State of New Jersey v. Johnnie L. Davila

• Court: New Jersey Superior Court Appellate Division
• Decided: May 6, 2024
• Docket: A-2041-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2041-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNNIE L. DAVILA,

Defendant-Appellant. _________________________

Submitted April 16, 2024 – Decided May 6, 2024

Before Judges Mayer and Whipple.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 19-05-0642.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

LaChia L. Bradshaw, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant appeals from his conviction for fourth-degree theft by unlawful

taking of a means of conveyance, N.J.S.A. 2C:20-10(d). We affirm.

On September 20, 2018, Mustapha Gbassa left his car running, with the

keys in the ignition, while running an errand inside a store. Once he exited the

store, his car was gone. He did not see who took the car, but the store had a

video surveillance system that recorded activity inside and outside the store.

Westampton Township Police Detective, Thomas Polite, responded to the

store as well as Willingboro Township Police, where Gbassa's vehicle was

found. The store surveillance footage showed a Black man—with tattoos and

braided hair, wearing green pants and shirt—exit from red sedan and enter

Gbassa's vehicle. The suspect, along with a second individual who also exited

the red sedan, drove away from the store in Gbassa's car.

On May 21, 2019, defendant was charged with third-degree theft by

unlawful taking, N.J.S.A. 2C:20-3(a). Trial began on April 28, 2022. The State

presented testimony from Mustapha Gbassa, Detective David Kohler, and

Detective Polite; defendant did not testify. Detective Kohler of the Burlington

County Prosecutor's Office testified that he managed the digital forensic

laboratory, and was asked to assist in recording portions of a publicly available

Facebook profile under the name of "Jay Red." Detective Kohler testified his

A-2041-22 2 office used a program to record publicly available information in social media.

Using this program, Detective Kohler captured multiple photographs regarding

"Jay Red's" public Facebook profile. The profile had publicly available images

that showed an individual with a similar appearance to the suspect around the

time of the crime. Kohler testified the images were of a "[B]lack male with a

beard, [and] dreadlocks."

Detective Polite testified upon being assigned the case, he began his

investigation by reviewing surveillance videos of the store. Thereafter, he

issued a "flash"—a notice that goes to other jurisdictions—which contained the

"suspect['s] description, a description of the car, how it was taken, [and] how

long ago it was taken, so all jurisdictions [could] look for that vehicle." Through

this method, the stolen vehicle was located on Garrett Lane.

Detective Polite testified he reviewed the surveillance videos "many

times." He reviewed the videos "[t]o identify the subjects that took the car and

to put out . . . information concerning [the suspect's] description." From the

videos, Polite noticed "the clothing description of the subject" and was able to

"get a fairly good description." He observed the suspect "was a light-skinned

[Black] male with braids, rather unique looking, with . . . [a] green top, green

bottom and black sneakers." Polite watched another video from within the store

A-2041-22 3 and he observed the suspect also had facial hair and "possibly a tattoo on his

right [fore]arm."

Detective Polite testified after getting still pictures of the suspect from the

surveillance videos, he "put[] [the pictures] out[,] so the police community

[could] look at it and . . . identify" the suspect. Thereafter, he investigated

different databases to identify the person in the still shots. In February 2019,

Detective Polite used "law enforcement databases to try to identify [the

suspect]." Polite was able to identify defendant as a suspect on February 26,

2019, through his investigation relating back to the person in green from the

surveillance videos.

At trial, Detective Polite was also shown two photographs of defendant:

(1) a picture from a driver's license, and (2) a picture from the Facebook page

of "Jay Red" as described by Detective Kohler in his testimony. Polite stated he

saw the Facebook picture as part of his investigation. He testified after obtaining

the photographs he further investigated defendant by accessing "all the law

enforcement databases with information pertaining to him" and put out another

"flash" with defendant's picture to get "some more information about him."

Through this additional "flash," Detective Polite was able to determine that at

the time of the crime, defendant lived near where Gbassa's car was recovered.

A-2041-22 4 During deliberations, the jury asked for portions of the surveillance video

from the store, and readbacks of Detective Polite's testimony. The jurors

requested a second review of one of the videos after hearing the testimony

readback. The jury then requested to have one of the videos replayed an

additional time and asked for the replay of a separate video of the store.

Thereafter, the jury returned its verdict, acquitting defendant of theft by

unlawful taking, but finding him guilty of unlawful taking of a means of

conveyance, N.J.S.A. 2C:20-10(d). Defendant was sentenced to an eighteen-

month term.

Defendant raises the following issue on appeal:

POINT I IT WAS PLAIN ERROR TO ALLOW THE INVESTIGATING DETECTIVE TO OPINE THAT THE SURVEILLANCE VIDEO DEPICTED DEFENDANT WHERE IDENTIFICATION WAS THE ONLY CONTESTED ISSUE IN THE CASE, AND WHERE THE VIDEO WAS CLEAR AND THE DETECTIVE HAD NO PRIOR KNOWLEDGE OF DEFENDANT. (Not raised below.)

"Generally, issues not raised below, even constitutional issues, will not

ordinarily be considered on appeal unless they are jurisdictional in nature or

substantially implicate public interest." State v. Walker, 385 N.J. Super. 388,

410 (App. Div. 2006). "An issue not raised below may be considered by the

A-2041-22 5 court if it meets the plain error standard or is otherwise of special significance

to the litigant, to the public, or to achieving substantial justice, and the record is

sufficiently complete to permit its adjudication." Ibid. Evidence that went

unchallenged will constitute plain error if it was "clearly capable of producing

an unjust result." R. 2:10-2. "Thus, the error will be disregarded unless a

reasonable doubt has been raised whether the jury came to a result that it

otherwise might not have reached." State v. Singh, 245 N.J. 1, 13 (2021) (citing

State v. R.K., 220 N.J. 444, 456 (2015)).

