PTI denial without full evaluation was error here STATE v. JAMAL C. NURSE
______________________________
Submitted December 10, 2018 – Decided January 2, 2019
Before Judges Sabatino, Haas and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 15-07-0704.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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-3528-16T3
PER CURIAM
A Morris County grand jury charged defendant in a seven-count
indictment with two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2)
(counts one and two); second-degree burglary, N.J.S.A. 2C:18-2(b)(2) (count
three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) (count four); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b) (count five); and two counts of second-degree kidnapping,
N.J.S.A. 2C:13-1(b)(1) (counts six and seven).
Prior to trial, the judge 1 denied defendant's motion to suppress
identification evidence provided by his coworkers, who told the police that
defendant was the individual seen in a surveillance video connected to the
offenses.
Following a multi-day trial, the jury convicted defendant on counts one
through five, and of the lesser-included offense of false imprisonment, a
disorderly persons offense under N.J.S.A. 2C:13-3, on counts six and seven.
The judge sentenced defendant to concurrent twelve-year terms on counts one
and two, subject to the 85% parole ineligibility provisions of the No Early
1
One judge handled the pre-trial motions and a different judge presided at the
trial and sentencing. Because we have no reason to distinguish between the
judges involved for purposes of this opinion, we do not.
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2
Release Act (NERA), N.J.S.A. 2C:43-7.2; concurrent six-year terms on counts
three, four,2 and five, subject to NERA; and concurrent six-month terms on
counts six and seven. Accordingly, defendant's aggregate sentence was twelve
years, subject to NERA.
On appeal, defendant raises the following contentions:
POINT I
THE OUT-OF-COURT AND IN-COURT
IDENTIFICATIONS WERE SUGGESTIVE,
INADMISSIBLE, AND VIOLATED DUE PROCESS
BECAUSE THE WITNESSES AND
ADMINISTRATOR ALREADY SUSPECTED
[DEFENDANT] OF THE ROBBERY WHEN THE
WITNESSES IDENTIFIED HIM AS THE FACELESS
MAN ON A GRAINY SURVEILLANCE VIDEO.
U.S. CONST. AMEND. XIV; N.J. CONST. ART. I,
PARA. 1.
A. Arguments and Testimony at the Pre-Trial
Suppression Hearing.
B. The Out-of-Court and In-Court Identifications
Were Inadmissible.
2
In rendering his oral sentencing decision, the judge stated that count four
should merge into counts one, two, and three. However, the judgment of
conviction (JOC) failed to reflect this merger. In Point V of his appellate brief,
defendant argues that the JOC should have included this merger. The parties
agree, and we concur, that merger of count four into the other counts was
appropriate. Therefore, we remand to the trial court for the entry of a corrected
JOC to address this mistake.
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C. A New Trial Should Occur Because the
Admission of the Identifications Was Harmful
Error.
D. Alternatively, a New Suppression Hearing
Should Occur.
POINT II
A NEW TRIAL SHOULD OCCUR BECAUSE THE
COURT IMPROPERLY REFUSED TO GIVE JURY
INSTRUCTIONS APPROPRIATE TO WHEN AN IN-
COURT IDENTIFICATION IS PRECEDED BY AN
OUT-OF-COURT IDENTIFICATION, EVEN
THOUGH THAT WAS THE SITUATION HERE.
U.S. CONST., AMEND. XIV; N.J. CONST. ART. I,
PARA. 1.
POINT III
AN INVESTIGATING DETECTIVE WHO DID NOT
KNOW [DEFENDANT] WAS IMPROPERLY
PERMITTED TO OPINE THAT [DEFENDANT'S]
APPEARANCE WAS SIMILAR TO THE ROBBER'S.
U.S. CONST. AMEND. XIV; N.J. CONST. ART. I,
PARA. 1.
POINT IV
THE COURT IMPROPERLY REFUSED TO GIVE A
COOPERATING WITNESS INSTRUCTION
REGARDING A WITNESS WHO TOLD OFFICERS
THAT SHE DROVE [DEFENDANT] TO THE
ROBBERY AND WHOM OFFICERS THREATENED
WITH CRIMINAL CHARGES. U.S. CONST.
