NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4454-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JARRELL SWEET,
Defendant-Appellant. ___________________________
Submitted on September 16, 2019 – Decided October 17, 2019
Before Judges Sabatino and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 16-01-0042.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert C. Pierce, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).
PER CURIAM A jury found defendant Jarrell Sweet guilty of second-degree aggravated
assault of his ex-girlfriend, second-degree burglary, N.J.S.A. 2C:18-2(a)(1),
second-degree endangering the welfare of children through abuse, N.J.S.A.
2C:24-4(a)(2), fourth-degree cruelty and neglect of children, N.J.S.A. 9:6-3, and
third- and fourth-degree weapons charges, N.J.S.A. 2C:39-4(d) and N.J.S.A.
2C:39-5(d). He was sentenced to an aggregate fourteen-year prison term,
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant, appeals contending:
POINT I
[DEFENDANT] WAS DEPRIVED OF A FAIR TRIAL BECAUSE DETECTIVE BOTELLO TESTIFIED THAT A STILL PHOTOGRAPH OF THE ALLEGED PERPETRATOR AT THE FERRY STATION WAS "ABSOLUTELY IN FACT [DEFENDANT]" WHEN THE IDENTITY OF THE PERSON WAS A QUESTION FOR THE JURY. (NOT RAISED BELOW).
POINT II
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY WITH A SPECIFIC IDENTIFICATION CHARGE CONCERNING THE IDENTIFICATION TESTIMONY FROM G.J. AND DETECTIVE BOTELLO THAT CAME FROM THEIR OBSERVATIONS OF A STILL PHOTOGRAPH FROM THE FERRY STATION. (NOT RAISED BELOW).
A-4454-16T2 2 POINT III
[DEFENDANT] WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO OBJECT TO DETECTIVE BOTELLO'S LAY OPINION IDENTIFICATION TESTIMONY, AND HIS FAILURE TO REQUEST A JURY INSTRUCTION ON IDENTIFICATION. (NOT RAISED BELOW).
POINT IV
THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE THE SURVEILLANCE VIDEO FROM . . . 78TH STREET BECAUSE IT WAS NOT AUTHENTICATED, WHICH DEPRIVED [DEFENDANT] OF A FAIR TRIAL.
POINT V
THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION BY (1) STATING THAT THE PERSON IN THE FERRY STATION VIDEO WAS [DEFENDANT] WHO "STOPPED FOR A MINUTE TO DRINK WATER" BECAUSE HE WAS "TIRED AFTER BEATING THE CRAP OUT OF G.J[,]" (NOT RAISED BELOW)[,] AND (2) THE PROSECUTOR'S COMMENT THAT YOU HEARD THE TAXI DRIVER SAY "DUFFEL BAG," WHICH VIOLATED A PREVIOUS RULING BY THE TRIAL COURT[,] (PARTIALLY RAISED BELOW)[,] WHICH DEPRIVED [DEFENDANT] OF A FAIR TRIAL. (NOT RAISED BELOW).
POINT VI
THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT STRIKING THE TESTIMONY AND
A-4454-16T2 3 CHARGING THE JURY WITH A CURATIVE INSTRUCTION, SUA SPONTE, AFTER DETECTIVE DOWD STATED, "WHY DIDN'T YOUR CLIENT CONSENT TO A SEARCH OF HIS HOUSE TO AVOID THE POLICE HAVING TO GET A SEARCH WARRANT IF HE WAS SO WILLING TO COOPERATE?" (NOT RAISED BELOW).
POINT VII
THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO GIVE THE JURY A CURATIVE INSTRUCTION, SUA SPONTE, IMMEDIATELY AFTER DETECTIVE RECINOS STATED THAT G.J. OBTAINED A RESTRAINING ORDER AGAINST [DEFENDANT] AND THAT A JUDGE PROVIDED THE POLICE WITH PROBABLE CAUSE TO GENERATE ARREST WARRANTS. (NOT RAISED BELOW).
POINT VIII
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
For the reasons that follow, we affirm in part, reverse in part, and remand
for retrial.
I
Pertinent to the issues before us, the trial revealed the following.
A-4454-16T2 4 Defendant and G.J.'s Relationship
Defendant and G.J. 1 were co-workers for about six to eight months, who
became friends. On an evening in September 2013, defendant invited G.J. to his
house. She accepted the invitation, which resulted in them having consensual
sex. Thinking she could not become pregnant because of a medical condition,
their sex was unprotected. Nonetheless, when they had sex again weeks later,
defendant used protection. At some point, G.J. realized she was pregnant from
their first liaison, which upset defendant and he wanted her to have an abortion.
G.J. refused.
After the child was born on May 4, 2014, defendant paid child support.2
Beyond this, defendant minimally engaged in a fatherly role, having sporadic
contact with his son.
On June 15, 2015, defendant visited G.J. and his son at her North Bergen
apartment where the three had a pleasant evening. Defendant traveled from his
New York residence via ferry, supposedly, the only way he knew how to get to
1 We use initials to protect the identity of the victim. 2 Initially, defendant and G.J. reached a private child support agreement but when he failed to make timely payments, G.J. obtained a court-ordered support payment.
A-4454-16T2 5 New Jersey to visit G.J.'s apartment. Defendant's entry and departure of the
apartment was recorded on the building's surveillance camera system. During
his visit, defendant told G.J. that he did not harbor any negative feelings toward
her for not having an abortion and "was over it." Before defendant left, G.J.
called a taxi service to take him to the Port Imperial Ferry Station (the Ferry
Station) in Weehawken, so he could take the ferry back to New York. Defendant
was never violent or abusive to her, or their son, that evening or any time prior,
according to G.J.
