SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T4 STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. GEORGE M. BALLOUTINE , Defendant

- Appellant.

_____ ________ ___ ___________

Submit ted September 14 , 2020

– Decided Before Judges Sabatino and DeAlmeida

. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 17

- 03

- 0497

. Joseph E. Krakora, Public Defender, attorney fo r appellant ( Alyssa Aiello , Assistant Deputy Public Defender, of counsel and on the brief ). Mark Musel la , Bergen County Prosecutor , attorney for respondent ( William P. Miller , Assistant Prosecutor, of counsel and on th e brief ; Catherine A. Foddai, Legal A ssistant, on the brief ). PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon a ny court
. " A lthough 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.

October 5 , 20202 A

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Tried by a jury, defendant George M. Balloutine was found guilty of third

degree distribution of a controlled danger ous substance ("CDS") , specifically testosterone propionate, N.J.S.A. 2C:35

- 5(a)(1) and

- 5(b)(13) (c ount one); third

degree possession of testosterone propionate, N.J.S.A. 2 C :35

- 10(a)(1) (count two); third

- degree distribution of another CDS, heroin, N.J.S .A. 2C:35

- 5(a)(1) and

- 5(b)(3) (count 3); and third

- degree possession of heroin, N.J.S.A. 2C:35

- 10(a) (1) (count four). The trial court sentenced defendant on count three to an extended term of seven years with a three

- year parole disqualifier , and a concu rrent term of four years on count one. The other counts merged for sentencing purposes. In this di rect appeal, defendant principally challenges the sufficiency of the identification evidence presented by the State , and the incompleteness of the charges on identification the court provided to the jury. Defendant also contends that the trial court preju dicially allowed a testifying detective to convey hearsay information from others without an opportunity for tho se declarants to be cross

examined. Lastl y, the State points out i n its brief that duplicative fines and penalties were imposed on the two mer ged counts, and that the judgment of conviction should be amended accordingly.3 A

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For the reasons that follow, we vacate defendant's convictions and remand for a new trial because of critical omissions from the jury charge on the pivotal identification iss ues in this case. I. The State's proofs at trial may be summarized as follows. In essence, the State's theory of the case was that defendant was a drug dealer who had been referred to by a confidential informant as a man named "George

. " The State furth er established that an undercover office r from the county prosecutor's office purchased steroids from a person believed to be "George" on one occasion and purchased heroin from the same man five days later. Defendant contended that he had been mistakenly identified as the drug

- dealing "George , " and presented th re e alibi witnesses who testified defendant had been with relatives on the evening of the second d rug sale. The State's key witness was the undercover detective who had purchased the steroids and he roin. During his testimony, the detective recounted that on June 17, 2015, he had "received information" from a confidential informant that a person named "George" had been illegally selling drugs, and that the seller lived at a certain address on Clark S treet in Garfield. The detective was not supplied with any additional identifying information at that time.4 A

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The undercover detective then went with the informant to the Clark Street address. He told the informant to con tact "George" and let him know a drug purchase r was outside. The informant made that call as requested, in the detective's presence , and then left the detective's vehicle. A few minutes later, a man described by the detective in his report as a "middle

- a ged" white male with gray and bl ack hair wearing a hat , emerged from the building and got into the detective's car. According to the detective, he told the man he wanted to buy steroids from him. The man handed him the steroids in exchange for $430. Bef ore the man left the car, the de tective told him he wanted to buy more drugs from him in the future. After this June 17 drug purchase , the undercover detective that same day went back to the prosecutor's office to try to ascertain the name of the "Georg e" who had sold him the steroids . He conducted what he termed "an in

- house inquiry , " and obtained the names of persons who resided at the Clark Street residence. The detective was advised by a Garfield police officer that a person named George Balloutine resided there. The detective e ntered that name into a database of driver's licenses, and pulled up a color photograph of George Balloutine. According to the detective, the license photo appeared to match the person who had sold him the steroids. As we will discuss, infra, in Part II , the license photo was not introduced into evidence at trial.5 A