AMEND. XIV; N.J. CONST. ART. I, PARA. 1.
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POINT V
THE WRITTEN [JOC] SHOULD BE CORRECTED
TO MERGE GUN POSSESSION FOR AN
UNLAWFUL PURPOSE [UNDER COUNT FOUR OF
THE INDICTMENT] WITH THE SUBSTANTIVE
OFFENSES [SET FORTH IN COUNTS ONE, TWO,
AND THREE] THAT WERE THE PURPOSE OF THE
GUN POSSESSION.
After reviewing the record in light of the contentions advanced on appeal,
we affirm defendant's convictions and aggregate sentence, but remand to the
trial court to correct the JOC to reflect the merger of count four into counts one,
two, and three.
I.
At approximately 11:00 p.m. on July 19, 2014, two employees of a
children's store, M.D.3 and M.W., left the business after it closed for the night.
As they walked away, a man wearing a black stocking over his face rushed
toward them, brandishing a handgun. The employees could not see the man's
face, but his hands were uncovered. They described him as a very tall, thin man
with a light complexion. He was wearing a black hoodie and ripped jeans.
The man ordered the employees to go back into the store and stated, "get
me to the safe, hurry up, be quiet." Once they reached the safe in the manager's
3
We use initials to identify the store employees in order to protect their privacy.
A-3528-16T3
5
office, the man directed the employees to take the money out of the safe and put
it in a black bag the man was carrying. The man also helped load the money
into the bag. Some of the money was stacked and wrapped in blue, paper bands.
Once the employees were done, the man ordered them to get under a desk while
he fled the scene. The employees then called the police. The entire event was
captured on the store's security cameras.
Detective Frank Franco was the lead detective on the investigation that
followed. In addition to the store's security video, Detective Franco obtained
surveillance video from several nearby businesses. The first of two important
pieces of evidence came from the video taken from outside a car wash. On this
video, the detective could see a white Honda parked in the car wash's parking
lot before the robbery. There were two people in the car. The car remained in
the lot for about thirty minutes, until it moved outside the children's store.
Shortly before the robbery occurred, a man could be seen running toward the
store. The car then left the scene.
The police later determined that the car belonged to Nicole Biggs. She
testified at trial that she met defendant on "social media" in the weeks prior to
July 19, and the two sometimes hung out together. On the night of the robbery,
defendant called Biggs and asked her to help him pick up something from a
A-3528-16T3
6
friend. Biggs agreed, and arrived at defendant's house around 9:00 p.m. Once
he got into Biggs's car, defendant asked her to drive him to a hotel parking lot,
where he called someone from a cellphone. He then told her to go to a
department store. Biggs stated that defendant told her buy him some gloves at
the store, but she refused to do so. However, she did go into the store to use the
bathroom. When she got back into her car, she saw that defendant had changed
his clothes and was now wearing a black, hooded sweatshirt and jeans.
Defendant also had a piece of duct tape on his face.
After making another phone call, defendant told Biggs to take him to the
car wash, where they parked for about thirty minutes. Defendant placed another
phone call, and directed Biggs to drive around the children's store, and then to
the parking lot of a plumbing company nearby. Defendant got out of the car and
told Biggs to wait for him. Biggs testified that she did not see defendant after
that. She called and texted him to say that she was going to leave if he did not
come back. When defendant failed to reply, Biggs drove away. As discussed
above, many of the movements of her car outside the children's store that she
described at trial were captured by surveillance cameras.
Later that night, defendant called Biggs and told her it was "messed up"
that she had left him, but he had gotten home anyway. Two days later, defendant
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7
asked Biggs when he could get his "stuff back." 4 After some back and forth
between them, Biggs took defendant's things to his house and left them in a bag
near his front door.
The two then began to argue with each other in a series of text messages.
During this exchange, defendant boasted of how much money he had, and sent
Biggs a photograph of himself holding six stacks of money on his lap that were
wrapped together with blue, paper bands. 5 Defendant was wearing red, Polo-
brand boxer shorts in the photograph.