The Attack
The evening after defendant's visit, June 16, G.J. was walking up the steps
to her fourth floor apartment with her son and six-year-old niece when she
noticed a black duffel bag and a pair of beige Timberland boots on the second
landing fire escape. Undeterred, G.J. entered her apartment. When G.J.'s sister
arrived to pick up G.J.'s niece, G.J. walked her niece to the second floor and
watched as she continued down the stairs to meet her mother.
As G.J. was returning to her apartment, she heard her son crying and
rushed up the stairs. Upon entering the apartment, she saw a black male, about
five foot, eight inches tall, dressed in all black, emerge from her bedroom. He
demanded, "where's the money?" then began attacking her by repeatedly
A-4454-16T2 6 punching and shocking her with a Taser. G.J. fought back and screamed for help
during the attack, which she recalled lasting approximately five or ten minutes.
At some point, G.J.'s neighbor, E.A., heard her screams from his
apartment on the same floor. He ran to G.J.'s apartment and attempted to open
the door, but someone inside promptly shut it. E.A. then forced the door open,
stuck his head in, and was immediately punched in the face by the assailant. He
testified the assailant was a dark skinned male, about five foot, ten inches tall,
wearing a hooded sweatshirt, gloves, and dark clothing, with a bandana over his
face. E.A. saw G.J. on the ground screaming, visibly in pain, and "very frantic."
Once the assailant unveiled a Taser and E.A. heard a "crackling" sound, he
retreated to his apartment to call the police.
After the attack was finished, G.J. made her way to the bedroom to check
on her son. G.J. testified that she could not make out the assailant's features,
but knew it was defendant based on her "intuition" and his "size and stature."
Police Investigation
North Bergen Police Officers Santiago Hernandez and Nelson Roman
responded to E.A.'s domestic assault call around 9:30 p.m. After E.A. met them
and explained what he witnessed, they went to G.J.'s apartment where they saw
that she was severely injured. G.J.'s face was completely swollen, her eyes
A-4454-16T2 7 partially forced shut, and "blood [was] everywhere." They also observed an
apartment that was in disarray, a Taser on the ground, and an open kitchen
window.
G.J and E.A. gave similar descriptions of the assailant. G.J was more
definitive, stating that despite the assailant's covered face, she was one hundred
percent sure he was defendant, and showed them a picture of him she had saved
on her cell phone. She repeated her accusations on later dates and, under cross-
examination, stated no relative or friend suggested she should identify the
defendant as her assailant.
None of the numerous witnesses interviewed were able to identify
defendant as the assailant, each giving varying accounts of his appearance. One
witness stated the assailant wore a cap, light gray button down shirt, gray pants,
and carried a duffel bag. Another witness said he saw a dark-skinned man in a
hood, and a third witness said he was wearing a "light blue surgical mask." A
taxi driver, who also testified at trial, stated the individual, who he drove to the
Ferry Station the night of the incident, was a black male with a "little bag . . .
Like a suitcase."
Surveillance video from various businesses, a residence near G.J.'s
apartment building, and the Ferry Station, also aided the police in identifying a
A-4454-16T2 8 suspect. They depicted an African-American male wearing a long sleeve red t-
shirt, dark shorts, and boots, holding a duffel bag.
There was no forensic evidence from the crime scene that suggested
defendant committed the assault. None of the various DNA samples taken from
G.J.'s apartment matched defendant. 3 Smudged fingerprints found on the
kitchen windows could not be used to identify anyone. Detectives also traced
defendant's cell phone records, which only revealed two calls made from New
York City: one at 6:33 p.m. and another at 10:33 p.m. There was no indication
from cell phone records that defendant's cell phone was near G.J.'s apartment.
The Trial
During his testimony, North Bergen Police Detective Hector Botello
stated that a still photograph of the Ferry Station surveillance footage the night
of the assault, was "a still shot of the suspect." When asked what he learned
from the video footage, the detective replied that "the person there entering was
[defendant]." Later, when asked on cross-examination how he identified
defendant as the man in the still photograph, he stated, "I know for a fact that's
[defendant] . . . can I explain why I know? . . . You don't want me to ." Defense
3 When defendant was arrested, he consented to a buccal swap to collect his DNA. A-4454-16T2 9 counsel suggested the witness tell the prosecutor on re-direct, and neither
objected nor requested that the statement be stricken from the record.
Several days later, the court sustained defendant's objection to Detective
Robert Maldonado's identification of defendant in a surveillance video from the
Ferry Station on June 15, the day he visited his son. At sidebar, the court
instructed the State that Maldonado needed to use a description of the person
and not identify him as defendant. The court rejected the State's contention that
Maldonado could identify defendant in the video even though there was no
dispute that defendant traveled by ferry to G.J.'s apartment. Maldonado
subsequently identified the person as the same person matching the description
of the man who was seen earlier in a video leaving G.J.'s apartment building.
Despite the court's directive, when Maldonado later discussed the June 16
Ferry Station video, he stated, "[t]he image we got . . . from the exit – entrance
to [the Ferry Station] is the defendant sitting here." Defendant objected, which
the court sustained. The court instructed the jury "whether or not the defendant
is seen in the video is for you the jury to determine . . . please disregard the
officer's last response."
During cross-examination, North Bergen Police Sergeant David Dowd
was questioned regarding defendant's voluntary consent to various searches and
A-4454-16T2 10 tests, including a DNA test, and the failure to obtain a search warrant for
defendant's New York City residence. At one point, Sgt. Dowd remarked, "[i]f
your client – why didn't your client consent to [a] search of his house to avoid
[us] having to get a search warrant if he was so willing to cooperate?" The court
stated, "[defense counsel] is not here to answer questions" before cross-
examination continued.
