(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 11, 1996 -- Decided June 20, 1996
GARIBALDI, J., writing for a unanimous Court.
On August 6, 1991, Mohamed Abaza was driving his car in Paterson around noon when he
approached a man waving by a stop sign. When Abaza stopped his car, the man walked to the driver's side
window and pulled a handgun. The man demanded that Abaza exit the car, which he did. As the gunman
was getting into the car, a second man entered the passenger's side.
Abaza described the men in detail to the police. He purportedly identified both men through police
photograph books. One of the men, Luis Vincent, was the passenger. Abaza identified a Malcolm Johnson
as the driver.
The police located Vincent, who volunteered that he had been with Allen James, not Malcolm
Johnson. Two weeks later, Abaza notified the police that he was no longer positive that Malcolm Johnson
was the gunman. Abaza later visited the police station to look through some more photographs. When he
arrived, Allen James was seated in the room. The police told Abaza that a new suspect had been arrested
and that he was in the room. Abaza quickly picked James's photograph out as the gunman.
James and Luis Vincent were indicted for robbery. James moved to suppress Abaza's out-of-court
identification and any in-court identification arising therefrom. The trial court granted the motion. Luis
Vincent entered into a plea agreement with the State and agreed to testify against James.
At trial, Abaza identified Vincent as the passenger. On cross-examination, defense counsel asked
the victim to describe the gunman. The State objected. The trial court determined that if James's attorney
opened the door to the identification issue, the State could introduce the otherwise-excluded evidence of the
victim's prior identification. Defense counsel withdrew the question.
James was convicted of robbery. He was sentenced to an extended term of thirty years in prison
with a twelve-year parole disqualifier. He appealed. The Appellate Division affirmed, and the Court granted
James's petition for certification.
HELD: Once a defendant seeks to introduce misidentification testimony after the trial court has determined
that the identification process was impermissibly suggestive and that the victim's identification of the
defendant was patently unreliable, the trial court must not allow the jury to have unlimited access to
the suppressed evidence as part of the State's rebuttal testimony.
1. The trial court and the Appellate Division relied on a 1979 federal case (Pettijohn v. Hall) in holding that
although defendant had the right to question a witness about a misidentification, when that testimony was
intimately interrelated with previously suppressed testimony, defendant waived his right keep that testimony
from the jury. (pp. 8-14)
2. Other jurisdictions have decided cases with similar issues under the "opening the door" doctrine. This
doctrine allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair
prejudicial use of related evidence. (pp. 14-25)
3. The trial court committed reversible error by forcing defendant to choose between his right of
confrontation and his right to have an unreliable identification suppressed. Once the trial court determined
that the victim's identification of defendant was "patently unreliable," it was error to conclude that the jury
would be able to consider the evidence for substantive purposes. Defendant had a right to introduce the
victim's testimony to establish that another person had been identified as the gunman and that the
description did not match defendant. (pp. 25-26)
4. Although the State correctly argues that it should be permitted to introduce rebuttal evidence on the issue
of misidentification, the trial court erred in not limiting the evidence that could be used. In this case, the
defendant was erroneously required to trade one constitutional protection for the ability to exercise another
constitutional right. (pp. 26-29)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for a new trial.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN, and
COLEMAN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-
106 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALLEN JAMES,
Defendant-Appellant.
Argued March ll, l996 -- Decided June 20, 1996
On certification to the Superior Court,
Appellate Division.
Steven M. Gilson, Designated Counsel, argued
the cause for appellant (Susan L. Reisner,
Public Defender, attorney).
Terry S. Bogorad, Assistant Prosecutor,
argued the cause for respondent (Ronald S.
Fava, Passaic County Prosecutor, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal concerns the scope of defendant's Sixth Amendment right to confront a witness and defendant's Fifth Amendment due process right to prohibit the introduction into evidence of an identification that resulted from impermissibly suggestive police procedures. Specifically, the issue is whether the trial court erred in ruling that defendant would waive his
objection to the victim's suppressed identification of him if he
questioned the victim about his earlier misidentification of
defendant or about his description of the perpetrator.
At approximately 12:00 p.m. on August 6, 1991, Mohamed Abaza was driving his car in Paterson on the way to the unemployment office. He was driving alone with his windows down. As Abaza's car approached a stop sign at an intersection, a man waved for him to stop. When Abaza stopped his car, the man walked toward the driver's side window. The culprit then pulled out a handgun, pointed it at Abaza's left shoulder, and demanded that he exit the car. Abaza immediately got out of the vehicle, and the man wielding the gun entered the driver's side of the automobile. Abaza testified that while the gunman was making his way into the driver's seat, a second man entered the passenger side of the vehicle. The two assailants then drove off in Abaza's car. At trial, Abaza testified that he was able to see the faces of both assailants clearly.
Immediately after the assailants fled, Abaza walked across the street to a pay phone and called the police. The police arrived on the scene within an hour. The victim explained to the officers what had transpired. At the time, he described the man wielding the gun as being 5'11", thin, approximately thirty-years old, and having short, cropped hair. After some brief questioning, the police invited Abaza to go with them to the station to look through some photograph books in order to identify the assailants.