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The detective then arranged a second meeting to purchase a different drug, this time heroin. He made the arrangements directly himself by calling a cell phone n umber that subsequently proved t o belong to defendant. According to the detective, he and the seller agreed to meet on June 22 outside the same Clark Street address. This time, the detective was equipped with an audio recorder. When he arrived for the s econd meeting, the detective cal led the cell phone number again. According to the detective, the same person who he had bought drugs from on June 17 emerged from the building, again wearing a hat. The man got into the detective's car. The detective said he wanted to buy a large quanti ty of heroin to sell to others. After discussion, the suspect agreed to obtain a sample of heroin for the detective. Later that evening on June 22, the detective returned to the Clark Street residence, from which the same suspect emerged. The suspect g ot into the detective's car and gave him, without receiving payment, three packets of heroin to sample. At that point, the suspect left the car and the detective drove away. The detective returned to his office, whe re h e field

- tested the substances. He a lso downloaded the audio recording of his two meetings with the seller that day. T he detective testified that a voice on the recordings was the same voice of the man who had given him the drugs . Laboratory tests by the State Police6 A

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confirmed that clear l iquid in the vials was testosterone propionate, and the product in the glassine packets was heroin. Defendant was subsequently arrested eighteen months later and charged with the various CDS offenses we have already not ed. At the ensuing trial, the Sta te presented testimony from the undercover detective, who described his investigation and his interactions with the informant and the drug seller. The detective identified defendant in the
courtroom as the person who ha d sold him the steroids two

- and

- a - ha lf years earlier on June 17 and the heroin on June 22. The State played the audiotapes from June 22 for the jury. The State also presented testimony from a lab chemist verifying the nature of the tested substances. Th e confidential informant did not
tes tify. Defendant did not testify in his own defense. However, he presented alibi testimony from his brother, his mother, and a friend. With some slight variations of the exact times, t hey each corroborated that , on the evening of June 22, defendant was a t his mother's house during the time the State claimed he was on Clark Street dealing in the heroin. As noted, the jury convicted defendant o n all counts of the indictment. On appeal, defendant offers the foll owing arguments for our consideration:7 A

- 4894

- 17T4 POI NT I WHERE DEFENDANT MAINTAINED THAT HE WAS "FALSELY IDENTIFIED" AND PRESENTED ALIBI WITNESSES, THE TRIAL COURT COMMITTED PLAIN ERROR BY AL L OWING THE STATE TO PROVE THAT THE DETECTIVE MADE AN OUT

- OF

- COURT IDENTIF ICATION OF DEFENDANT'S PHOTOGRAPH, WITHOUT PRODUCING THE PHOTOGRAPH IN COURT, AND THEN GIVING AN IDENTIFICATION CHARGE THAT PROVIDED NO GUIDANCE ON HOW TO EVALUATE THE RELIABILITY OF THE OUT

- OF

COURT IDENTIFICATION AND OMMITTED [SIC] RELEVANT "ESTIMATOR VA RIABLES" CRITICAL TO DETERMINING THE RELIAB ILITY OF THE IN

- COURT IDENTIFICATION. POINT II REVERSAL IS REQUIRED BECAUSE THE IMPROPER INTRODUCTION OF INADMISS I BLE AND HIGHLY PREJUDICIAL HEARSAY VIOLATED DEFENDANT'S RIGHT TO CONFRONTATION AND HAD THE CLEAR CAPACITY TO LEAD THE JURY TO A RESULT IT OT HERWISE WOULD NOT HAVE REACHED. II. A. Defendant argues the trial court erred by allowing the detective to testify about his out

- of

- court identification without producing the photograph upon which identificatio n was based. In addition, defendant argues the trial court erred by not giving the combined model "out

- of

- court and in

- court"8 A

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identification charge, which includes additional factors for the jury to consider when assessing such identification s . In approa ching these related issues, we are guided b y our Supreme Court's landmark opinion on eyewitness identification in State v. Henderson , 20 8 N.J. 20 8 (2011). In Henderson , the Court examined a variety of factors that, according to scientific studies, can con found what otherwise might appear to be

an eyewitness's reliable identification of a criminal wrongdoer. Id. at 218. These confounding factors noted in Henderson include so

- called "system variables" (factors within the control of the criminal justice sy stem, such as suggestive aspects of lineup and photo array procedures) and "estimator variables" (factors outside of the control of the criminal justice system, such as the distance between a victim and an assailant, poor lighting, stress, personal charact eristics, and memory decay). Ibid. Given these variables, which can lead to the conviction of a misidentified innocent person, Henderson instructs that "courts must carefully consider identification evidence before it is admitted to weed out unreliable i dentifications, and