Later, during direct examination of the taxi driver, the prosecutor asked
whether he remembered if the man who took his cab on the night of the incident
was carrying anything. Through an interpreter, the taxi driver responded, "[h]e
had a little bag with him. . . . Like a briefcase." Immediately following this
statement, the prosecutor stated, "I believe I heard the witness say duffel bag a
couple times. I'm not sure[]"; to which defense counsel objected. Following a
sidebar hearing, the judge gave a curative instruction that is detailed below.
Lastly, during summation, the prosecutor stated, "you'll have an
opportunity if you want, if you choose, to hear the testimony again of [the taxi
driver]. The State submits to you[,] if you listen to it again, you will hear him
say duffel bag." Defense counsel did not object to this statement. Prior to this
statement, the prosecutor also stated:
Well, you saw the video from the night of June 16[,] 2015. You saw that video and you saw [Defendant] in
A-4454-16T2 11 the video walking straight into the terminal. He didn't stop to buy a ticket, he walked – actually he did stop. He stopped for about a minute to drink water. He must have been tired. He must have been tired after beating the crap out of [G.J.]
Again, defense counsel did not object.
Following deliberations, the jury was deadlocked on count three, the
charge of assault against E.A., but returned a verdict of guilty as to all other
counts of the indictment. The court granted the State's motion to dismiss count
three.
The court later denied defendant's motion for a new trial and sentenced
him. After merger, defendant was sentenced to an aggregate fourteen-year
prison term subject to the NERA; based upon a seven-year NERA term for
second-degree burglary, a ten-year NERA term for second-degree aggravated
assault, a four-year term for third-degree aggravated assault, and an eighteen-
month term for fourth-degree unlawful possession of a weapon, all to be served
concurrent to each other followed by a consecutive four-year term for third-
degree aggravated assault.
II
With the exception of defendant's contentions in Points III, IV, and VIII,
defendant's remaining merit brief points were not raised before the trial court,
A-4454-16T2 12 thus our plain error standard of review applies. R. 2:10-2. "Any error or
omission shall be disregarded by [this court] unless it is of such a nature as to
have been clearly capable of producing an unjust result . . . ." Ibid. In a jury
trial, the possibility of such an unjust result must be "sufficient to raise a
reasonable doubt as to whether the error led the jury to a result it otherwise might
not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Defendant carries
the burden of showing plain error. State v. Morton, 155 N.J. 383, 421 (1998).
We conclude plain error applies to defendant's identification arguments in
Point I, Det. Botello's lay opinion testimony identifying defendant in the still
photo outside the Ferry Station, and in Point II, the court's failure to give a
specific identification jury charge, which together warrant a reversal of
defendant's convictions and a new trial. This, in turn, negates any need to
address defendant's contention in Point III that counsel was ineffective due to
his failure to: (1) object to Det. Botello's lay opinion identification testimony;
and (2) request a jury instruction on identification. In addition, because of our
reversal, we need not address the excessive sentence claim made in Point VIII.
Before discussing our reasons for reversal, we first address defendant's
arguments that we reject: (1) the trial court erred in its admission of a
surveillance video (Point IV); (2) there was plain error regarding prosecutorial
A-4454-16T2 13 misconduct (Point V); (3) there was plain error regarding the State's witness's
remark about defendant's failure to consent to a search warrant (Point VI); and
(4) there was plain error regarding the State's witness's remark on the issuance
of a restraining order against defendant (Point VII).
A.
In Point IV, defendant contends the court committed reversible error
because it permitted the State to introduce video footage from a surveillance
system located at a residence near G.J.'s apartment building that was not
authenticated by the owner and operator of the surveillance system. The video
displayed a black male wearing a light gray shirt and carrying a duffel bag, who
according to the State was G.J.'s assailant. Defendant stresses the video was in
contrast to the surveillance video footage recovered from other nearby
businesses that depicted a black male wearing shorts and a red shirt. A still
picture of the suspect was taken from the video.
Defendant argues five conditions that apply to audio-recordings, State v.
Driver, 38 N.J. 255, 287 (1962), also apply to video recordings, and were not
satisfied by the State to support admission of the surveillance video footage in
question. These conditions are:
The speakers should be identified and it should be shown that[:] (1) the device was capable of taking the
A-4454-16T2 14 conversation or statement[;] (2) its operator was competent[;] (3) the recording is authentic and correct[;] (4) no changes, additions or deletions have been made[;] and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement.
[Driver, 38 N.J. at 287 (1962).]
Defendant contends these conditions were not fulfilled by the testimony of
North Bergen Police Det. Jason Apello because he failed to testify that before
placing the video onto a flash drive, he personally reviewed the video "in real
time," and that the time and date were accurate.
It is well-settled that a videotape "qualifies as a writing[ ]" under N.J.R.E.
801(e) and must be "properly authenticated" before being admitted. See State
v. Wilson, 135 N.J. 4, 17 (1994). Under N.J.R.E. 901, "[t]he requirement of
authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter is what its
proponent claims." The authentication rule "does not require absolute certainty
or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999).
"The proponent of the evidence is only required to make a prima facie showing
of authenticity." Ibid. (citations omitted). "Once a prima facie showing is made,
the [item] is admissible, and the ultimate question of authenticity of the evidence
is left to the jury." Ibid. (citations omitted).
A-4454-16T2 15 Authentication of a videotape is similar to the authentication of a
photograph. State v. Loftin, 287 N.J. Super. 76, 98 (App. Div. 1996).