When they arrived at the police station, the officers
provided Abaza with a few photograph books to review. After
examining the books, the victim purportedly identified both
perpetrators. He identified a photograph of Luis Vincent as a
picture of the person who entered his car on the passenger side
and a photograph of Malcolm Johnson as a picture of the person
who pointed the gun at him. At the time, Abaza told the police
that he was 110" sure about the identifications that he had made.
A few days after the victim identified Luis Vincent, the
police located Vincent in the Passaic County jail. They had
Vincent transported to the Paterson police station and charged
him with robbery, contrary to N.J.S.A. 2C:15-1. After being
advised of his Miranda rights, Vincent declined to make a
statement. However, he did volunteer that he was with defendant.
Vincent did not specifically state that he was with defendant on
the day of the carjacking. Nonetheless, the police quickly
narrowed in on defendant as the possible second culprit.
Two weeks after he made his initial identification, Abaza
contacted the police and stated that he was no longer positive
that the photograph of Malcolm Johnson was the picture of the
person who stole his car at gunpoint. However, he indicated that
he was still confident about the accuracy of his selection of
Vincent's photograph.
On August 20, approximately two weeks after the carjacking,
the police invited Abaza to return to the police station to look
through some more photographs. When Abaza returned to the police
station to make the identification, he was seated twenty-five to
thirty feet away from defendant. In fact, the victim admits to
having seen defendant seated in the corner of the room when he
entered the detective bureau. Moreover, when Abaza arrived at
the detective bureau, he was told that the police had conducted
an investigation and that Malcolm Johnson, the man whom Abaza had
previously identified as the carjacker, could not have been the
culprit. He was also informed that the police had arrested
another suspect and that the new suspect was present in the
detective bureau. The police gave this information to the victim
minutes before they presented the victim with a collection of ten
photographs of black males, one of which included defendant,
Allen James. Abaza picked out defendant's photograph as the
picture of the man who pointed the gun at him and asked him to
exit the car.
An indictment was filed, charging defendant Allen James and
codefendant Luis Vincent with first-degree robbery, contrary to
N.J.S.A. 2C:15-1. At a WadeSee footnote 1 hearing, defendant moved to
suppress any testimony regarding the out-of-court identification
and any in-court identification resulting therefrom, claiming
that the identification procedures used by the police were
impermissibly suggestive. In accordance with State v. Madison,
109 N.J. 223, 232-33 (1988), the trial court granted defendant's
motion to suppress, finding that the out-of-court identification
procedures were impermissibly suggestive and that there were not
sufficient indicia of reliability to outweigh the corrupting
effect of the suggestive identification.
Further, the court determined that the State had not
established by clear and convincing evidence that there was an
independent source for the victim to make an in-court
identification, and therefore the court ruled that the State
would not have the benefit of an in-court identification by
Abaza. Accord Manson v. Brathwaite,
432 U.S. 98, ll4,
97 S. Ct. 2243, 2253,
53 L. Ed.2d 140, l54 (1977); Neil v. Biggers,
409 U.S. 188, l98-99,
93 S. Ct. 375, ___,
34 L. Ed.2d 401, 4l0-ll
(1972); Simmons v. United States,
390 U.S. 377, 384,
88 S. Ct. 967, ___,
19 L. Ed.2d 1247, l253 (1968); State v. Ford,
79 N.J. 136, l36-37 (1979) (Pashman, J., concurring). In making this
determination, the court weighed the corruptive effect of the
suggestive procedures against the factors this court deemed
relevant in Madison, supra, 109 N.J. at 239-40. Those factors
include the opportunity of the witness to view the criminal at
the time of the crime, the witness's degree of attention, the
accuracy of his prior description of the criminal, the level of
certainty demonstrated at the time of the identification, and the
time between the crime and the identification. Ibid. (quoting
Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed.
2d
at 154).
Immediately after the Wade hearing, Luis Vincent entered a
guilty plea to receiving stolen property. As part of the plea
agreement with Vincent, the State dismissed the robbery charge
and stipulated that when it made a recommendation at his
sentencing hearing, it would consider his undertaking to testify
truthfully at defendant's trial.
At trial, on direct examination, the victim made an in-court
identification of Luis Vincent as the man who entered the
passenger side of the car. On cross-examination, defense counsel
asked the victim to provide a physical description of the gunman
who flagged down the car. The State immediately objected and
asked for a sidebar conference. Outside the presence of the
jury, defense counsel argued that she planned to ask the victim
about his description of the perpetrator on the day of the
carjacking because that description did not match the police
officer's description of defendant on the day defendant was
arrested. For example, the victim had indicated in pretrial
motions that the person whom he saw with the gun had very closely
cropped hair. However, a police report indicated that when
defendant was arrested he wore his hair in long braids. The
trial court responded that it considered the description and the
identification procedures to be intertwined. Therefore, if
defense counsel inquired into the victim's original description
of the assailant, the State would be allowed to introduce
evidence of the impermissibly suggestive identification. After
noting her objection for the record, defense counsel withdrew the
question.