The next important item of evidence was a surveillance video Detective
Franco obtained from the plumbing company. In this video, the detective saw
several views of a very tall, thin man moving around the area near the time of
the robbery. The man's face was not visible. However, the detective could see
that the man was wearing a Cincinnati Reds baseball cap, and his hair was styled
in short braids that stuck out of the hat. The man wore a light t-shirt and ripped
blue jeans, and carried a black bag. Detective Franco believed that the
4
Defendant had left a jacket and sneakers in Biggs's car after he changed his
clothes in the department store parking lot.
5
Copies of the pertinent texts and the photograph were obtained from Biggs's
phone and entered in evidence at the trial.
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appearance of the man seen in the video was consistent with the descriptions
M.D. and M.W. provided of the robber.
The day after the robbery, Detective Franco spoke to M.F., an investigator
who worked for the children's store. Suspecting that the robbery was an "inside
job," the detective asked M.F. if the store had any "problem employees." M.F.
had spoken to M.D., M.W., and other employees at the store about this issue
earlier in the day. M.F. identified defendant as an employee who had recently
stopped showing up for work. 6 Defendant had worked part-time on the sales
floor and in the "back of the house" for different shifts, including closing.
Defendant was 6'6" tall, and weighed only 180 pounds. He had a light
complexion, styled his hair in short braids, and frequently wore a baseball cap
and jeans while working.
Several days after the robbery, Detective Franco called M.D. and M.W.
and asked them to come to the police station because he wanted to show them a
video. The detective testified that he did not tell the two employees that the
video was taken from the plumbing company's surveillance system, or that he
6
M.F. also identified a second individual, who had recently applied for a job at
the store but did not get it. However, this individual was short and stocky and,
therefore, was never considered a suspect.
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suspected that the person depicted in the video was the robber or defendant.
Instead, he simply instructed them to look at the video and tell him what they
saw.7
At trial, the prosecutor played the surveillance video and asked M.D. and
M.W. if they could identify the person seen in it. Both employees testified that
the man was defendant. They based their in-court identifications on their
knowledge of defendant's appearance from when he worked with them at the
store.
The police obtained a search warrant and searched defendant's home.
They found a Cincinnati Reds baseball cap and a pair of red, Polo-brand boxer
shorts. The police seized four cell phones, but were not able to recover any
relevant data from them. No forensic evidence, such as fingerprints or DNA,
was discovered.
7
As discussed in greater detail in Section II of this opinion, M.D. and M.W.
identified defendant as the man in the video as part of the out-of-court
identification procedure Detective Franco conducted. However, the State
presented no evidence concerning the employees' out-of-court identifications of
defendant at trial, even though the motion judge had denied defendant's pre-trial
motion to suppress this evidence.
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II.
In Point I of his brief, defendant argues that the trial judge incorrectly
denied his pre-trial motion to suppress the identifications M.D. and M.W. made
of him after viewing the plumbing company surveillance video at the police
station. Defendant contends that the judge erred by determining that the out-of-
court identifications, and the in-court identifications the two employees made at
trial, were admissible as lay opinion testimony under N.J.R.E. 701. Instead,
defendant asserts that the judge should have excluded this evidence under State
v. Henderson, 208 N.J. 208 (2011), because the procedures the police used to
obtain the identifications were impermissibly suggestive and deprived him of
his constitutional rights to due process and a fair trial under U.S. Const., amend.
XIV, and N.J. Const. art. I, ¶ 1. We disagree.
The judge conducted a Rule 104 evidentiary hearing prior to ruling on
defendant's suppression motion. Detective Franco was the only witness, and his
account of how the identifications occurred was consistent with, but even more
detailed than, his trial testimony.
As noted above, Detective Franco obtained a four-camera view,
surveillance video from the plumbing company. The quality of the video was
"grainy," but there were several fairly clear views of a man in the area near the
A-3528-16T3
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children's store. One of the cameras showed a front view of a man wearing
ripped jeans, a light t-shirt, and a Cincinnati Reds hat. This angle showed the
man crouching and walking. A second camera captured the man, his clothing,
and his "distinctive twist" hairstyle. A third camera enabled the viewer "to
observe this person's gait or style of walking[.]"
After obtaining this video, Detective Franco spoke to M.F., the children's
store security investigator, who identified defendant as a possible disgruntled
employee. The detective believed that the description he obtained of defendant
was consistent with the physical appearance of the man in the surveillance video
and the victims' description of the robber from the night of the crime. However,
the detective could not be sure defendant was the man in the video because he
did not know him.
