STATE OF NEW JERSEY v. MARCUS HUNT a/k/a MARCUS J. HUNT

A Bergen County grand jury charged defendant Marcus Hunt in

a six-count indictment with two counts of first-degree armed

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

April 12, 2017







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robbery, N.J.S.A. 2C:15-1 (counts one and four); two counts of

third-degree possession of a weapon, a metal wrench, for an

unlawful purpose, N.J.S.A. 2C:39-4(d) (counts two and five); and

two counts of fourth-degree unlawful possession of the metal

wrench, N.J.S.A. 39:39-5(d) (counts three and six). After

conducting an evidentiary hearing, the trial judge denied

defendant's motion to suppress two out-of-court identifications

and defendant's subsequent statement to the police.

Pursuant to a plea agreement reached by the parties with the

input of the trial judge pursuant to Rule 3:9-3(c), defendant

thereafter pled guilty to two amended counts of second-degree

robbery (counts one and four). In accordance with the terms of

the plea, the judge sentenced defendant to two concurrent five

year terms, subject to the 85% parole ineligibility provisions of

the No Early Release Act ("NERA"), and three years of parole

supervision upon his release. The judge also assessed appropriate

fines and penalties, and dismissed the remaining counts of the

indictment.

On appeal, defendant raises the following contentions:

POINT I



THE TRIAL COURT SHOULD HAVE SUPPRESSED THE SHOWUP IDENTIFICATIONS; ADDITIONALLY, THE MATTER SHOULD BE REMANDED FOR PROPER CONSIDERATION OF ALL THE RELEVANT FACTORS IN







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DECIDING WHETHER TO SUPPRESS DEFENDANT'S CONFESSION.



After reviewing the record in light of the contentions advanced

on appeal, we affirm.

We derive the following facts from the two-day evidentiary

hearing conducted by the trial judge. At approximately 2:20 p.m.

on January 18, 2013, V.S.1 was sitting in his truck that was parked

in a parking lot across the street from a gas station. V.S. saw

a man grab something from the gas station attendant and then run

to a car with New Jersey license plates.

The man drove away in the car, and V.S. followed him in his

truck. As he did so, V.S. called 9-1-1 and reported a possible

robbery. V.S. was able to give the operator the make, model, and

color of the car, together with a description of the clothing the

suspect was wearing. As he was on the telephone, V.S. lost sight

of the suspect and the operator advised him to go to his place of

employment and wait for the police to contact him.2

A police dispatcher broadcasted the information V.S. provided

to police units in the area, and Detectives Mark Delcarpio and

John Moore, and Officers Franklin Bay and Travoun James were among

1 In order to protect their privacy, we use initials to refer to the witness and the victim.



2 The 9-1-1 tape was played at the evidentiary hearing and the State provided a copy of the transcript of the call.







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the officers who responded to the call. Officer Bay observed the

suspect, who was later identified as defendant, driving the car

described by V.S., and he executed a motor vehicle stop. The

police removed defendant from the car, and arrested and handcuffed

him. Officer Bay then returned to the gas station to speak to the

witnesses.

At the gas station, Officer Bay was joined by Officer James,

and Detectives Delcarpio and Moore. By that time, V.S. had also

returned to the gas station and he repeated the information he

previously provided during his call to 9-1-1.

Detective Delcarpio drove V.S. to the scene of defendant's

stop to conduct a showup. Before arriving at the scene, the

detective advised V.S. that a potential suspect had been

apprehended, and the police wanted to see if V.S could identify

him. Detective Delcarpio and V.S. arrived at the scene only eight

minutes after the alleged robbery. At that point, defendant was

standing near other police officers while handcuffed. Detective

Delcarpio parked about ten feet away from defendant and, from the

backseat of the unmarked police car, V.S. stated "yes, that's

him." Detective Delcarpio then transported V.S. to police

headquarters.

The officers also interviewed the gas station attendant, E.J.

E.J. told the police that he had been in the attendant's booth







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when a man approached him. The man pressed either a pen or a

pressure gauge against his stomach and said, "give me the money,

give me the money or I'll fucking kill you," while trying to take

something from his pocket. E.J. stated that he yelled for help

and the man took off.3 E.J. also described the man's clothing.