The State's other major witness was Luis Vincent, who
testified that he saw defendant flag down the victim and then
proceed to enter the victim's vehicle. During the direct
examination, the State asked Vincent why he entered Mr. Abaza's
car and how he knew defendant was going to take the car by
unlawful means from its owner. Vincent responded that he got in
the car for a ride and that he knew defendant "was up to
something." When the State asked Vincent the basis for his
answer, he responded, "He's that kind of person." Defense
counsel objected to Vincent's answer as being speculative, and
the State withdrew the question. The trial court, however, did
not issue an instruction to the jury about how it should treat
that question or that answer.
When the jury was deliberating, the trial court received a
note from the jurors. The jurors requested a read-back of
Abaza's testimony, in particular Abaza's identification of
defendant. The trial court informed the jurors that there "is no
testimony in the case as to Mr. Abaza's identifying the
defendant." The court then ordered that Abaza's testimony be
read back. The jury convicted defendant of robbery.
The trial court denied defendant's motion for a new trial
and found that defendant qualified as a persistent offender, thus
making him eligible for an extended term. Defendant was
sentenced to an extended term of imprisonment for thirty years
with a twelve-year parole disqualifier.
Defendant appealed and the Appellate Division affirmed his
conviction and sentence. We granted defendant's petition for
certification,
142 N.J. 570 (1995), and now reverse.
Defendant argues that he was denied his right of confrontation because the trial court erroneously ruled that defendant would waive his objection to the suppressed identification if defendant questioned the victim about his earlier misidentification or about his description of the perpetrator. After the Wade hearing, defense counsel informed the court that she planned to present evidence regarding the victim's initial identification of Malcolm Johnson as the perpetrator as well as the description of the perpetrator that the victim gave to the police immediately after the crime. The prosecutor indicated that he would respond to the introduction of such evidence by attempting to present evidence of the victim's subsequent identification of defendant as the culprit. The trial court refused to issue a ruling during the pretrial hearing and instead told defendant's counsel to raise the issue during the trial.
Just before the trial began, defense counsel again requested a ruling on whether she could cross-examine the victim about his identification of Malcolm Johnson as the perpetrator. In response, the trial court drew counsel's attention to Pettijohn v. Hall, 599 F.2d 476, 481 (1st Cir.), cert. denied, 444 U.S. 946, 100 S. Ct. 308, 62 L. Ed.2d 315 (1979), in which the court
observed that a defendant who introduces testimony that is
intimately related with previously suppressed testimony will be
deemed to have waived his objection to the introduction of that
suppressed testimony. This exchange then followed:
[Defense Counsel]: Very good, Your Honor.
With that notation I'm going to indicate for
the purposes of the record that I will not be
asking questions on the issue.
[The Court]: Well, I suggest that when we
reach that point in the case, you ask the
question and I'll make a ruling.
During the cross-examination of Abaza, the suppression issue arose again when defense counsel asked Abaza to give a physical description of the assailant who flagged him down and subsequently pointed a gun at him. Before the victim could respond, the prosecutor asked for a sidebar conference. Outside the presence of the jury, the State argued that if defense counsel were allowed to inquire into the description that the victim provided to the police on the day of the crime, then under Pettijohn, supra, the State should be allowed to introduce evidence that during the course of the investigation the victim did in fact identify defendant as the culprit. Defense counsel responded that she did not intend to question the victim about the identification of Malcolm Johnson because of her concern that she would open the door to redirect about the suggestive identification. Rather, she wanted the jury to hear how the victim's description of the assailant did not match the officer's description of defendant when he was arrested only weeks after
the crime. After listening to both parties, the trial court
stated:
It appears that the description and the
identification procedures are all
intertwined.
Certainly if you want to ask all the
questions of the witness as to what
description he gave of the person who came to
the driver's side with the gun, if you want
to pursue questioning of the witness as to
whether or not he selected a photo on that
very day of a person who was Malcolm Johnson,
you may do so as a method of challenging the
identity of Mr. James in this case, who I
understand will later be identified by Mr.
Vincent.
But under the Petti[john] case if the State
wants to go further on redirect examination,
it appears that there's strong potential for
that for what ultimately happens so the jury
has the full panoply of what took place by
way of identification of the individual with
the gun.
In response to the trial court's ruling, defense counsel withdrew
her question regarding the victim's description of his assailant.
Defendant asserts that the trial court erred in its
application of Pettijohn, supra, and thereby chilled and
effectively restricted his cross-examination of the victim.
According to defense counsel, the testimony that she planned to
develop on cross-examination was not "intimately interrelated" to
the suppressed identification, and therefore the trial court was
wrong in holding that any question about the victim's
identification would permit the State on redirect examination to
ask questions about the suppressed identification.