Accordingly, Detective Franco reached out to M.D., M.W., and three other
employees of the children's store. The detective chose these individuals because
they had worked with defendant. He separately asked each employee to come
to police headquarters to view a video.
At police headquarters, each employee was brought into the sergeant's
office, which was a private area with a computer that was capable of showing
the plumbing company video on a desktop monitor. Detective Franco was in
A-3528-16T3
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the room, along with two other officers. All of the employees were kept apart
from each other.
None of the employees had ever seen the video before, and Detective
Franco did not tell them anything in advance about the subject of the video, that
it was a surveillance video from the plumbing company, or that it might depict
a possible suspect in the robbery. He simply explained that he was going "to
show them a video and once the video is played[,] I would like them to just tell
me what they saw." He then played the plumbing company surveillance video
for each employee. 8 Detective Franco's purpose in showing these individuals
the video was "strictly to identify the individual in the . . . video." The
employees were permitted to view the video as many times as they wanted and
to enlarge it if desirable. This process was not recorded because the sergeant's
office was not equipped to do so.
After an employee watched the video, he or she was taken to a different
room, where they gave a video-recorded statement. M.D. and M.W. both told
the officers that defendant was the man shown in the plumbing company
8
Detective Franco testified that he did not show the surveillance video of the
actual robbery to M.D., M.W., or the other employees because the robber was
wearing a mask and his hair was covered. In contrast, the plumbing company
video showed several views of the man, in both stationary and walking positions,
his clothes, height, and hair style.
A-3528-16T3
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surveillance video. In particular, M.D. stated that the "twist" hairstyle worn by
the man, his mannerisms, and the length of his arms matched defendant. M.W.
also recognized defendant as the man in the video, and remarked that his hair
style and mannerisms were a match. 9
At the conclusion of the hearing, the judge rendered a thorough oral
decision denying defendant's motion to suppress the identifications made b y
M.D. and MW. In so ruling, the judge found that Detective Franco's testimony
was "credible and reliable as to the source of what was done [during the
identification process] and how it was done." The judge further found that the
detective had done nothing to interfere with the employees' independent ability
to view the contents of the video and provide their opinions on what they saw.
The judge concluded that the employees would be permitted to provide
lay testimony at trial under N.J.R.E. 701 that defendant was the man shown in
the plumbing company surveillance video. Under N.J.R.E. 701, "[i]f a witness
is not testifying as an expert, the witness' testimony in the form of opinions or
inferences may be admitted if it (a) is rationally based on the perception of the
9
Two of the other three employees identified defendant as the man in the
plumbing store surveillance video. One of the employees could not make a
positive identification of the man. Neither party called any of these three
employees as a witness at the trial.
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witness and (b) will assist in understanding the witness' testimony or in
determining a fact in issue." Also, under N.J.R.E. 704, "[t]estimony in the form
of an opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact." Opinion testimony
"is subject to exclusion if the risk of undue prejudice substantially outweighs its
probative value." State v. Summers, 176 N.J. 306, 312 (2003).
A witness who can demonstrate familiarity with the defendant may be
permitted to testify regarding identification. See State v. Lazo, 209 N.J. 9, 22-
24 (2012) (citing State v. Carbone, 180 N.J. Super. 95 (Law. Div. 1981)). For
example, in Carbone, the court admitted the State's lay witness testimony of
personal photographic identifications of the defendant before the jury by
individuals who did not witness the crime, but nevertheless had personal
knowledge of and familiarity with the defendant's appearance at the time the
defendant committed the offense charged. Id. at 96-100. Underlying the court's
decision were "crucial factors" such as the lack of available eyewitness
identification and the change of the defendant's appearance since the time of the
crime. Id. at 100.
Citing Carbone, the judge found that the plumbing company surveillance
video, although grainy in spots, contained "the type of imagery that [he] would
A-3528-16T3
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characterize as showing enough features and detail of a person to be able to give
a pretty good general description of the person." Although the judge stated that
neither he nor the detective would be able identify defendant from the video,
M.D. and M.W. were in a "different position" because they worked with and
knew defendant prior to viewing it. Thus, the judge determined that defendant's
coworkers could rationally and competently form an opinion that they
recognized the person in the video.