"[T]estimony must establish that the videotape is an accurate reproduction of
that which it purports to represent and the reproduction is of the scene at the
time the incident took place." Ibid. (citing Wilson, 135 N.J. at 15). The
photographer or videographer need not testify "because the ultimate object of an
authentication is to establish its accuracy or correctness." Wilson, 135 N.J. at
14. Thus, "any person with the requisite knowledge of the facts represented in
the photograph or videotape may authenticate it." Ibid.
After reviewing the record, we conclude the court's decision to admit the
video was not an abuse of discretion. See State v. Brown, 170 N.J. 138, 147
(2001). Det. Apello provided the authenticity of the surveillance video footage
without the necessity of the testimony of the camera system's owner. He
testified that a week after G.J was attacked, he observed a surveillance camera
on the outside of a home near G.J.'s apartment building. He further explained
that he and other officers watched the video, which covered the date around the
time of G.J.'s attack, and saw a male with a duffel bag walking east. He
determined the video footage's date and time was accurate by checking the
video's time stamp against the time on his watch or cellphone, because
A-4454-16T2 16 "occasionally, [the surveillance equipment is] not linked up with the internet so
the times may be off, the dates could be off." He further verified the video
depicted the area near G.J.'s residence. Accordingly, there was no unjust result
by the court's admission into evidence of the video and the still photograph
captured therefrom.
B.
In Point V, defendant contends the prosecutor committed misconduct in
making two remarks during summation. Before specifying the remarks, we first
mention the principles that govern our review.
To warrant a new trial for prosecutorial misconduct, the conduct must
have been "'clearly and unmistakably improper,' and must have substantially
prejudiced defendant's fundamental right to have a jury fairly evaluate the merits
of his defense." State v. Smith, 167 N.J. 158, 181-82 (2001) (quoting State v.
Timmendequas, 161 N.J. 515, 575 (1999)). While a prosecutor "in its
summation may suggest legitimate inferences to be drawn from the record," a
prosecutor "commits misconduct when [the summation] goes beyond the facts
before the jury." State v. Harris, 156 N.J. 122, 194 (1998). In determining
whether a prosecutor's actions were sufficiently egregious, we consider: (1)
whether defense counsel made a timely and proper objection; (2) whether the
A-4454-16T2 17 remarks were promptly withdrawn; and (3) whether the judge struck the remarks
from the record and issued a curative instruction. State v. Frost, 158 N.J. 76, 83
(1999). In our review, "we consider the tenor of the trial and the responsiveness
of counsel and the court to the improprieties when they occurred."
Timmendequas, 161 N.J. at 575. If no objection was made, the prosecutor's
conduct generally will not be deemed prejudicial, as the failure to object
indicates counsel did not consider the conduct improper and deprives the trial
judge of the opportunity to take curative action. State v. Echols, 199 N.J. 344,
360 (2009).
1. The First Remark
The prosecutor urged the jury that defendant was the individual in the
Ferry Station surveillance video and "stopped for about a minute to drink water
. . . . he must have been tired after beating the crap out of [G.J.]" Defendant
stresses the sole question for the jury was the identification of the man in the
Ferry Station surveillance video, and any comments made inferring defendant
was the individual – other than those by G.J. – constitute reversible plain error.
Defendant points out that Det. Botello impermissibly identified defendant as the
man in the video, which was repeated by Detective Maldonado, and the court
attempted to remedy the issue with a curative instruction. He argues that despite
A-4454-16T2 18 this curative instruction, the prosecutor made an unsupported comment
implicating defendant as the man in the video, and therefore, reversal is
necessary.
We conclude the prosecutor's comment that it was defendant in the video
does not constitute prosecutorial misconduct. Even though identification was
the sole question for the jury, the prosecutor's argument during summation was
essentially attempting to persuade the jury that defendant was the man in the
video. The comment that it was defendant in the video does not constitute
prosecutorial misconduct because it was supported in the record by G.J.'s
admitted testimony. As for Det. Botello's identification testimony, it is
discussed below as impermissible lay opinion testimony in Section III. With
respect to the "drinking water/beating G.J." comment, the prosecutor drew an
inference, albeit a stretch, based upon the evidence. And, given the lack of an
objection, no unjust result occurred.
The record reveals this trial was fought zealously by both parties, and our
courts "have recognized that criminal trials provoke strong feelings and that
'rhetorical excesses . . . invariably attend litigation.'" State v. Smith, 212 N.J.
365, 409 (2012) (quoting State v. Williams, 113 N.J. 393, 456 (1988)). And it
is well-settled that "such excesses . . . do not always justify reversing a jury's
A-4454-16T2 19 verdict." Ibid. (citing Frost, 158 N.J. at 88). The prosecutor's remarks did not
compromise the jury's ability as fact-finders. Moreover, the court instructed the
jury that they are the sole judges of the evidence, summations are not evidence,
and we presume the jurors followed the court's instructions. State v.
Montgomery, 427 N.J. Super. 403, 410 (App. Div. 2012).
2. The Second Remark
The prosecutor's alleged second inappropriate comment pertained to the
bag carried by the male who was taken by taxi to the Ferry Station the night of
the incident. The taxi driver, through an interpreter, stated the man had a
"briefcase," not a duffel bag. The prosecutor declared, "I believe I heard [the
taxi driver] say duffel bag a couple times, I'm not sure[,]" defense counsel
objected and moved for a mistrial claiming there was a material
misrepresentation of the taxi driver's testimony. The court denied the request,
but agreed with defense counsel to give a curative instruction.
The jury was told the statement was stricken from the record and
cautioned them:
Since we are using an interpreter, you are bound by what the interpreter says the witness sa[id], [alright]?
....
A-4454-16T2 20 So, let's say somebody in the jury does understand the Arabic language and you think the witness said something because you understand it . . . you have to disregard it because the record and what you can consider is only as interpreted by the interpreter.
