SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1570-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHEED D. SHARPE, a/k/a 

RASEED FAULKNER, RASHEED

HAWKINS, and RASHEED

FAULKNER,

Defendant-Appellant.

____________________________

Argued October 31, 2018 - Decided

Before Judges Koblitz and Mayer.

On appeal from Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 15-01-0172.

Michael T. Denny, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora,

Public Defender, attorney; Michael T. Denny, of 

counsel and on the brief).

Dylan P. Thompson, Assistant Prosecutor, argued the 

cause for respondent (Damon G. Tyner, Atlantic 

NOT FOR PUBLICATION WITHOUT THE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.

November 28, 2018
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County Prosecutor, attorney; Dylan P. Thompson, on 

the brief).

Appellant filed a pro se supplemental brief. 

PER CURIAM

Defendant Rasheed D. Sharpe appeals from his September 22, 2016 

conviction of first-degree robbery, N.J.S.A. 2C:15-1, focusing on a March 29, 

2016 order denying his motion to suppress three out-of-court identifications. 

We affirm.

We review the facts relevant to defendant's appeal. Two home invasions 

occurred on the same evening in Atlantic City, approximately one hour apart. 

Four witnesses gave accounts of the home invasions. Each witness described 

the two black males who entered their home. One male was described as five 

foot ten inches tall, with a birthmark or tattoo under his right eye, and wearing

a black hooded sweatshirt. The other man was depicted as five foot five or six 

inches tall and wearing a gray sweatsuit. The men did not wear masks and were 

passing a gun back and forth during the robberies. The victims gave nearly 

identical descriptions of the intruders and the gun.

Defendant became a suspect in the robberies. The police obtained a 

photograph of defendant from an arrest in Connecticut. The photograph 

depicted a scar under defendant's right eye. 
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A photo array lineup was conducted by the police two weeks after the 

robberies. The female victims identified defendant as the intruder who broke 

into their home and robbed them. The same day, a male victim of the second 

home invasion was shown the same photo array lineup, and identified defendant 

as the individual who broke into his home.

The photo array shown to the victims contained six photographs, one of 

defendant and five filler photographs. The photographs depicted black men with 

similar hair and skin tone. However, defendant's photograph was the only one 

with a mark under the right eye. The photo array identifications, while not 

recorded, were memorialized in written reports completed after the 

identifications.

The photo array shown to the two female victims was not double-blind 

because one of the detectives knew defendant was the suspect. Both women 

identified the photograph of defendant as one of the intruders. A different 

officer administrated a double-blind photo array to the two male victims. One 

male identified defendant's photograph as one of the intruders. The other male

was unable to identify the intruder from the array. 

Defendant moved to suppress the out-of-court identifications. Defendant 

argued several deficiencies in the photo array tainted the identifications, 
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rendering the identifications inadmissible. Defendant's primary objection 

focused on the claim that his photograph was the only picture showing a man 

with a mark under his right eye. In addition, defendant contended the photo 

array shown to the female victims was not conducted in a double-blind fashion,

and the police failed to make an audio recording while administering the photo

arrays. 

The Wade1 hearing was conducted over the course of three separate dates. 

In a thorough and well-reasoned written opinion, Judge Patricia Wild denied 

defendant's motion to suppress the out-of-court identifications, finding the photo 

array, while "not perfect," was not impermissibly suggestive or fatally flawed. 

Judge Wild found the fact that defendant was the only individual with a 

mark under his right eye "troubling" and "highly suggestive." The judge noted 

the photo array shown to the female victims were not performed in accordance 

with the double-blind requirement. Further, the judge found it was not clear if 

officer conducting the photo array gave proper pre-identification instructions. 

The judge acknowledged one of the female victims was under immense stress 

as she was assaulted and held at gunpoint during the home invasion. Similarly, 

the judge recognized the two-week delay between the date of the home invasion 

 

1

 United State v. Wade, 388 U.S. 218 (1967).
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and the date the photo array was shown to the victims. The judge also noted the 

absence of an audio recording of the identification procedure. 

On the other hand, Judge Wild found the detective who presented the 

photo array to the female victims did not provide any feedback during the 

identification process. Additionally, the judge commented that the duration of 

the home invasion was lengthy, leaving ample time for the female victims to 

observe the intruders' faces in the well-lit house. 

In reviewing the identification made by the male victim, Judge Wild noted 

the officer administered the proper pre-identification instructions, the array was 

properly displayed using the double-blind method, and the officer did not 

provide feedback during the photo identification process. While the photo 

identification was not recorded on audio, the judge found the officer prepared a 

written report of the identification in accordance with Rule 3:11. 

After denial of his motion to suppress the out-of-court identifications, 

defendant pleaded guilty to an amended charge of first-degree robbery. As part 

of his guilty plea, defendant reserved the right to appeal the denial of his motion 

to suppress the out-of-court identifications. Defendant was sentenced to seven 

years in prison with an eight-five percent parole disqualifier, under the No Early 

Release Act, N.J.S.A. 2C:43-7.2. 
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In his counseled brief, defendant raises the following point:

POINT I

THE TRIAL COURT ERRED BY FAILING TO 

SUPPRESS THE IMPERMISSIBLY SUGGESTIVE 

OUT-OF-COURT PHOTO ARRAY 

IDENTIFICATIONS OF THE DEFENDANT, WHICH 

WERE TAINTED BY FLAWS IN CONSTRUCTION, 

ADMINISTRATION, RECORDATION, AND 

RELIABILITY.