The State, however, argues that defendant ignores the legal
principle that the State is entitled to a fair trial in which
defendant complies with established rules of procedure and
evidence (citing Chambers v. Mississippi,
410 U.S. 284, 302,
93 S. Ct. 1038, 1049,
35 L. Ed.2d 297, 313 (1973)). According to
the State, the right to elicit testimony that someone else
committed an offense does not carry with it a corresponding right
to restrict rebuttal testimony, and therefore the introduction of
that type of evidence by defendant waives his objections to
otherwise inadmissible evidence (citing Pettijohn, supra,
599 F.2d 476; State v. Bogus,
223 N.J. Super. 409, 422-23 (App.
Div.), certif. denied,
111 N.J. 567 (1988); State v. Samurine,
47 N.J. Super. 172, 180 (App. Div. 1957), rev'd on other grounds,
27 N.J. 322 (1958)).
The Appellate Division agreed with the trial court's ruling
that the victim's identification of defendant should be excluded
from evidence only if defendant refrained from presenting
evidence that the victim made a misidentification or gave a
description that indicated that another person was the
perpetrator. In reaching their conclusions, the trial court and
Appellate Division relied almost exclusively on Pettijohn, supra,
599 F.2d 476.
In that case, the defendant, Carl Pettijohn, was convicted
of armed robbery on the basis of the victim's eyewitness
testimony. Id. at 477. Pettijohn allegedly robbed a security
guard, David Smith, who was on duty at the time of the robbery.
While walking through the company parking lot, Smith was
approached by a man holding two handguns. The man demanded that
Smith give him money. The next day, Smith picked out a picture
of Pettijohn from a group of nine police photographs and
identified him as the robber. Ibid.
Frank Griffin, the manager of the company, witnessed the
robbery from the first floor window of the company's building
some forty feet away. The police also showed Griffin a group of
nine photographs. Id. at 478. Griffin encountered serious
difficulty when he attempted to identify the robber from the set
of nine photographs. Ibid. He narrowed the selection down to
two similar photographs: one was a photograph of Pettijohn, the
other a photo of another man. Griffin picked the picture of the
other man and stated, "I think that's him." Ibid. The police
officer replied, "No it's not." Not surprisingly, Griffin then
selected the photograph of Pettijohn and stated, "It's definitely
this one." Ibid.
Prior to trial, Pettijohn moved to suppress the
identifications of both Smith and Griffin. Ibid. The trial
court ruled that Griffin's identification of Pettijohn was
inadmissible due to the impermissibly suggestive police
procedures. Any in-court identification by Griffin was also
considered tainted by the police tactics, and therefore was also
suppressed. The trial court declined to suppress the victim's
identification. Ibid. During the trial, the defense sought to
introduce Griffin's prior identification of another man. Defense
counsel argued that he wished to call Griffin for the purpose of
showing his identification of a person other than the defendant
and for the purpose of impeaching Smith's identification. The
trial court, the State appellate courts, and the federal district
court all ruled that the testimony was inadmissible because the
identification was neither material nor relevant. Ibid.
The First Circuit Court of Appeals, however, found that
Pettijohn was constitutionally entitled to call Griffin to
demonstrate that he was not the robber. The First Circuit
concluded that evidence that someone other than the defendant was
identified by Griffin as the criminal was not only probative but
critical to the issue of the defendant's guilt, and therefore the
prior identification was relevant and material to Pettijohn's
defense. Id. at 480. Exclusion of such relevant exculpatory
evidence was found to have infringed upon the constitutional
right of the accused to present witnesses in his own defense.
Because the prosecution did not offer a sufficiently compelling
purpose to justify the infringement upon Pettijohn's right of
compulsory process, the First Circuit issued a writ of habeas
corpus unless Massachusetts made arrangements for a new trial
within ninety days.
If the defendant exercised his right to introduce Griffin's
testimony in the new trial, the First Circuit declared that he
would waive his rights in suppressing Griffin's other
identifications. "Once a defendant attempts to introduce
testimony that is intimately interrelated with previously
suppressed testimony, the defendant waives his objections to the
introduction of the related evidence." Id. at 481. Because the
prosecution would be able to introduce the subsequent retraction
and identification on cross-examination, the First Circuit
reasoned that the jury would receive a full and balanced
rendition of the facts. Ibid. Without such rebutting evidence,
the First Circuit believed the jury might be unduly influenced by
Griffin's initial selection of the wrong photograph. However,
the First Circuit noted that if the suppressed identification had
been patently unreliable, then it would be inappropriate to allow
the identification to be used in rebuttal. Id. at 481. In the
present matter, the lower courts appear to have ignored the First
Circuit's statements with respect to the admissibility of
unreliable identifications.
There is no New Jersey case law directly on point. The few New Jersey cases that the State refers to in support of its position, namely, State v. Knight, 63 N.J. 187 (1973); State v. Sette, 259 N.J. Super. 156 (App. Div.), certif. denied, 130 N.J. 597 (1992); and State v. Downey, 237 N.J. Super. 4 (App. Div. 1989), certif. denied, 121 N.J. 627 (1990), do not support the proposition for which they are cited. In those cases, the courts were asked to interpret basic evidence law. The defendants objected to the introduction of evidence that they believed was either (l) more prejudicial than probative, (2) irrelevant, or (3) inadmissible hearsay under the New Jersey Rules of Evidence.