Now, we had an added issue here, where . . . the [prosecutor] said that [the taxi driver] said duffel bag. She is not a witness in this case. You are to completely disregard that comment. It is not proper for an attorney to tell you what the evidence is. The only thing an attorney can do is present the evidence to you by way of witnesses.
So, with respect to this witness, whatever your recollection was as to the answers to what he was carrying, as stated by the interpreter, is the only thing you may consider as evidence in this case.
During summation, this issue was raised again when the prosecutor
remarked, "[t]he State submits to you if you listen to it again, you will hear him
say duffel bag." There was no objection by defense counsel. Although the
prosecutor essentially suggested to the jury that the interpreter was wrong,
defendant now argues that the State misrepresented the taxi driver's testimony
about the type of bag the man carried.
In support of reversal, defendant cites State v. Ross, 249 N.J. Super. 246
(App. Div. 1991), where we reversed a defendant's conviction because a
prosecutor argued during summation that a ten-year-old sex abuse victim could
not fabricate the details of her account of the incident, despite the prosecutor
A-4454-16T2 21 being aware of the victim's prior history of abuse. 249 N.J. Super. at 250-52.
We held that "[f]or the prosecutor to have made that argument knowing it to be
at least arguably contrary to the facts which defendant was precluded from
adducing was improper, unfair, and, in view of the paramountcy of credibility
issue, irremediably prejudicial." Id. at 250.
Although the prosecutor's summation remark was improper because it was
a misstatement of the taxi driver's testimony as translated by the interpreter, we
cannot conclude that it was capable of causing an unjust result. We are
unpersuaded that Ross demands a reversal of defendant's conviction. There was
a basis for the prosecutor's assertion that the suspect was carrying a duffel bag
because of the testimony by other witnesses and the surveillance videos that
depicted what the suspect carried. Moreover, since the court gave a curative
instruction to the jury, and also instructed them that summations are not
evidence and they are the sole finders-of-fact, the comment was not "so
egregious that it deprived the defendant of a fair trial," and thus, reversal is not
warranted. Frost, 158 N.J. at 83; see State v. Ramseur, 106 N.J. 123, 322 (1987).
There is no indication that the jury did not follow the court's instructions. See
Montgomery, 427 N.J. Super. at 410.
A-4454-16T2 22 C.
In Point VI, defendant argues Sgt. Dowd's comment during cross-
examination, "[w]hy didn't your client consent to a search of his house to avoid
the police having to get a search warrant if he was so willing to cooperate[,]"
deprived him of a fair trial because it shifted the burden of proof onto him. In
particular, he asserts the statement compromised his presumption of innocence,
effectively requiring him to present evidence tending to rebut Sgt. Dowd's
assertions. Had his counsel objected to the statement, the court would have
given a curative instruction to the jury to remedy such an egregious error. We
are unpersuaded.
The comment by Sgt. Dowd was inappropriate because it suggested that,
had defendant consented to a search of his residence, the police would not have
had to obtain a search warrant. Defendant had no obligation to consent to a
search of his residence. Yet, the comment, which was not objected to, did not
shift the burden to defendant to prove his innocence. The prosecutor did not
make the comment, which would imply the State's trial strategy. The comment
was made by a witness in response to defense counsel's cross-examination that
informed the jury that defendant voluntarily consented to: (1) being interviewed
A-4454-16T2 23 by police; (2) providing a DNA and fingerprint sample; (3) turning over his
cellphone; and (4) cooperating with DYFS workers.
This is not like State v. Jones, 364 N.J. Super. 376 (App. Div. 2003),
which is cited by defendant to support reversal of his conviction. There, we
reversed the defendant's conviction because the prosecutor, in response to the
defendant's argument that a fingerprint analysis was never completed on the
firearm allegedly used to commit the crime, summed-up stating, "[a]nd while
the defense never has a burden of proof, when they put on a case[,] stop and ask
yourself why isn't it they dusted the gun for prints to disprove that his
fingerprints were on there? Maybe the defendant knows something we don't,
that it is his gun." Jones, 364 N.J. Super. at 382. Defendant did not object to
the comments, but we determined they were "so clearly erroneous and so capable
of affecting the jury's deliberations that we are constrained to reverse [the]
defendant's conviction." Ibid.
We cannot agree with defendant that this fleeting comment made by a
witness during a heated cross-examination was reversible error and created an
unjust result that denied defendant a fair trial.
A-4454-16T2 24 D.
In Point VII, defendant contends plain error occurred when New Bergen
Police Officer Carmen Recinos "testified that, based upon G.J.'s statement, she
obtained a restraining order, coupled with her remark that a judge provided the
police with probable cause to arrest [defendant] . . . ." Defendant further
maintains the court failed to issue a curative instruction considering "the
testimony is much more egregious because Officer Recinos stated that a family
court judge found G.J.'s testimony credible and granted her a restraining order."
Defendant reasons that plain error occurred because with Officer Recinos's
"restraining order and arrest warrant testimony, the jury could infer that
[defendant] committed the offenses and was a present danger to hurt or even kill
G.J. and her young son."
While on direct examination, Officer Recinos was discussing a statement
he obtained from G.J. during an interview after defendant had given a statement
at the police station, when the following colloquy ensued:
Q: Based on the statement that you got from [G.J.], what did you do?
A [(Recinos)]: She had requested a restraining order. So we called one of our judges on the scene being that she couldn't walk that much still. He granted her the restraining order.
A-4454-16T2 25 Q: And what did you do after that?
A [(Recinos)]: After that we headed back to headquarters and we advised the [j]udge . . . of her statement and what she said, and he provided us with probable cause to generate warrants to arrest [defendant].
