SYLLABUS
(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).
State v. Cecilia X. Chen (A-69-08)(063177)
[NOTE: This is a companion cases to State v. Larry R. Henderson, also filed today.]
Argued September 29, 2009 -- Decided August 24, 2011
RABNER, C.J., writing for a unanimous Court.
In this appeal, the Court considers whether suggestive behavior by a private party, without any state action, should be evaluated at a pretrial hearing to determine whether an eyewitness’ identification may be admitted at trial.
Late in the evening on January 23, 2005, Johann Christian Kim (JC) received a phone call from his ex-girlfriend, defendant Cecilia X. Chen. The two had not spoken since June 2000, around the time their relationship ended. During the call, defendant told JC that she was not doing well and had recently broken up with her boyfriend. She apologized for having taken JC for granted and wondered aloud how things might have turned out had they remained together. JC stated that he was happily married and expecting a child. Defendant cried at times before the conversation ended.
Three days after that phone call, JC’s wife, Helen, was home alone recovering from surgery. At 4:00 in the afternoon, she received a phone call from an unknown woman who asked for Mr. Kim. The woman explained that she was calling about a second mortgage with Bank of America, but the Kims had no such mortgage. The caller ID listed a liquor store located in Neptune City. The Kims lived nearby in Ocean Township. A short time later Helen was disturbed by loud knocking on the front door. A young woman who Helen did not know, but who Helen later identified as defendant, was at the door. The woman explained that her car had broken down and asked to use a phone and the bathroom. Helen let the woman into the house, but called JC to tell him about the strange phone call and woman. While they were speaking, the woman returned from the bathroom, grabbed Helen, and stabbed her with a kitchen knife in the back of the shoulder. Helen fought back. A neighbor who lived across the street, Lori Schoch, heard Helen’s screams and saw part of the struggle on the front porch. Schoch called the police. Helen was able to disarm her attacker, and the woman ran off.
Helen described her assailant to police as an Asian or Filipino woman who was about 5’4”, twenty to twenty-five years old, and wearing black frame glasses. Schoch provided a similar description to the police within about two hours of the attack. Helen drew a picture of her assailant that night. She showed it to JC who thought it looked familiar. Between the drawing and the unusual phone call, JC thought that perhaps it might be defendant. JC had access to defendant’s personal website and showed Helen five to ten pictures of defendant on the computer. When she saw one picture, Helen “just jumped” and was “ninety percent positive” that defendant was her attacker. Helen testified that she looked at the photos about five more times during the first month after the attack.
The Kims brought copies of the photos to the police station. During their investigation, police learned that defendant lived in Maryland and attended medical school there. They traced her activities on the day in question and determined that defendant could have left the state in time to arrive in New Jersey and carry out the attack. Other corroborating evidence also was introduced at trial: a search of defendant’s car uncovered a piece of paper with the words “Ocean Township” and the Kims’ phone number written on it; and a co-worker testified that defendant wore black eyeglasses similar to those found at the Kims’ house.