The courts found otherwise. However, in all three cases the
trial courts had discretion over whether or not to admit the
evidence in question. When the basis for a defendant's objection
is within the discretion of the trial court, we have consistently
interpreted this State's rules of procedure and evidence to
permit the State to rebut testimony elicited by defense counsel
and to permit the trial court to determine the admissibility of
the rebuttal testimony. State v. Sturdivant, 3l N.J. l65, l77-78
(l959), cert. denied,
362 U.S. 956,
80 S. Ct. 873,
4 L. Ed.2d 873 (l960); State v. Beard, l
6 N.J. 50, 59 (l954).
In the present matter, defendant's objection is not based on
the New Jersey Rules of Evidence. It is defendant's
constitutional right to due process that defendant claims
protects him from the introduction into evidence of an
identification ruled unreliable because it resulted from
unnecessarily suggestive police procedures. Thus, in deciding
the constitutionality of the trial court's ruling it is useful to
examine how this Court has addressed similar constitutional
claims as well as how courts from other jurisdictions have ruled
on similar claims.
Several state and federal courts have considered whether, when a defendant puts a witness's identification in issue, the prosecution should be allowed to explore in rebuttal pretrial identifications that would otherwise be inadmissible because of constitutional violations. Those courts often base their
decisions on the doctrines of "opening the door," "completeness,"
and "curative admissibility." Although courts use those
doctrines interchangeably, there are subtle differences between
them.
The "opening the door" doctrine is essentially a rule of
expanded relevancy and authorizes admitting evidence which
otherwise would have been irrelevant or inadmissible in order to
respond to (1) admissible evidence that generates an issue, or
(2) inadmissible evidence admitted by the court over objection.
The doctrine of opening the door allows a party to elicit
otherwise inadmissible evidence when the opposing party has made
unfair prejudicial use of related evidence. United States v. Lum
466 F. Supp. 328 (D. Del.), aff'd,
605 F.2d 1198 (3rd Cir. 1979).
That doctrine operates to prevent a defendant from successfully
excluding from the prosecution's case-in-chief inadmissible
evidence and then selectively introducing pieces of this evidence
for the defendant's own advantage, without allowing the
prosecution to place the evidence in its proper context. Lum,
supra, 466 F.Supp. at 334-35. The "opening the door" rule has
its limitations. For example, evidence is still subject to
exclusion where a court finds that the probative value of the
otherwise inadmissible responsive evidence "is substantially
outweighed by the risk of (a) undue prejudice, confusion of
issues, or misleading the jury...." N.J.R.E. 403.
When a witness testifies on cross-examination as to part of
a conversation, statement, transaction or occurrence, under the
doctrine of "completeness" the party calling the witness is
allowed to elicit on redirect examination "the whole thereof, to
the extent it relates to the same subject matter and concerns the
specific matter opened up." Virgin Islands v. Archibald,
987 F.2d 180 (3d Cir. 1993) (citation omitted); cf. N.J.R.E. 106
(specifying similar rule applicable only to writings and
recorded statements). The theory behind the doctrine of
completeness is "that the opponent, against whom a part of an
utterance has been put in, may in his turn complement it by
putting in the remainder, in order to secure for the tribunal a
complete understanding of the total tenor and effect of the
utterance." 7 Wigmore on Evidence, § 2113, at 653 (Chadbourn
rev. 1978). However, the doctrine of completeness does not apply
to separate utterances. 7 Wigmore on Evidence § 2119 (Tillers
rev. 1983). In the present matter, because the victim's
description of the perpetrator and initial identification were
separate utterances unrelated to the later identification of
defendant, the doctrine of completeness technically does not
apply.
The doctrine of "curative admissibility" provides that when
one party introduces inadmissible evidence, thereafter the
opposing party may introduce otherwise inadmissible evidence to
rebut or explain the prior evidence. United States v. Nardi,
633 F.2d 972, 977 (1st Cir. 1980). The doctrine applies only
when inadmissible evidence has been allowed, when that evidence
was prejudicial, and when the proffered testimony would counter
that prejudice. Ibid. Many courts confuse the doctrine of
curative admissibility with the doctrine of "opening the door."
They fail to recognize that the former doctrine applies only when
a party introduces inadmissible evidence. In the present matter,
because the State does not argue that the testimony that
defendant would have elicited from the victim concerning his
description or prior misidentification is inadmissible evidence,
the doctrine of curative admissibility technically does not
apply.
In various jurisdictions, courts have used the doctrines of
"opening the door," "completeness," and "curative admissibility"
to determine whether a defendant who attempts to introduce
testimony that is related to a previously suppressed
identification thereby waives his objections to the introduction
of the suppressed identification. For example, in United States
v. Winston,
447 F.2d 1236 (D.C. Cir. 1971), the defendant was
convicted of assault with intent to commit robbery, assault with
a dangerous weapon, and possession of a gun without a license.