We find no merit to defendant's contention that Officer Recinos's
testimony had the ability to influence the jury to find defendant guilty of
attacking G.J. and the related offenses because a restraining order and arrest
warrant were issued. Officer Recinos's brief testimony was merely an outline
of the process that led to defendant's arrest. See State v. Marshall, 148 N.J. 89,
240 (1997), (holding there was no authority in support of a rule that "the jury
should be shielded from knowledge that search warrants have been issued in a
criminal matter because the prior judicial determination of probable cause may
influence the jury to assume guilt."). The prosecutor did not harp on this process
in her summation or, for that matter, have any other witness echo this testimony.
No unjust result occurred in defendant's trial due to Officer Recinos's comments.
III.
Because defendant's respective arguments in Points I and II, concerning
Det. Botello's lay opinion testimony identifying defendant in a still photo, and
A-4454-16T2 26 the trial court's failure to give a specific identification jury charge , are
interrelated, we address them together.
Stressing that Det. Botello never actually met defendant and was only
familiar with him in connection with the investigation and reviewing
surveillance video footage, defendant argues the State improperly bolstered
G.J.'s testimony that defendant was her masked assailant based upon her
"intuition", by introducing the inadmissible lay opinion of Det. Botello that
defendant was the individual in the still photograph from the Ferry Station
surveillance video footage. G.J. testified that the man in the photograph, which
she had never seen before, was defendant.4 Defendant maintains that because
Det. Botello was not sufficiently familiar with him, he impermissibly
encroached on the jury's responsibility of identifying defendant in the
photograph.
Defendant further argues the court committed reversible error because it
failed to instruct the jury on identification, which was pertinent to the
identifications made by G.J. and Det. Botello, thereby, denying defendant of his
4 According to G.J.'s grand jury testimony, the photograph was shown to her at her sister's house four days after the assault, and she identified the man as defendant. The jury was not made aware of this identification. A-4454-16T2 27 right to a fair trial. He submits the court had the duty "to instruct the jury as to
fundamental principles of law which control the case," and that dut y was not
extinguished by the failure to request a specific identification charge.
We are guided by the following principles. Lay opinion testimony is
permitted when it is "rationally based on the perception of the witness" and "will
assist in understanding the witness' testimony or in determining a fact in issue."
N.J.R.E. 701. Lay opinion testimony "is not a vehicle for offering the view of
the witness about a series of facts that the jury can evaluate for itself or an
opportunity to express a view on guilt or innocence." State v. McLean, 205 N.J.
438, 462 (2011). "[T]estimony in the form of an opinion, whether offered by a
lay or an expert witness, is only permitted if it will assist the jury in performing
its function." McLean, 205 N.J. at 462. "The [r]ule does not permit a witness
to offer a lay opinion on a matter . . . as to which the jury is as competent as he
to form a conclusion[.]" Id. at 459 (internal quotation marks and citation
omitted). Furthermore, a police witness is not permitted to offer an opinion
regarding a defendant's guilt. State v. Frisby, 174 N.J. 583, 593-94 (2002)
(disapproving police testimony that opined regarding innocence of one person
and inferentially the guilt of the defendant); State v. Landeros, 20 N.J. 69, 74-
A-4454-16T2 28 75 (1955) (holding that a police captain's testimony that defendant was "as guilty
as Mrs. Murphy's pet pig" caused "enormous" prejudice warranting reversal).
These principles apply to opinions regarding an offender's identity. "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).
In Lazo, the issue was whether it was proper for a detective with no
personal knowledge of the crime to testify at trial that he included the
defendant's photo in a photo array because the defendant's photo resembled the
composite sketch of the assailant. Id. at 12. The issue in Lazo had been fully
raised and argued at trial and, thus, was not raised as plain error as it is here.
Our Supreme Court noted that "[t]he victim's identification was the only
evidence linking defendant to the crime. No physical evidence or other
corroboration of the identification was presented." Id. at 15. The jury in Lazo
convicted the defendant of second-degree robbery and second-degree conspiracy
to commit robbery. Id. at 16.
The Court held that the detective's testimony violated N.J.R.E. 701
because his opinion was not based on personal knowledge, and the testimony
only served to bolster the victim's identification, which was the sole basis of the
defendant's conviction. Id. at 24. The detective did not witness the crime, did
A-4454-16T2 29 not know the defendant, and relied solely on the victim's description. Ibid. "Nor
was there a change in appearance that the officer could help clarify for the jurors;
they could have compared the photo and the sketch on their own. Finally, the
sole eyewitness told the jury what he observed firsthand." Ibid.
The Court reversed, holding that a police officer may not "improperly
bolster or vouch for an eyewitness' credibility and thus invade the jury's
province." Ibid. Because the identification was the only evidence against the
defendant, the Court could not "conclude that the error was harmless." Id. at 27.
The Lazo Court reviewed federal authority on whether a lay police witness
may opine that a defendant is depicted in a crime scene photograph. The Court
noted that one federal court held lay opinion "permissible where the witness has
had sufficient contact with the defendant to achieve a level of familiarity that
renders the lay opinion helpful." Id. at 22 (internal quotation marks and citation
omitted). Whether the opinion is helpful in turn depends on the witness's
knowledge of the defendant's appearance at the time of the crime, the defendant's
dress, and "whether the defendant disguised his appearance during th e offense
or altered her looks before trial, and whether the witness knew the defendant
over time and in a variety of circumstances." Ibid. (internal quotation marks
and citation omitted). "[C]ourts recognize that when there is no change in
A-4454-16T2 30 defendant's appearance, juries can decide for themselves—without
identification testimony from law enforcement—whether the person in a
photograph is the defendant sitting before them." Id. at 23.