The judge also addressed the issue of suggestiveness, finding that there
was no undue suggestibility in the identification procedure and that the
detective's approach was sensible even though this was not a traditional
identification process. In so finding, the judge recognized that this was not a
double-blind procedure since Detective Franco already suspected defendant;
however, the judge noted that the detective was careful not to taint the
identification.
When reviewing an order denying a motion to bar identification evidence,
our standard of review "is no different from our review of a trial court's findings
in any non-jury case." State v. Wright, 444 N.J. Super. 347, 356 (App. Div.
2016) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). We accept those
findings of the trial court that are "supported by sufficient credible evidence in
A-3528-16T3
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the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders,
192 N.J. 224, 243 (2007)). Deference should be afforded to a trial judge's
findings when they are "substantially influenced by his [or her] opportunity to
hear and see the witnesses and to have the 'feel' of the case, which a reviewing
court cannot enjoy." Johnson, 42 N.J. at 161. However, "[a] trial court's
interpretation of the law . . . and the consequences that flow from established
facts are not entitled to any special deference." Gamble, 218 N.J. at 425.
In addition, it is well settled that the admissibility of evidence is a matter
within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super.
88, 123 (App. Div. 2011). "Under that standard, an appellate court should not
substitute its own judgment for that of the trial court, unless 'the trial court's
ruling was so "wide of the mark that a manifest denial of justice resulted."'"
State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J.
469, 484 (1997)).
Applying these principles, we discern no basis for disturbing the trial
judge's reasoned decision to permit M.D. and M.W. to provide lay opinion
testimony; that is, their opinions that defendant was the individual depicted in
the plumbing company surveillance video. In so ruling, we are mindful that
there is no New Jersey appellate case law directly on point specifically
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addressing the admissibility of a lay witness's opinion testimony that identified
a defendant, based upon a review of a surveillance video. However, in Lazo,
209 N.J. at 19-24, our Supreme Court considered the admissibility of lay opinion
testimony from a police officer regarding the reason he selected a photo of
defendant to be included in a photo array, that is, because the officer belie ved
defendant resembled a composite sketch of the suspect.
As noted in Lazo, resolution of the admissibility of this evidence question
required consideration of a number of factors. For example, a trial court should
consider whether the defendant had disguised his appearance during the offense
or altered his appearance before trial; if not, then the jury could decide for itself
if defendant was the person in the photograph. Id. at 22-23. Also, the court
should consider whether there were additional witnesses to identify the
defendant at trial, and how long the witness knew the defendant, and in what
capacity. Id. at 23-24.
The Court held in Lazo that the officer was improperly permitted to give
jurors his opinion that the defendant resembled a composite sketch of the
suspect. Id. at 24. The Court cited favorably to the Law Division's 1981
decision in Carbone.
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In Carbone, the defendant was charged with five armed bank robberies,
and the State had secured statements from individuals who knew the defendan t,
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, as previously discussed, considered a number of factors in reaching its
determination that the proposed identifications were admissible, including: the
fact that the defendant's appearance had changed since the time of the offense
charged; the lack of eyewitnesses to the offenses charged; the extent of the
potential witnesses' familiarity with the defendant, particularly at the time of the
offenses charged; and 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.10
10
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.
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Contrary to defendant's argument, 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
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.
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).
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their superior knowledge of the defendant's appearance, particularly around the
time of the crime.
After considering the relevant Lazo and Carbone factors, we are satisfied
that the judge correctly concluded that M.D. and M.W.'s identifications of
defendant as the man in the plumbing company surveillance video were
permissible lay opinions under N.J.R.E. 701. Both witnesses worked with
defendant and, unlike the jurors, were fully familiar with his mannerisms, gait,
and appearance, including his distinctive hairstyle. 11 Thus, they were able to
draw on this knowledge when they watched the surveillance video.