At 2:45 p.m., just twenty-five minutes after the robbery,

Officer Bay drove E.J. to the scene of defendant's stop to conduct

a showup. Before driving E.J. to the scene, Officer Bay told him

that they would drive by an individual to see if E.J. could

identify him.

At the scene, Officer Bay stopped approximately ten feet away

from where defendant was still standing in handcuffs in proximity

to several police officers. E.J. stated, "If I had to swear under

oath, that's the guy." Officer Bay then drove E.J. to police

headquarters. The officer subsequently prepared a "Showup

Identification Procedures Worksheet" documenting E.J.'s

identification of defendant.4

3 Later that day, Detective Delcarpio retrieved video surveillance of the incident and he testified that it confirmed the accounts provided by E.J. and V.S.



4 Unlike Officer Bay, Detective Delcarpio did not prepare a worksheet concerning V.S.'s identification of defendant.







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At headquarters, Detective Delcarpio took statements from

E.J. at 3:11 p.m., and from V.S. at 3:27 p.m.5 E.J. stated that

when he saw defendant at the showup, "I thought about it for a

moment and said if I were under oath would I say he was the perp

and I said to myself, yes I would say he was the perp under oath."

E.J. told the detective that he was "98%" sure that defendant was

the man who robbed him. In his statement, V.S. told Detective

Delcarpio that he was "100% positive" that defendant was the same

man he saw approach E.J. at the gas station.

The police also brought defendant to headquarters. Once he

arrived, Officer James brought defendant to "the O.D. room to be

processed." The officer recognized defendant as someone he had

played basketball with in high school, but neither man acknowledged

their previous acquaintance.

Defendant was placed in a chair and handcuffed to it. Officer

James then "took [defendant's] information meaning [he] got his

full name, his address, his phone number, . . . the last place he

worked, just his general pedigree information." The officer used

this information to prepare an arrest report. Officer James did

not ask defendant any questions about the crime. The whole process

took approximately ten to twelve minutes.

5 The State played the two video-recorded statements at the evidentiary hearing, and also provided transcripts of them.







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After Officer James obtained defendant's pedigree

information, another officer arrived to bring defendant to the

detective bureau. After being advised of his Miranda6 rights,

defendant gave a video-taped statement in which he confessed to

robbing E.J. while using a metal wrench. Defendant also confessed

to robbing another individual the day before, again using a metal

wrench to threaten the victim.

Defendant did not testify at the evidentiary hearing and did

not call any witnesses.

At the conclusion of the hearing, the trial judge denied

defendant's motion to suppress the identifications provided by

V.S. and E.J., and defendant's statement to the police concerning

the robberies. In addressing the identifications, the judge noted

the requirement set forth in Rule 3:11(a) to (c) that a record of

the identification procedure be made. Here, the judge found that

the police apprehended defendant almost immediately after V.S.

made his 9-1-1 call. Within eight minutes, V.S. had identified

defendant in the showup, with E.J. identifying him less than twenty

minutes later. The State provided transcripts of the video-taped

statements made by V.S. and E.J. approximately one hour after the

robbery. Both witnesses provided information in their statements

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







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detailing what they told the officers concerning their

identification of defendant as the person who robbed E.J. Officer

Bay also prepared a written identification report further

documenting E.J.'s identification of defendant.

Under these circumstances, the trial judge found that the

State met the requirements of Rule 3:11 and, therefore, the

identifications were admissible. In so ruling, the judge also

advised defendant that consistent with Rule 3:11(d), he would

consider providing the jury with special instructions on the

identification process if the matter proceeded to trial.

With regard to defendant's statement to the police, he did

not dispute that the detectives advised him of his Miranda rights

prior to speaking to him. However, defendant alleged that prior

to speaking to the detectives, Officer James coerced him into

confessing to the robberies by appealing to their prior friendship.

The trial judge rejected this argument, finding that there was

"absolutely no evidence" in the record to support defendant's bald

assertion. This appeal followed.

On appeal, defendant argues that V.S. and E.J.'s

identifications of him should have been suppressed because the

State did not adequately document the showup procedure used to

identify him as required by Rule 3:11. Defendant also asserts

that the trial judge should have suppressed his confession because







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Officer May failed to video- or audio-tape his conversation with

defendant during which the officer asked for defendant's pedigree

information. We disagree with both contentions.

Turning first to the identification issue, it is well settled

that when reviewing a decision concerning a showup, "very

considerable weight" is assigned to the trial judge's "findings

at the hearing on the admissibility of identification evidence."