The Court cited a decision finding it error to admit an officer's opinio n
that a defendant was depicted in a bank surveillance photo where the officer's
opinion "was based entirely on his review of photographs . . . and witnesses'
descriptions . . . ." Ibid. (internal quotation marks and citation omitted).
Another factor in determining whether to permit a lay opinion on identification
is "whether there are additional witnesses available to identify the defendant at
trial." Ibid.
The Court cited favorably to the Law Division's 1981 decision in Carbone.
In Carbone, the defendant was charged with five armed bank robberies, and the
State secured statements from individuals who knew the defendant and who
identified him from photographs taken by the banks' surveillance cameras. 180
N.J. Super. at 96-97. Citing cases from other jurisdictions, the Law Division,
considered a number of factors in reaching its determination that the proposed
identifications were admissible, including: (1) the fact that the defendant's
appearance had changed since the time of the offense charged; (2) the lack of
eyewitnesses to the offenses charged; (3) the extent of the potential witnesses'
A-4454-16T2 31 familiarity with the defendant, particularly at the time of the offenses charged;
and (4) the basis of the witnesses' knowledge of the defendant. Id. at 97-100.
Although New Jersey law is sparse on the subject of the admissibility of
lay opinion testimony identifying a defendant from surveillance video or
surveillance photographs, there is abundant case law from other jurisdictions on
the subject. Those cases generally hold that such testimony may be admissible
after considering a variety of factors, including a number of the factors set forth
under New Jersey case law in Lazo and Carbone.5
5 See, e.g., United States v. White, 639 F.3d 331, 335-36 (7th Cir. 2011); United States v. Contreras, 536 F.3d 1167, 1170-73 (10th Cir. 2008); United States v. Beck, 418 F.3d 1008, 1013-15 (9th Cir. 2005); Nooner v. State, 907 S.W.2d 677, 684-86 (Ark. 1995); People v. Leon, 352 P.3d 289, 312-13 (Cal. 2015); Robinson v. People, 927 P.2d 381, 382-85 (Colo. 1996) (en banc); Young v. United States, 111 A.3d 13, 15-16 (D.C. 2015); Glenn v. State, 806 S.E.2d 564, 568-69 (Ga. 2017); State v. Barnes, 212 P.3d 1017, 1020-26 (Idaho Ct. App. 2009); People v. Thompson, 49 N.E.3d 393, 402-09 (Ill. 2016); Gibson v. State, 709 N.E.2d 11, 15-16 (Ind. Ct. App. 1999); Morgan v. Commonwealth, 421 S.W.3d 388, 391-92 (Ky. 2014); State v. Berniard, 163 So.3d 71, 89-91 (La. Ct. App. 2015); State v. Robinson, 118 A.3d 242, 247-52 (Me. 2015); Moreland v. State, 53 A.3d 449, 453-56 (Md. Ct. Spec. App. 2012); Commonwealth v. Vacher, 14 N.E.3d 264, 278-79 (Mass. 2014); Lenoir v. State, 222 So.3d 273, 276-78 (Miss. 2017) (en banc); State v. Gardner, 955 S.W.2d 819, 823-25 (Mo. Ct. App. 1997); Rossana v. State, 934 P.2d 1045, 1048-49 (Nev. 1997); State v. Sweat, 404 P.3d 20, 22, 24-27 (N.M. Ct. App. 2017); People v. Sanchez, 941 N.Y.S.2d 599, 606 (App. Div. 2012), aff'd, 991 N.E.2d 698 (N.Y. 2013); State v. Patterson, 791 S.E.2d 517, 520-23 (N.C. Ct. App. 2016), review denied, 794 S.E.2d 328 (N.C. 2016); State v. Fripp, 721 S.E.2d 465, 467-69 (S.C. Ct. App. 2012); Woods v. State, 13 S.W.3d 100, 101-05 (Tex. Crim. App. 2000); State v.
A-4454-16T2 32 A few courts from other states have concluded that lay opinion testimony is
more likely to be admissible when the surveillance video is of passable quality,
but is grainy or shows only a partial view of the person of interest. See, e.g.,
Nooner, 907 S.W.2d at 685; Glenn, 806 S.E.2d at 569; Barnes, 212 P.3d at 1025;
Thompson, 49 N.E.3d at 404. In such cases, the lay witnesses' opinions become
more valuable to the jury, based upon their superior knowledge of the
defendant's appearance, particularly around the time of the crime.
Defendant also argues as plain error that reversal should be granted
because the trial court failed to give any instruction on identification. In
particular, he cites Model Jury Charge (Criminal), "Identification: In-Court and
Out-of-Court Identifications" (Revised June 5, 2006), or Model Jury Charge
(Criminal), "Identification: No In-Court and Out-of-Court Identifications Out-
of-Court Identification Only" (Approved October 26, 2015).
It is undisputed that "[a]ppropriate and proper charges to a jury are
essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial court
must guarantee that jurors receive accurate instructions on the law as it pertains
George, 206 P.3d 697, 700-02 (Wash. Ct. App. 2009), review denied, 217 P.3d 783 (Wash. 2009). But see State v. Finan, 881 A.2d 187, 191-94 (Conn. 2005); Ibar v. State, 938 So.2d 451, 462 (Fla. 2006). A-4454-16T2 33 to the facts and issues of each case. State v. Smith, 210 N.J. Super. 43, 54 (App.
Div. 1986). A trial court is vested with discretion in delivering the jury
instructions that are most applicable to the criminal matter before it." State v.
Funderburg, 225 N.J. 66, 80 (2016) (citing State v. Ernst, 32 N.J. 567, 583-84
(1960)). "An erroneous jury charge when the subject matter is fundamental and
essential or is substantially material is almost always considered prejudicial."