. . . juries must recei ve thorough instructions tailored to the facts . . . to evaluate the identification evidence they hear. " Id. at 302. In order to address such reliability concerns, the Court in Henderson prospectively "revise[d] the State's framework fo r evaluating eyewi tness9 A

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identification evidence." Id. at 287. Among other things, the Court elected to modify, see id. at 285

- 96, the applicable legal standard regarding eyewitness identification admissibility, formerly known as the " Manson/Madison " test

. See generally M anson v. Brathwaite , 432 U.S. 98, 114 (1977) (reciting a two

- part test of impressive suggestiveness and reliability); see also State v. Madison , 109 N.J. 223, 232

- 33 (1988) (adopting the federal approach in Manson to guide the courts of t his State), abroga t ed by Henderson , 208 N.J. at 208. In particular, the Court in Henderson discredited three of the Manson/Madison reliability factors (the opportunity to view the crime, the witness's degree of attention, and the witness's level of certain ty at the time of the identification) because they are self

- reporting elements that can be skewed by suggestive police procedures. Henderson , 208 N.J. at 286. As directed by the Court in Henderson , id. at 219, special model jury instructions were adopted in 2012 to guide j urors on these critical concepts f or both out

- of

- court and in

- court identifications. See Model Jury Charges (Criminal) , "Identification: In

- C ourt and Out

- of

- Court Identifications" ( 20 12) ; Model Jury Charges (Criminal) , "Identification: In

- C ourt Identifi cation Only" ( 20 12) ; Model Jury Charges (Criminal) , "Out

- of

- Court Identification Only" ( 20 12).10 A

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These instructions, which became effective years before the instant tr ial, provide jurors with an enhanced explanation of the scientifically known factors that c an result in a misidentification. As the Court stated in Henderson , "it is essential to educate jurors about factors that can lead to misidentifications." Id. at 3 03. The use of enhanced model jury charges o n identification in criminal trials "is a crit ical step in the overall scheme." I bi d. Here, the detective who obtained the drugs from the seller on the two occasions in question first ascertained the identity o f the seller out of court . He then reaffirmed the identity of that seller as defendant in an in

- court identification. The trial court provided the jur or s with portions of only the model charge on in

- court identifications, and did not give them the diffe rent "combined" model charge that includes guidance on out

- of

- court identifications. That latter model charge includes several components that are important to the detective's identification in this case. First, with respect to "system variables," the omi tted model charge addresses several facets that ca n affect whether the out

- of

- court identif ication was "the result of a suggestive procedure

. " Model Charges , "In

- C ourt and Out

of

- Court Identifications" at 6. Among other things, the charge asks jurors to consider whether the eyewitness who made the identification was exposed to "information or influence , that may have affected the independence of his/her11 A

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identification." Id. at 6

- 8. I f , as here, the identification involved the viewing of

a photograph, the jury would be advised of the qualitative differences between a si ng le

- photo identificatio n procedure , as contrasted with one using a multi

photo array. As the Court has more recently observed, a single

- photo identification procedure is es sentially a "show

- up," which can be "inherently suggestive. " State v. Pressley , 232 N.J. 587, 592 (2018) ; see also Model Charges , "In

- Court and Out

- of

- Court Identifications" at 7 (describing a "showup" as "a procedure [ that ] is suggestive in nature"). In Pressley , the Court noted , for example, that it would have been preferable if the undercover officer who made a single

- photo identification of the defendant in Manson after making a controlled purchase of drugs had instead been presented with a photo arra y containing a "reasonable number of persons" who looked like the suspect. 232 N.J. at 5 91 (quoting Mans on , 432 U.S. at 117)

. In this case, the jury could have reasonably found that the si ng le

- photo procedure used by the detective, based on defendant's dr iver's license, was inherently suggestive . Or at least the jury might have given less weight to the prob ative force of that identification , based on the sequence of events. Before making the first drug transaction, the detective had already been supplie d with hearsay information from the informant that the drug seller at the12 A

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location was known as "George