State v. Adams, 194 N.J. 186, 203 (2008) (quoting State v. Farrow,

61 N.J. 434, 451 (1972)). The judge's findings should not be

disturbed if they are supported by sufficient credible evidence

in the record. Ibid. Review of the trial court's application of

the law to the facts, however, is plenary. State v. Coles, 218

N.J. 322, 342 (2014).

In State v. Delgado, our Supreme Court addressed whether law

enforcement officers had a duty "to record the details of out-of

court identification procedures that result in positive

identifications and non-identifications as well as near misses and

hits." Supra, 188 N.J. 48, 58 (2006). Recognizing that

misidentification was "the single greatest cause of wrongful

convictions in this country," id. at 60, the Court invoked its

supervisory powers under Article VI, Section 2, Paragraph 3 of the

New Jersey Constitution to require a written record as a condition

to the admissibility of out-of-court identifications. Id. at 63.







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The Court therefore directed law enforcement officers to make "a

written record detailing the out-of-court identification

procedure, including the place where the procedure was conducted,

the dialogue between the witness and the interlocutor, and the

results." Ibid. The Court explained that a detailed summary of

the identification should be prepared whenever feasible and that

electronic recordation was advisable, but not mandated. Ibid.

The Court "refer[red] to the Criminal Practice Committee the

preparation of a rule for [its] consideration that incorporates

the recording requirements for out-of-court identifications." Id.

at 64. On September 4, 2012, the Supreme Court adopted Rule 3:11,

entitled "Record of an Out-of-Court Identification Procedure." In

pertinent part, the Rule states that "[a]n out-of-court

identification resulting from a . . . showup identification

procedure . . . conducted by a law enforcement officer shall not

be admissible unless a record of the identification procedure is

made." R. 3:11(a). "If the record that is prepared is lacking

in important details as to what occurred at the out-of-court

identification procedure," the Rule further provides that "the

court may . . . declare the identification admissible, redact

portions of the identification testimony," or "fashion an

appropriate jury charge to be used in evaluating the reliability

of the identification." R. 3:11(d).







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Applying these principles, we agree with the trial judge that

the State complied with the dictates of Rule 3:11(a). The robbery

was reported at about 2:20 p.m., the showups were conducted within

eight and twenty-five minutes, respectively, and the statements

of E.J. and V.S. were taken within sixty minutes of the robbery.

The State provided defendant with these statements, which included

their contemporaneous expressions of their strong confidence in

their identifications.

In addition, Officer Bay completed a written Showup

Identification Procedures Worksheet containing information about

E.J.'s identification of defendant. While Detective Delcarpio did

not prepare a similar worksheet following V.S.'s identification

of defendant at the showup, the trial judge properly determined

that this omission could be addressed at trial by giving the jury

"an appropriate jury charge to be used in evaluating the

reliability of the identification" as specifically permitted by

Rule 3:11(d). Under these circumstances, we discern no basis for

disturbing the judge's reasoned determination denying defendant's

motion to suppress the identifications.

Defendant's contention concerning the admissibility of his

confession also lacks merit. Our review of a trial judge's

decision on a motion to suppress is limited. State v. Robinson,

200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence,







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we must uphold the judge's factual findings, "so long as those

findings are supported by sufficient credible evidence in the

record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting

Robinson, supra, 200 N.J. at 15). Additionally, we defer to a

trial judge's findings that are "substantially influenced by [the

trial judge's] opportunity to hear and see the witnesses and to

have the 'feel' of the case, which a reviewing court cannot enjoy."

Ibid. (alteration in original) (quoting Robinson, supra, 200 N.J.

at 15). We do not, however, defer to a trial judge's legal

conclusions, which we review de novo. Ibid.

Applying this standard, we agree with the trial judge's

finding that there is "absolutely no evidence" in the record to

support defendant's claim that Officer James coerced him into

confessing to the two robberies. Indeed, Officer James testified

without contradiction that his discussion with defendant was

strictly limited to obtaining his pedigree information.

Therefore, the officer was not required to give Miranda warnings

to defendant prior to this brief interview. See State v. M.L.,

253 N.J. Super. 13, 21 (App. Div. 1991) (noting that a police

officer is not required to provide a defendant with Miranda

warnings before seeking pedigree information).