim.” Id. at 419, 423.

There is substantial similarity in the statutory language of the

statutes involved in Zeidell and those involved in this matter.

We note first that, other than the age of the victim, the

statutory language defining this form of sexual assault is

identical to the statutory language defining criminal sexual

contact with which defendant was charged. So Zeidell is

pertinent due to the substantially identical language between

those two potentially greater offenses to the offense of



39

lewdness. Moreover, Zeidell also recognized that the only

distinction between lewdness in the fourth-degree and lewdness

as a disorderly persons offense is the identity of the victim.

Id. at 430. Because of the similarity in the language between

lewdness in the fourth-degree and lewdness as a disorderly

persons offense, and the manner of identifying the victim being

an insignificant difference in this regard, the reasoning in

Zeidell should extend to the criminal sexual contact charge

involved in this matter.

Second, Zeidell recognized that the key distinction between

lewdness and sexual assault was the difference between mere

exposure of an intimate part and the sexual touching of that

part. Id. at 430-431. During the trial, C.W. testified on

direct examination that defendant was “playing with his penis,”

but on cross-examination, C.W. stated that a man had “flashed”

her. She also told Wimbush, as he reported it, that a man had

“flashed” her. The act of “flashing” as that term is used in

general parlance can support a conviction for lewdness, but not

for criminal sexual contact. Given that ambiguity and potential

contradiction in C.W.’s testimony, a reasonable jury could find

defendant guilty of the lesser-included offense of lewdness if

it was not persuaded that defendant had touched or manipulated

his penis. The question is one for the jury to determine after

being charged on the lesser-included offense of lewdness as a



40

disorderly persons offense. On retrial, disorderly persons

lewdness as a lesser-included offense to criminal sexual contact

should be charged. We need not reach defendant’s further

argument on whether disorderly persons lewdness is a lesser

included offense of endangering the welfare of a child.

For the reasons expressed, the judgment of the Appellate

Division is reversed, defendant’s conviction is reversed, and

the matter is remanded for further proceedings consistent with

this opinion.