. " The testifying detective was also told by a Garfield detective that a person named "George Balloutine" lived at the Clark Street address. The detect ive also learned that the person in the single driver's license photogra p h he looked at was named "George Balloutine" and resided there. The detective had no other basis to believe the suspect he interacted with was defendant. Although the jury possibly may have considered this to be a reasonable and fair method to identify the seller, it likewise could hav e foun d

-

- after receiving proper instructions from the court

-- that the process was too fraught with suggestive aspects to be reliable. In addition, for reasons that are unclear from the record, 1 the trial court left out key portions of the charge on in

- court identification explaining the pitfalls of disguises, changed appearances, and prior descrip tions of a perpetrator. These unexplained omission s deprived the jurors of learning from the court, in an objective manner, about the "estimator variables" th at could have affected the detective's out

- o f

- court identification.

1 Unfortunately, the charge conference that apparently took place in the afternoon on the next

- to

- last day of tr ial on January 18, 2018 was not transcribed. The transcribed discussion of the charge that took place the following day, January 19, does not rev eal why the court and counsel omitted the combined model charge on identification, and why the sections of the in

court charge that concern disguises, changed appearances, and prior descriptions of a perpetrator were skipped over.13 A

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Among other things, the cha rge would have explained to the jurors the perils of such elements as "disguise s , " "changed appearances , " and "prior description [s] of the perpetrator. " In pa rticular, the jury c ould have benefited from the following passage s in the model instruction:

The perpetrator's use of a disguise can affect a witness's ability both to remember and identify the perpetrator. Disguises like hats , sunglasses , or masks can r educe the accuracy of an identification

.
*** Another factor for your consideration is the accur acy of any description the witness gave after observing the incident and before identifying the perpetrator. Facts that may be relevant to this factor include whether the prior description matched the photo or person picked out later, whether the prior de scription provided details or was just general in nature , and whether the witness's testimony at trial was consistent with, or different from, his/her prior de scription of the perpetrator. [Model Charges, "In Court and Out

- o f

- Court Identifications" at 5 ( emphasis added).] These "estimator variables" were highly relevant in this case because, as defense counsel argued in summation, the fact that the seller was wearing a hat and the fact that the detective included in his police report a rather sparse descr iption of the seller's clothing but no description of the seller's physical characteristic s reasonably suggested the officer did not get a sufficient look at
t he seller to make a positive identification. Without an instruction from the14 A

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judge that those fa ctors were relevant and should be considered, the jury could have improperly concluded that defense counsel's argument had no merit or was not support ed by leg al or scientific authority. We are mindful that defendant's trial attorney did not object to the omission of the combined model jury charge and these important considerations on the reliability of an out

- of

- court identification. To be sure, the court did read some, but not all, of the pertinent portion s of the model charge on in

- court identification. But that did not suffice, particularly given that in

- court identification s can be influenc ed by tainted out

- of

- court identification s made by the same eyewitn ess. It is well established that j ury charges must provide a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green , 86 N.J. 281, 287

- 88 (1 981). Thus, " [ t ] he charge as a whol e must be accurate." State v. Singleton , 211 N.J. 157, 182 (2012). This is because " [ a ] ppropriate and proper charges to a jury are essential for a fair trial." Green , 86 N.J. at 287. More specifically , as is germane here, " [ w ] hen identification is a 'k ey issue,' the trial court must instruct the jury how to assess the evidence

— even if defendant does not request the charge." State v. Sanchez

- Medina , 231 N.J. 452, 466 (201 8 ). A "missing instruction on identification i s review ed for plain15 A

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error[,]" id. a t 468, and is evaluated in light of "the strength and quality of the State's corroborative evidence rather than on whether defendant's misidentification argument i s convincing." State v. Cotto , 182 N.J. 316, 32 6 (2005). Under the plain error standard, th e error must be "clearly capable of producing an unjust result." R. 2:10

- 2. W e cannot fairly conclude that the absence of the combined model instruction on in

- court and out

- of

- court identification s in this case and the omission of the portions on disguise s, changed appearances, and prior descriptions was inconsequential. The case turned entirely on identification. Defendant (and, as to the second transaction , his alibi witnesses ) contended he was not the drug seller an d that he had been misidentified