Because of the grainy quality of the video, the jury likely would have been
unable to identify whether defendant was the man in the video without the
assistance of this testimony. Indeed, the judge noted that he would have been
uncomfortable making such an identification because, unlike M.D. and M.W.,
he did not have a prior working relationship with defendant. Thus, M.D. and
M.W.'s identification testimony was admissible because it was "rationally based
on the perception of the witness[es]" and would assist the jury "in determining
a fact in issue." N.J.R.E. 701. Under these circumstances, we detect no abuse
11
By the time of the trial, defendant no longer wore his hair in short, twisted
braids.
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of discretion in the judge's denial of defendant's suppression motion and the
admission of the identification testimony.
We also reject defendant's claim that M.D. and M.W.'s identifications
were made under suggestive conditions that required their exclusion under State
v. Henderson. That case is clearly distinguishable from the matter at hand. As
our colleague, Judge Allison Accurso, recently stated in Wright, "[t]he central
point of Henderson is the recognition that suggestive procedures can skew a
witness's report of his opportunity to view the crime[.]" 444 N.J. Super. at 360.
Here, Detective Franco did not ask M.D. or M.W. to identify the robber
based on what they remembered from seeing him during the actual robbery.
Instead, he showed them a surveillance video of a man walking and crouching
in a parking lot and asked what they thought of it. Unlike crime victims who
have only a fleeting opportunity to observe their assailant, M.D. and M.W. both
knew defendant from working with him at the children's store. Thus, the
witnesses were well-acquainted with defendant and, therefore, could rely on that
relationship, rather than what they might have remembered from the robbery, in
pinpointing defendant as the man in the video. See State v. Herrera, 187 N.J.
493, 507 (2006) (finding prior relationship a "significant, if not controlling" fact
in determining reliability of identification procedure). Indeed, a "confirmatory"
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22
identification, which occurs when a witness identifies someone he or she knows
from before but cannot recall their name, is not considered suggestive. State v.
Pressley, 232 N.J. 587, 592-93 (2018).
Under these circumstances, the "estimator variables" identified by the
Henderson Court were inapplicable to the identification procedure involved in
this case. These factors include stress; weapon focus; duration of the witness'
observation of the perpetrator; distance and lighting; the witness' characteristics
that could impact an identification's accuracy; the perpetrator's appearance,
including whether a mask or disguise was employed; racial bias, and speed of
an identification. Henderson, 208 N.J. at 261-272. Again, M.D. and M.W.'s
testimony that defendant was the man in the plumbing company surveillance
video was based entirely upon their past working relationship with him, and not
upon their ability to see and remember what the robber looked like on the night
of the crime.
Nevertheless, the judge did consider most of the "system variables"
described in Henderson, and found that the procedure Detective Franco used to
show the video to the employees was not unduly suggestive. These variables
concern the manner in which the police conduct an identification procedure and
include considerations such as the type of procedure used, what pre-
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23
identification instructions were given to a witness, and whether suggestive
feedback was given to a witness post-identification. Id. at 248-61.
The judge noted that Detective Franco suspected defendant was the man
in the surveillance video and, therefore, the procedure was not "double blind."
The judge also observed that the police did not record the witnesses as they
watched the video, which was "not ideal[.]" Nevertheless, the judge concluded
that
the detective's approach was sensible, although [unlike
a case governed by the Henderson rules,] this was not a
constructed identification array or sequential photo
identification process. [Detective Franco] did employ,
as was suggested, many of the principles of how to
handle people so that you don't taint their process of
identification.
Therefore, the judge concluded, and we agree, that the procedures the detective
used were not unduly suggestive.
In addition, the judge ruled that defendant could address the question of
possible taint on cross-examination of any witnesses the State proffered in
connection with the identifications. Defense counsel took full advantage of this
opportunity at trial after M.D. and M.W. made their in-court identifications
based on the surveillance video.
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24
In sum, there is no basis to disturb the judge's denial of defendant's
suppression motion. We therefore reject defendant's contentions on this point.
III.
At the end of the trial, the judge gave a detailed instruction to the jury on
the in-court identifications M.D. and M.W. made of defendant based upon
Model Jury Charge (Criminal), "Identification: In-Court Identification Only"
(rev. July 19, 2012, eff. Sept. 4, 2012). In Point II, defendant argues that the
judge erred by denying his request to give the jury the model charge for in-court
identifications and out-of-court identifications. 12 We disagree.