The sole evidence linking the defendant with the crime was the
testimony of the assault victim. Id. at 1237. The trial court,
in a pretrial order, granted the defendant's motion to suppress
the victim's out-of-court identification because the police
conducted a lineup without notifying the defendant's attorney
about the impending confrontation. Id. at 1238. Nevertheless,
the court found that the victim's in-court identification of the
defendant was untainted. Ibid.
During the trial, the defendant, on direct examination,
presented an alibi defense. He testified that he had never seen
the victim until the date of the preliminary hearing. That was
obviously false, because the victim had identified the defendant
at an unconstitutional lineup. Ibid. The prosecutor argued that
the defendant's reference to the preliminary hearing opened the
door for rebuttal testimony by the victim concerning the out-of-court identification. Id. at 1230. The trial court, with
express misgivings, permitted the victim to testify about the
lineup at the police station. After the defendant was convicted,
the trial judge reconsidered his ruling. He concluded that the
admission of the rebuttal testimony, though erroneous, was not
prejudicial error. Id. at 1241.
On appeal, the D.C. Circuit held that the victim's rebuttal
testimony was not admissible on the theory of "opening the door"
and that the admission of the testimony was prejudicial error.
Id. at 1240. According to the court, the mere testimony by the
defendant that he had never seen the victim prior to the
preliminary hearing did not "open the door" to the government's
introducing testimony about facts that were excluded on direct
because of a denial of constitutional rights. Ibid. The D.C.
Circuit stated:
The [opening the door] doctrine is to prevent
prejudice and is not to be subverted into a
rule for injection of prejudice.
Introduction of otherwise inadmissible
evidence under the shield of this doctrine is
permitted "only to the extent necessary to
remove any unfair prejudice which might
otherwise have ensued from the original
evidence." California Ins. Co. v. Allen,
235 F.2d 178, 180 (5th Cir. 1956).
The D.C. Circuit declared that in view of the constitutional
rights involved, a trial court must be particularly careful in
permitting the use on rebuttal of pretrial identifications that
are otherwise inadmissible because of constitutional violations.
Ibid. "In a case of constitutionally-grounded exclusion, there
is a requirement of clear showing of prejudice before the open-the-door rule of rebuttal may be involved." Ibid. The panel
then concluded that the possibility of prejudice from the
defendant's testimony about when he first saw the victim was
minimal, and did not justify the prejudice of admitting rebuttal
testimony that established a viewing that occurred in violation
of the defendant's constitutional rights. The D.C. Circuit
declared that the trial court's error could not be considered
non-prejudicial beyond a reasonable doubt. Id. at 1242.
The Seventh Circuit Court of Appeals confronted the same
issue in United States v. Johnson,
502 F.2d 1373 (7th Cir. 1974),
cert. denied,
420 U.S. 977,
95 S. Ct. 1402,
43 L. Ed.2d 657
(1975), in which the defendant was convicted of robbing a United
States post office. Prior to the defendant's arrest, two postal
clerks made photographic identifications of the defendant. Id.
at 1374. After the defendant was arrested, the same postal
clerks participated in a lineup. However, the police records did
not indicate that a positive identification had been made by
either witness at the lineup. Id. at 1375. Prior to the trial,
the district court granted the defendant's motion to suppress the
photographic identifications because the photographic montage was
shown to be impermissibly suggestive. Ibid. The defense did not
attempt to suppress the lineup confrontation, presumably because
one of the witnesses picked a person other than the defendant
during the lineup. Ibid.
During the trial, the prosecutor did not inquire on direct
examination into any eyewitness identification. However, on
cross-examination, the defense was able to elicit from one of the
eyewitnesses that she had been unable to identify the defendant
during a pretrial lineup. Ibid. On redirect examination, the
prosecutor was permitted to elicit from the witness that she made
a photographic identification of the defendant.
The defendant appealed, arguing that the district court
erred in permitting the prosecutor to inquire on redirect about
the suppressed photographic identification. The Seventh Circuit
affirmed the trial court's decision to allow the prosecutor to
explore, in rebuttal, testimony that was not admissible on direct
in order to prevent prejudice. Id. at 1376 (citing Winston,
supra, 447 F.
2d at 1240). The court reasoned that the defense
counsel, in cross-examining the eyewitness, "opened the door" on
the issue of all pretrial identifications made by that witness.
The Seventh Circuit acknowledged that "[t]he doctrine of curative
admissibility has been specifically held to permit rebuttal use
of pretrial identifications that are otherwise inadmissible
because of constitutional violations." Ibid. (citing Winston,
supra, 447 F.
2d at 1240; United States v. Clark,
294 F. Supp. 44
(D.D.C. 1968)).
Although the Seventh Circuit held that the district court
did not err in allowing the prosecutor to explore, in rebuttal,
identification testimony that was not admissible on direct, the
court severely restricted the type of rebuttal testimony that
would be allowed. The panel made clear that the doctrine of
curative admissibility should not be used to inject prejudicial
evidence. In particular, the court observed that the district
court was correct in severely restricting the Government's use of
the suppressed evidence. For example, the eyewitness was not
allowed to testify about the details of the identification or
even whom she had identified. She could testify only that on
some occasion she made an identification of the person who robbed
the post office. When another witness, on redirect examination,
mentioned the name of the person identified, the answer was
stricken from the record and the court admonished the jury not to
consider it. Ibid.