. There were no third

- part y witnesses who saw the transaction s . The State did not offer into evidence a screenshot or copy of the driver's license photo that the detective viewed in order to make his identification. We d o not know how old that photo was, o r how much it resembled defendant's appearance as of June 201 5

. Although it was not essential for the State to have moved that photograph into evidence, its absence further reduces the probative force of the State's ide ntification testimony. Lastly on this subject, we reject the State 's assertion that any defect stemming from the omission of the model charge was cured by the arguments16 A

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made by defense counsel in summ ation discussing flaws in the identification processes. The words of a lawyer in summation are no substitute for the guidance provided from the mouth of a judge. See State v. Adams , 194 N.J. 186, 207 (2008)

. Moreover , the jurors were told , as is customa ry, that they were entitled to disbelieve the arguments and statements the lawyers made to them. Not so with respect to a judge's instructions, which we presume the jurors must and will obey. Because the omission of this critical model jury charge in this case had a clear capacity to lead to an unjust result, R. 2:10

- 2, that plain error requires a new trial. B. Defendant separately argues the trial court deprived him of a fair trial, by allowing the detective to convey, through his testimony , various hearsay statements made by others. Because defendant's tri al counsel did not raise such a hearsay objection, our review is guided by the plain error standard. State v. Branch , 182 N.J. 338, 353 (2005). We discern no such plain error and are unp ersuaded any alleged hearsay violations were clearly capable of prod ucing an unjust result. Defend ant argues the prosecution violated the restrictions of State v. Bankston , 63 N.J. 263 (1973) , by eliciting testimony from the detective that17 A

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convey ed inform ation he learned from other people. We disagree. The principles of Bankston permit a police officer to testify that he went to a crime scene or approach ed a suspect based "upon information received" in order for the State to show the officer had not acte d in an arbitrary manner. Id. at 268. By contrast, the hearsay rul e is violated when an officer becomes more specific by repeating what some other person told him, in a manner that suggests or implies to the jury that " he possesses superior knowledge, ou tside the record, that incriminates the defendant. " Branch , 182 N.J . at 351. The detective's testimony about what he had been told by the confidential informant did not go into details about the specifics of the alleged drug dealing that had been occurr ing in Garfield , n or the informant's basis of his knowledge. At mos t, the detective related that the informant had told him a person named "George" had been distributing drugs in the area. The disclosure was relevant to explaining how the police became i nvolved in investigating the matter. The detective never stated or implied that the informant was asserting that this particular person was the drug seller. Even if the testimony were viewed as being offered for its truth, the limited disclosures were no t manifestly prejudicial to amount to a denial of a fair trial or a material deprivation of the accused 's right to confrontation. The testimony was not unfairly prejudicial under N.J.R.E. 403.18 A

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Additionally, the detective's testimony about conversations between defendant and the informant that he overhea r d does not violate the hearsay rule , because defendant's own statements are admissible as assertions by a party

opponent. N.J.R.E. 803(b)(1). Likewise, out

- of

- court statements that the detective himself made when he was arranging the meetings with the drug dealer could ap propriately be conveyed to the jury by the detective as part of his own narrative, as to which he had personal knowledge. See N.J.R.E. 602. T he detective's testimony that he learned from another person that a drug seller was at the Clark Street address does not require reversal , because the detective subsequently gained personal knowledge of drug dealing there by taking part i n the two drug transfers at that location. Also, t here was no hearsay violation stemming from the detective's testimony about cal ling the cell phone number to arrange the meetings with the seller , because the number itself is not an assertive statement, a nd the detective's conduct in calling the number is an action, not a statement. See N.J.R.E. 801( a ) (defining a "statement " to

en compass only actions that are intended to be assertive). In any event, even if we were to regard portions of the detective's
t estimony to cross the hearsay boundaries, we are unconvinced those matters , which were not objected to by trial counsel, were so p rejudicial as to require appellate relief. Had the jury been properly instructed on eyewitness19 A

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identification principles, we are satisfied there is ample non

- hearsay incriminating evidence in this record

-- including the detective's first

- hand account of the two drug transfers , the audio recordings, and the CD S itself

-- to sustain defendant's conviction. 2 Reversed and remanded for a new trial.

2 If, hypothetically, a new trial was not required, the judgment of conviction must be amended to remove the duplicative fines and pe nalties , as noted in the State's brief.