It is well settled that "[a]ppropriate and proper charges are essential for a
fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original)
(internal quotation marks omitted) (quoting State v. Reddish, 181 N.J. 553, 613
(2004)). Jury instructions must give 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." Id. at 159 (quoting State v. Green, 86 N.J.
281, 287-88 (1981)).
12
Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court
Identifications" (rev. July 19, 2012, eff. Sept. 4, 2012).
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25
"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)). To
assess the soundness of the jury instruction, we consider "how and in what sense,
under the evidence before them, and the circumstances of the trial, would
ordinary . . . jurors understand the instructions as a whole." State v. Savage, 172 N.J. 374, 387 (2002) (alteration in original) (internal quotation marks omitted)
(quoting Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996)).
Applying these principles, there are no grounds for disturbing the judge's
determination that only the model judge charge for in-court identifications was
appropriate. At trial, the State did not present evidence concerning the out-of-
court identifications that were the subject of the pre-trial, Rule 104 hearing.
Instead, M.D. and M.W. only made in-court identifications of defendant.
Detective Franco was also careful not to reveal that either of the victims had
identified defendant as the man in the plumbing company video prior to trial.
Although M.W. made a fleeting remark on cross-examination that she thought
it was defendant in the surveillance video when she was first shown it, defendant
concedes in his brief that this comment was "oblique" and defense counsel asked
no follow up questions.
A-3528-16T3
26
As the judge noted, the State was "cautious and careful" not to refer to any
out-of-court identifications during the trial. As a result, there was no need to
instruct the jury on identifications that were not introduced in evidence.
Moreover, the jury received ample guidance in the final jury charge on
identification issues relating to the in-court identifications that were the only
ones actually presented to the jury for consideration. Therefore, we reject
defendant's contention on this point.
IV.
In Point III, defendant argues for the first time on appeal that reversal is
required because Detective Franco offered lay opinion witness testimony in
violation of N.J.R.E. 701. Defendant points to the detective's statement that the
man's ripped jeans in the plumbing store surveillance video were "consistent
with the blue jeans . . . [shown] on the [children's store] surveillance video[,]"
and his answer in the affirmative when asked whether the man in the video "was
consistent with the description [he] had received of the suspect and what [he]
had seen on the [children's store] video." Defendant also contends for the first
time that it was improper for Detective Franco to testify that he suspected the
man in the shopping store video might be defendant because both men were
A-3528-16T3
27
extremely tall, styled their hair in short twists, and wore ripped jeans. In support
of this position, defendant relies upon State v. Lazo.
Because defendant did not raise this issue at trial, we must review the
matter for plain error. R. 2:10-2. Plain error is "error possessing a clear capacity
to bring about an unjust result and which substantially prejudiced the defendant's
fundamental right to have the jury fairly evaluate the merits of his [or her]
defense." State v. Timmendequas, 161 N.J. 515, 576-77 (1999) (quoting State
v. Irving, 114 N.J. 427, 444 (1989)). "[A]ny finding of plain errors depends on
an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
As noted above, N.J.R.E. 701 permits lay opinion testimony that is
"rationally based on the perception of the witness" and "will assist in
understanding the witness' testimony or in determining a fact in issue." 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)
(remanding for a new trial on the defendant's possession with intent to distribute
controlled dangerous substances charge because a police officer, who observed
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28
the defendant hand an item to an individual in exchange for money, testified as
to his opinion that a drug transaction had occurred).
In Lazo, the issue was whether it was proper for a detective who had 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. Lazo, 209 N.J. at 12. Unlike in this case, the
defendant in Lazo fully presented and argued the issue at trial and, therefore, it
was not raised as plain error as it is here. "The 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 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 was
introduced to bolster the victim's identification. Id. at 24. The Court further
ruled that "[n]either a police officer nor another witness may 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.
Contrary to defendant's assertions, the point of the detective's testimony
was not to bolster an identification made by another witness. Detective Franco
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29
did not testify that defendant was the man who robbed the victims. Instead, his
testimony had a notably different, and more relevant, significance than the
detective's testimony in Lazo: it laid the foundation for why defendant became
a suspect and why the detective decided to show the two robbery victims, M.D.
and M.W., the plumbing store surveillance video to see if they could recognize
the man appearing in it. Indeed, in testimony that defendant omits from his
appellate brief, Detective Franco agreed "it [was] fair to say [that M.D. and
M.W.] would be in a better position to know what [defendant] looked like and
to make that I.D. if there was an I.D. to make[.]" Because this was not improper
lay opinion testimony, we are satisfied that the trial judge did not err in admitting
it.