Similarly, in State v. Benoit,
490 A.2d 295 (N.H. 1985), the
Supreme Court of New Hampshire found that the trial court had
erred in ruling that the defendant would open the door for
inquiry into a previously excluded lineup identification if he
questioned the victim about her misidentification on the day of
the crime. In Benoit, supra, the defendant was charged with
armed robbery. On the same day as the robbery, the victim failed
to identify the defendant as the perpetrator of the crime.
However, six months later, the victim identified the defendant in
a lineup. Id. at 305. The defendant made a pretrial motion to
suppress any testimony regarding the lineup and any in-court
identification resulting therefrom, arguing that the lineup was
impermissibly suggestive. The trial court agreed and suppressed
any out-of-court or in-court identification by the victim. Ibid.
At trial, counsel for the defendant sought to question the
victim about her inability to identify the defendant on the date
of the crime. As in this case, defense counsel asked the court
for a ruling, in the nature of a motion in limine, that he would
not open the door for inquiry into the lineup that had been
suppressed if he questioned the victim about her
misidentification. Ibid. The trial court stated that "if you
inquire into one specific area, the matter is then opened up and
it would be unfair to preclude the State on redirect examination
from inquiring into other identifications." Ibid. Defense
counsel noted for the record that he would not question the
victim about the misidentification because of that ruling.
The New Hampshire Supreme Court reversed. Although the
court acknowledged the general rule permitting misleading
evidence to be countered with previously suppressed or otherwise
inadmissible evidence, the court held that the defendant had not
attempted to elicit misleading evidence. Ibid. The court
reasoned that because the victim was, in fact, unable to identify
the defendant on the date of the crime, it was appropriate for
the defendant to elicit this testimony from the victim. However,
the court did not believe that such an inquiry would open the
door to the State inquiring into other identifications on
redirect examination. The court stated:
Had the State been permitted to elicit
testimony regarding the line-up, it would
have left the jury with the impression that
the witness could positively identify the
defendant despite the fact that the
identification had been deemed unnecessarily
suggestive and therefore unreliable. The
fact that the door has been opened does not,
by itself, permit all evidence to pass
through. "The doctrine is to prevent
prejudice and is not to be subverted into a
rule for injection of prejudice." United
States v. Winston,
447 F.2d 1236, 1240 (D.C.
Cir. 1971).
The New Hampshire Supreme Court then determined that the trial court's ruling constituted reversible error. In reaching that conclusion, the court emphasized two points: (1) an accused has a constitutional right to cross-examine witnesses to impeach their credibility; and (2) the defendant's right to due process of law protects him from the introduction of evidence of an identification ruled unreliable because it resulted from impermissibly suggestive police procedures. Because the court found that the trial court's ruling had, in effect, forced the defendant to relinquish his fundamental right to cross-examination in order to protect his right to due process of law, it held that the error was not harmless. The court reiterated its belief that "'[t]o require a person to surrender one constitutional right in order to gain the benefit of another is
simply intolerable.'" Ibid. (quoting Opinion of the Justices,
431 A.2d 144, 151 (N.H. 1981)).
In the present matter, the trial court similarly committed reversible error by forcing defendant to choose between his right of confrontation and his right to have an unreliable identification suppressed. "[R]eliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at ll4, 97 S. Ct. at 2253, 53 L. Ed 2d at l54. After applying the Manson, supra, two-prong test to determine the admissibility into evidence of an eyewitness's identification, the trial court determined that the police procedures used were so impermissibly suggestive that there existed a "very substantial likelihood of irreparable misidentification." Thus, the trial court took the unusual step of ruling that both the victim's out-of-court and in-court identifications were inadmissible. Once the trial court determined that the victim's identification of defendant was patently unreliable, it was error for the court to conclude that the jury would be able to consider such evidence for substantive purposes. If the State were permitted to elicit testimony regarding the identification of defendant, it would have left the jury with the impression that the victim could positively identify defendant when in reality the trial court determined that the identification was unreliable.
Although truth is a fundamental goal of our legal system,
"various constitutional rules limit the means by which government
may conduct this search for truth, in order to promote other
values embraced by the Framers and cherished through our Nation's
history." James v. Illinois,
493 U.S. 307, 311,
110 S. Ct. 648,
__,
107 L. Ed.2d 676, 682 (1989). In his concurrence in James,
supra, Justice Stevens observed that "In sum, our cases show that
the introduction of testimony contrary to excluded but reliable
evidence subjects the testimony to rebuttal by that evidence."
Id., 493 U.S. at 324, ll0 S. Ct. at ___, l07 L. Ed.