Under N.J.R.E. 701, Detective Polite's lay opinion testimony is admissible

if it: "(a) is rationally based on the witness' perception; and (b) will assist in

understanding the witness' testimony or determining a fact in issue." To satisfy

these conditions, the "witness must have actual knowledge, acquired through his

or her senses, of the matter to which [they] testif[y]." State v. Sanchez, 247 N.J.

450, 466 (2021) (quoting State v. LaBrutto, 114 N.J. 187, 197 (1989)).

Additionally, the second condition precludes "lay opinion on a matter 'as to

which the jury is as competent as [the witness] to form a conclusion." Id. at

469-70 (alteration in original) (quoting State v. McLean, 205 N.J. 438, 459

(2011)).

A-2041-22 6 Defendant argues Detective Polite was improperly permitted to "give his

opinion that the surveillance video depicted defendant stealing the victim's car."

In addition, defendant argues the testimony was prejudicial because Polite was

the investigator, giving his testimony undue weight. Since identification was

the central issue in the case, defendant further contends the testimony "unfairly

tipped the balance" and was "clearly capable of producing an unjust result."

Furthermore, defendant asserts the detective's testimony "usurped the jury's

function" and informed the jury Detective Polite "arrested defendant because

Polite believed defendant looked like the person depicted in the surveillance

video."

Relying on Sanchez, defendant contends the four factors to determine the

admissibility of lay opinion testimony weigh against the admission of the

detective's testimony. 247 N.J. at 470-73. Under Sanchez, the four factors used

for identification are: (1) how much contact the witness had with defendant; (2)

whether there was a change in defendant's appearance that the lay opinion may

clarify and be helpful to the jury; (3) whether there were additional witnesses to

identify the defendant; and (4) the quality of the video at issue. Ibid. Defendant

argues Detective Polite had no prior knowledge of defendant or knowledge of

defendant at any particular point in time. Additionally, defendant contends there

A-2041-22 7 were no additional witnesses, but the surveillance videos were clear enough that

Detective Polite's testimony and narration were unnecessary.

Furthermore, defendant argues the final jury charge also exacerbated the

error. Detective Polite did not identify the defendant in court, but instead

matched a person in the videos with a person in a computer database.

Additionally, the identification was not based on Polite's observations of the

suspect at the time of the offense, but instead of the videos, which were also

shown to the jury.

"In an identification case, it is for the jury to decide whether an eyewitness

credibly identified the defendant." State v. Lazo, 209 N.J. 9, 24 (2012).

Recently, in State v. Watson, the Court held an officer who provides video

narration, is not considered an eyewitness to the crime, but a witness that is

"commenting on an independent source of evidence," in this case the store's

surveillance video. 254 N.J. 558, 601 (2023). An investigator who has reviewed

the surveillance video many times prior to trial, who then offers testimony based

on their perception of the video, has satisfied N.J.R.E. 701's "perception" and

"personal knowledge" requirements. Ibid. Here, Detective Polite testified he

watched the videos "many times." He explained he watched the videos for

evidence and to identify the suspect. Thus, under Watson, Detective Polite

A-2041-22 8 satisfied the threshold requirement to offer lay opinion testimony about what he

saw in the surveillance videos.

Under N.J.R.E. 701, lay witness testimony also needs to assist the jury.

"An investigator who has carefully analyzed a video and can draw a jury's

attention to particular spots," such as the suspect's appearance, "can be quite

helpful to the finder of fact." Watson, 254 N.J. at 601. As part of his

investigation, detective Polite described how he took stills of the videos to try

and identify the suspect. He described the person seen in the videos, but stated

he did not know who the suspect was at the time. His description included

characteristics like the individual's beard and possible tattoos. Detective Polite

testified he began to use law enforcement databases to identify the suspect,

which led him to identifying defendant as the suspect. Polite reviewed the

pictures of defendant, as pulled from the videos and social media, and discussed

some of the characteristics between the pictures and the videos that resembled

each other.

"[I]nvestigators may not offer their views on factual issues that are

reasonably disputed. Those issues are for the jury to decide." Id. at 603 (citation

omitted). "[A] witness cannot testify that a video shows a certain act when the

opposing party reasonably contends that it does not." Ibid. Detective Polite

A-2041-22 9 never identified defendant as the individual in the videos, but instead provided

descriptions of the suspect and then drew the physical comparisons between

defendant's photo and the videos. The jury had to decide whether it was

defendant in the videos. To reach a decision, the jury watched the videos,

multiple times. The jury also observed defendant in the courtroom, when he

was asked to take off his mask and roll up his sleeves for the jury to see some

identifying characteristics.

Finally, we reject the argument that the jury instruction exacerbated the

identification as invited error. In reviewing the jury charges, defendant argued,

"Identity is an issue here. If the jury doesn't have any understanding of

identification in the jury charge, it may be difficult for them to come to the

conclusion whether or not [defendant] is the person in the video." Thus, even if

we were to conclude the charge was erroneous, trial errors "induced . . . by

defense counsel ordinarily are not a basis for reversal on appeal." State v.

Corsaro, 107 N.J. 339, 345 (1987).

To the extent we have not addressed defendant's remaining arguments, we

are satisfied they are without sufficient merit to warrant further discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

A-2041-22 10