A. The construction of the photo array was 

impermissible suggestive.

B. Both officers failed to properly record 

administration of the arrays.

C. The witnesses were under enormous stress and 

subject to weapon focus during the encounter.

D. The arrays administered by [the officer handling 

the first home invasion] were given without any preidentification instruction, and were not blindly 

administered because he had prior knowledge of the 

suspect. 

In his pro se supplemental brief, defendant repeats the same arguments 

raised by his assigned appellate counsel. Defendant's pro se brief consists of

eight separate paragraphs without point headings. 

In reviewing a motion to suppress evidence, we generally defer to the 

factual and credibility findings of the trial court, "'so long as those findings are 

supported by sufficient credible evidence in the record.'" State v. Handy, 206 
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N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We 

accord deference to the trial court "because the 'findings of the trial judge . . . 

are substantially influenced by his opportunity to hear and see the witnesses and 

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

Reece, 222 N.J. 154, 166 (2015) (quoting State v. Locurto, 157 N.J. 463, 471 

(1999)). 

We affirm substantially for the reasons expressed in Judge Wild's 

comprehensive and well-stated written opinion. We add only the following 

comments.

Defendant argues the construction of the photo array was highly 

suggestive because defendant's picture used for the array was the only photo 

showing a person with any facial mark. Because his photograph was the only 

one with a facial mark, defendant claims his picture stood out among the six 

photos in the array, and created a greater risk he would be identified as the 

intruder on the basis of that feature alone. Defendant contends the detective 

should have searched for filler photos using facial markings in addition to hair 

and skin color. 

In State v. Henderson, the New Jersey Supreme Court expressed that

"'mistaken identifications are more likely to occur when the suspect stands out 
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from other members of a live or photo lineup.'" 208 N.J. 208, 251 (2011) 

(quoting Roy S. Malpass et al., Lineup Construction and Lineup Fairness, in 2 

The Handbook of Eyewitness Psychology: Memory for People, at 155, 156 

(R.C.L. Lindsay et al. eds., 2007)). The Henderson Court held identification 

procedures should use similar-looking people because "an array of look-alikes 

forces witnesses to examine their memory. In addition, a biased lineup may 

inflate a witness' confidence in the identification because the selection process 

seems easy." Ibid.

The Attorney General has promulgated guidelines regarding photo arrays 

and lineup identifications. See Office of the Attorney Gen., N.J. Dep't of Law 

and Pub. Safety, Attorney General Guidelines for Preparing and Conducting 

Photo and Live Lineup Identification Procedures 1 (2001) (Guidelines). The 

Guidelines require "fillers who generally fit the witness' description" of the 

suspect. Ibid. Section I.D. of the Guidelines provides: "In composing a 

photo . . . lineup, the person administering the identification procedure should 

ensure that the lineup is comprised in such a manner that the suspect does not 

unduly stand out. However, complete uniformity of features is not required." 

Ibid.
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Even a poorly constructed lineup does not result in a per se "substantial 

likelihood of irreparable misidentification[.]" Henderson, 208 N.J. at 289. In 

the event of an imperfect lineup, the Henderson Court concluded imperfections 

could be addressed through an appropriate instruction to the jury. Id. at 252 

("[J]urors should be told that poorly constructed or biased lineups can affect the 

reliability of an identification and enhance a witness' confidence."). 

In this case, the detective who testified during the Wade hearing explained 

he created the photo array with five filler photographs obtained through the 

Sheriff's Office County Identification System. The detective stated he searched 

for photographs of individuals with hair and skin color similar to defendant's 

features. When asked if he could find any photographs with a facial marking

similar to defendant, the detective responded:

There [were] people there with facial markings. But to 

find somebody with [a mark] under the right eye . . . I 

mean, you'll find people in there with tattoos all over 

their necks, scars on their faces, tattoos down the whole 

side of their face, all different things. But to find 

somebody that just has - like the victims described - the

marking under the right eye and only the marking under 

the right eye, no, I couldn't.

In commenting on the absence of facial markings in the filler photos, 

Judge Wild wrote: 
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[The detective] indicated that he first attempted to find 

appropriate fillers based on more general 

characteristics such as hair and facial structure. The 

[d]etective stated that once these specifications were 

put into the system, he could not find any individuals 

other than [d]efendant who had a similar marking under 

their right eye. Additionally, [one female victim]

testified that her identification was made based on her 

recollection of the perpetrator from November 9, 2013, 

not the marking on [d]efendant's face. 

Complete uniformity of features in a photo array is not required,

particularly in this case because the detective was unable to find another 

photograph matching defendant's description, including skin, hair tone, and 

mark under the right eye. The photo array was otherwise fair because the array 

contained photographs of individuals with similar skin and hair tones. 

Moreover, if defendant had gone to trial, and the matter was submitted to a jury, 

the judge could have issued appropriate jury instructions regarding the 

construction of the photo lineup and its limitations.

Having reviewed the record, and based on the totality of the 

circumstances, we are satisfied defendant failed to demonstrate a substantial 

likelihood of irreparable misidentification related to the three out-of-court 

identifications. The judge's findings were supported by sufficient credible 

evidence in the record of the Wade hearing. 

Affirmed.