State v. Maloney, 216 N.J. 91, 104-05 (2013) (internal quotation marks and
citation omitted). We apply a presumption that improper instructions are
reversible error in criminal cases. Id. at 105. However, that presumption is
overcome if the error is "'harmless beyond a reasonable doubt.'" Ibid. (quoting
State v. Collier, 90 N.J. 117, 123 (1982)).
"Plain error in the context of a jury charge . . . [must be] sufficiently
grievous . . . to convince the court that of itself the error possessed a clear
capacity to bring about an unjust result." State v. Hyman, 451 N.J. Super. 429,
455 (App. Div. 2017) (alterations in original) (quoting State v. Torres, 183 N.J.
554, 564 (2005)). "Under the plain error standard, [the] 'defendant has the
burden of proving that the error was clear and obvious and that it affected his
[or her] substantial rights.'" State v. Koskovich, 168 N.J. 448, 529 (2001)
(quoting State v. Morton, 155 N.J. 383, 421 (1998)). The plain error analysis of
A-4454-16T2 34 an erroneous jury charge mandates that the reviewing court examine the charge
as a whole to determine its overall effect. State v. McKinney, 223 N.J. 475, 494
(2015).
There is presently no New Jersey model jury charge on evaluating lay
witness opinion testimony in this particular context. The model charges on
identification evidence specifically address only identifications made by
eyewitnesses to the crime; they do not address identifications made based upon
surveillance video of a crime. Model Jury Charge (Criminal), "Identification:
In-Court Identification Only" (rev. July 19, 2012, eff. Sept. 4, 2012); Model Jury
Charge (Criminal), "Identification: Out-of-Court Identification Only" (rev. July
19, 2012, eff. Sept. 4, 2012); Model Jury Charge (Criminal), "Identification: In-
Court and Out-of-Court Identifications" (rev. July 19 2012, eff. Sept. 4, 2012).
There is, however, a federal jury charge on lay witness opinion. See Modern
Federal Jury Instructions – Criminal, 2.10, "Opinion Evidence (Lay Witnesses)
(F.R.E. 701)" (2018). 6
6 Witnesses are not generally permitted to state their personal opinions abou t important questions in a trial. However, a witness may be allowed to testify to his or her opinion if it is rationally based on the witness's perception and is helpful to a clear understanding of the witness's testimony or to the determination of a fact in issue.
A-4454-16T2 35 C.
Applying these principles leads us to conclude that the combination of
Det. Botello's testimony identifying defendant as the man in the still photograph
at the Ferry Station on the night of the assault, and the absence of any
identification jury instructions, were clearly capable of creating an unjust result
requiring a new trial.
In this case, defendant's guilt turned on identification. There was no
physical evidence linking defendant to G.J.'s attack, such as DNA or
fingerprints. Defendant's cell phone records did not indicate he was near the
vicinity of G.J.'s apartment the night of the attack. Although witnesses gave
physical descriptions of the assailant, only G.J testified that defendant was her
assailant. Despite the fact that his face was covered, it was her "intuition," based
upon knowing him from their work and personal relationship, which led her to
conclude he was her attacker.
In this case, I am permitting (name) to offer (his)(her) opinion based on (his)(her) perceptions. The opinion of this witness should receive whatever weight you think appropriate, given all the other evidence in the case and the other factors I will discuss in my final instructions for weighing and considering whether to believe the testimony of witnesses.
Modern Federal Jury Instructions-Criminal 2.10 (2019)
A-4454-16T2 36 There are no facts in the record to indicate that Det. Botello had any
familiarity with defendant prior to or during his investigation into G.J. 's attack
enabling him to identify defendant from a still photograph of the video. 7 The
detective neither witnessed the crime nor knew defendant prior to the incident;
apparently relying solely on the descriptions provided by G.J. and other
witnesses regarding defendant's clothing and physical build. He seemingly had
no more insight into the suspect's identity then members of the jury.
Our concern regarding Det. Botello's testimony is highlighted by the fact
that when Det. Maldonado subsequently identified defendant in the same Ferry
Station video, the court struck it from the record based on defendant's timely
objection. The court's instruction that it is the jury's role to decide whether the
defendant is in the video (as well the still photograph taken therefrom) equally
applies to Det. Botello's testimony. Clearly, the court was troubled about the
impact of this lay opinion testimony.
Consequently, it appears that Det. Botello's identification testimony
served only to bolster G.J.'s testimony and was, therefore, inadmissible. This,
however, is not the end of our analysis of his testimony's impact.
7 Since neither provided a dvd of the surveillance video nor a copy – not a photocopy – of the still photograph, we have no way of evaluating defendant's claim that it was a grainy and unclear image of the suspect. A-4454-16T2 37 The inadmissibility of Det. Botello's testimony is compounded by the jury
not receiving any instructions on how it should evaluate identification
testimony. Despite our state's absence of any model jury charge on evaluating
lay witness opinion testimony, it is incumbent upon the trial court to fashion
charges that address the law and facts of a particular case. The court should
have developed charges by examining our model jury charges, and possibly
considered adapting related jury charges from other jurisdictions that were in
place at time of trial. In doing so, the jury would have been given guidance on
how to evaluate Det. Botello's identification testimony of defendant in the still
Considering both the allowance of Det. Botello's identification testimony
and the lack of jury instructions on how to assess his testimony, we do not find
these errors harmless. Identification of G.J's assailant was the only trial issue
and given the limited evidence against defendant, the combination of these two
errors were capable of producing an unjust result. Accordingly, we reverse his
convictions and remand for retrial.
Affirmed in part, reversed in part and remanded for retrial.
A-4454-16T2 38