2d at 69l
(Stevens, J., concurring) (emphasis added). On occasion, our
commitment to preventing the State from presenting unreliable or
illegally obtained evidence has meant that a defendant's
misrepresention of the facts of his case would not be subject to
rebuttal. For example, in State v. Davis,
67 N.J. 222 (1975),
cert. denied,
425 U.S. 943,
96 S. Ct. 1684,
48 L. Ed 2d (1976),
we reversed a conviction for armed robbery, holding that a
voluntary statement of the defendant taken in violation of
Miranda could not be used to rebut the testimony of an alibi
witness. Although it is important to promote the fact-finding
goals of criminal trials, we should not do so at the expense of a
defendant's due process rights.
In this case, defendant had a right to introduce the
victim's testimony to establish that another person was
identified as the carjacker and that the description that the
victim gave to the police did not match defendant. Defendant
attempted to establish a sound defense by introducing evidence
supporting an alternative rendition of the facts. The victim's
initial choice of someone else's photograph suggests that some
other person may have been the perpetrator. "Selection of the
picture of a person other than the accused . . . will be useful
to the defense in precisely the same manner that the selection of
a picture of the defendant would be useful to the prosecution.
United States v. Ash, 4l
3 U.S. 300, 3l8-l9,
93 S. Ct. 2568, __,
37 L. Ed.2d 619, 632 (l973). Evidence that someone other than
defendant was identified as the perpetrator is highly relevant to
the issue of defendant's guilt, and thus the exclusion of such
exculpatory evidence infringes on the fundamental right of an
accused to present witnesses in his own defense. Pettijohn,
supra, 599 F.
2d at 480; accord Washington v. Texas, 388 U.S. l4,
l9, 87 S. Ct. l920, l923, l
8 L. Ed 2d l0l9, 1023 (1967). That
right gains enhanced importance when the evidence is critical to
an accused's defense. Chambers, supra, 4l0 U.S. at 302, 93 S.
Ct. at __, 35 L. Ed.
2d at 312-13.
The State argues that allowing defendant to present evidence
that the victim identified another person as the perpetrator,
without also admitting into evidence that the victim subsequently
retracted his original identification and description, could have
conveyed to the jury the misleading impression that the victim
made a reliable identification of another perpetrator. We agree.
However, the trial court erred when it held that the State could,
in rebuttal, present the jury with "the full panoply of what took
place by way of identification of the individual with the gun."
The doctrine of opening the door can be used only to prevent
prejudice; it cannot be subverted into a rule for injection of
prejudice. Winston, supra, 447 F.2d at l240. By not carefully
limiting the State's use of the suppressed evidence, the trial
court created a situation that forced defendant to choose between
his right to cross-examination and his due process right to be
protected from the introduction of unreliable identification
evidence. See Avant v. Clifford,
67 N.J. 496, 539 (l975).
Requiring defendant to trade one constitutional protection for
the ability to exercise another constitutional right was error.
Instead, the court should have allowed the State to explore, in
rebuttal, limited amounts of the suppressed evidence.
Permitting defendant to question the victim about his
initial misidentification and description of the perpetrator does
not mean that the State is without recourse to prevent the jury
from being misled into believing that the victim made a reliable
identification of another person as the perpetrator. Although
the State should not have been allowed to introduce evidence that
the victim identified defendant, the State could have introduced
limited amounts of the suppressed evidence without violating
defendant's due process rights. For example, the victim could
have testified during redirect examination that he had identified
more than one individual as the person who carjacked him. The
victim need not testify about the details of the identification
or whom he identified in order to rebut defendant's implication
that the victim made a reliable identification of another person
as the culprit. Permitting such limited redirect examination
would have removed any unfair prejudice that might otherwise have
ensued from defendant's cross-examination of the victim, without
injecting inadmissible evidence into the trial.
An accused's right to due process of law protects him from
the introduction of an identification that is determined to be
patently unreliable because it was the result of unduly
suggestive police practices. Simmons, supra,
390 U.S. 377,
88 S.
Ct. 967, l
9 L. Ed 2d l247; Madison, supra, l09 N.J. at 299.
A defendant also has a constitutional right to confront witnesses
against him. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10.
When the trial court ruled that defendant would open the door
completely to the introduction of the suppressed identification
if defendant cross-examined the victim about his description of
the culprit and misidentification, the court forced defendant to
choose between his right of confrontation and his right to due
process of law. The court's ruling constitutes reversible error,
and requires reversal of defendant's conviction.
Because we reverse defendant's conviction, we need not reach the issue whether Luis Vincent's testimony that he knew defendant intended to take the car because "he's that kind of person" constitutes reversible error. We observe, however, that because Vincent's statement implied that defendant had a propensity to commit crimes, the trial court should have explained to the jury
the effect of the State's withdrawing the question and provided
the jury with a curative instruction.
The judgment of the Appellate Division is reversed and the
matter remanded to the Law Division for a new trial in accordance
with the opinion of the Court.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN, and COLEMAN join in JUSTICE GARIBALDI's opinion.
NO. A-106 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALLEN JAMES,
Defendant-Appellant.
DECIDED June 20, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed.2d 1149 (1967).