However, even if the detective's brief remarks were to any degree
problematic, any error in admitting them was not "clearly capable of producing
an unjust result[.]" Rule 2:10-2. This is so because, unlike in Lazo, the State
had independent evidence in the form of Biggs's testimony placing defendant at
the scene of both the children's store and the plumbing company on the night of
the robbery. In addition, the State produced the photograph defendant sent
Biggs showing him holding a number of stacks of money bound together with
distinctive blue tape as was used at the store, and his texts stating that he now
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30
had enough to pay cash for a car. Thus, there was strong evidence of defendant's
guilt, separate and apart from the detective's testimony, that was more than
sufficient to support the jury's verdict. Therefore, defendant's contention on this
point fails.
V.
In Point IV, defendant argues that the trial judge erred by denying his
request to give Model Jury Charge (Criminal), "Testimony of a Cooperating Co-
Defendant or Witness" (rev. Feb. 6, 2006) (Cooperating Witness Charge) based
upon Biggs's testimony at the trial. We disagree.
It is long-established that "a defendant has a right, upon request, to a
specific jury instruction 'that the evidence of an accomplice is to be carefully
scrutinized and assessed in the context of his specific interest in the context of
his specific interest in the proceeding.'" State v. Adams, 194 N.J. 186, 207
(2008) (quoting State v. Begyn, 34 N.J. 35, 54 (1961)). The purpose of the
Cooperating Witness Charge is to "caution the jury 'regarding the credibility of
witnesses who may have a special interest in the outcome of the cause, which
might lead to influencing their testimony.'" Id. at 208 (quoting Begyn, 34 N.J.
at 54). "This special interest comes about by reason of hope, or even bargain,
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31
for favor in later prosecution treatment of the witness' own criminal conduct in
return for aid in convicting the defendant." Begyn, 34 N.J. at 54.13
Defendant asserts that because the police gave Biggs Miranda14 warnings
when they first met with her, and stated she "could have been charged in a
conspiracy or as an accessory" in the robbery, she had a "special interest" in the
outcome of the case requiring the judge to give the jury the Cooperating Witness
Charge. However, when defendant counsel asked Biggs at trial whether she "felt
like as long as [she] cooperated with the police and told them that it was
[defendant], that [she] felt like [she] would not be charged with this crime or
. . . in a conspiracy or as an accessary to a crime[,]" she replied, "No."
Indeed, neither the police nor the prosecutor ever charged Biggs with any
offense, and never asserted she played any role whatsoever in defendant's
13
Thus, the Cooperating Charge provides:
The law requires that the testimony of such a witness
be given careful scrutiny. In weighing his/her
testimony, therefore, you may consider whether he/she
has a special interest in the outcome of the case and
whether his/her testimony was influenced by the hope
or expectation of any favorable treatment or reward, or
by any feelings of revenge or reprisal.
14
Miranda v. Arizona, 384 U.S. 436 (1966).
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32
criminal conduct on the night of the robbery. Because Biggs faced no past,
present, or future penal liability as the result of driving defendant around after
he told her he was looking for his friend, she had no reason to seek any favor
from the prosecution that would give her any "special interest" in the outcome
of the trial or influence her testimony. Therefore, the judge did not err by
denying defendant's request for a Cooperating Witness Charge. 15
VI.
In sum, we affirm defendant's convictions and aggregate sentence, but
remand to the trial court to correct the JOC to reflect the merger of count four
into counts one, two, and three. 16
Affirmed in part; and remanded. We do not retain jurisdiction.
15
In addition, defense counsel thoroughly cross-examined Biggs to challenge
her credibility, and the judge instructed the jury on credibility at the beginning
and end of the trial. Thus, any possible error in the failure to give the jury this
instruction would have been harmless. Adams, 194 N.J. at 209.
16
As for the balance of any of defendant's arguments not expressly discussed
above, they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
