Opinion
DOCKET NO. A-3081-14T3
12-08-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. THADDEUS REEVEY, Defendant-Respondent.
Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Heinzel, of counsel and on the brief). Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-09-1583. Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Heinzel, of counsel and on the brief). Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). PER CURIAM
By leave granted, the State appeals from a January 22, 2015 interlocutory order of the trial court excluding the identification testimony of a police officer in defendant's trial for murder. We affirm.
On November 8, 2011, Eric Freeman was found dead in Asbury Park, the apparent victim of a shooting. Officers from the Asbury Park Police Department ("APPD") reported to the scene of the shooting and discussed the incident with A.B, an alleged eyewitness. The next day, the APPD presented A.B. with a photo array that included defendant. A.B. identified defendant as the shooter.
We use initials to protect the identity of witnesses in this case.
Independent of the APPD's meeting with A.B., Detective Gabriel Carrasquillo obtained footage from a surveillance camera that videotaped the public housing complex near the area where Freeman's body was found. The tape shows A.B. and Freeman walking around the corner, where they are visible for a few seconds. Several minutes after A.B. and Freeman appear, the video shows two other males walking around the same corner. Carrasquillo thought one of the individuals in the video resembled defendant because of how he wore his hair, recognized his face, and was similar to defendant's height and weight. Carrasquillo knew defendant from several street encounters and police investigations.
Carrasquillo, however, needed to confirm his initial suspicions because the video was of poor quality. He did so by watching the surveillance video several times at the police station, looking at social media websites such as Facebook, and examining previous arrest photos. Although he was initially unable to determine whether defendant was the person depicted in the video, Carrasquillo testified that he could identify defendant after completing his investigation. On September 17, 2012, a grand jury in Monmouth County returned an indictment charging defendant with murder and second-degree possession of a weapon for an unlawful purpose.
Defendant requested a Wade/Henderson hearing, concerning the admission of eyewitness testimony by A.B. The judge denied defendant's motion to exclude, and ruled that A.B.'s eyewitness testimony was admissible under State v. Henderson. Shortly before trial, defendant moved to exclude Carrasquillo's surveillance video identification testimony. The trial judge conducted a N.J.R.E. 104 hearing and granted defendant's motion on January 22, 2015.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, L. Ed. 2d 1149 (1967); State v. Henderson, 208 N.J. 208 (2011).
The State was granted a stay and leave to file this interlocutory appeal. On appeal, the State argues the following:
POINT I.
THE TRIAL COURT WRONGLY EXCLUDED HIGHLY RELEVANT OPINION TESTIMONY PLACING DEFENDANT AT THE SCENE OF THE MURDER.
A. There is No Genuine Dispute that Detective Carrasquillo's Testimony Meets All Requirements of N.J.R.E. 701 to Allow Him to Opine that Defendant is the Suspect Seen in the Video.
B. The Trial Court Failed to Weigh the Value of Carrasquillo's Non-Prejudicial Testimony to Knowing Defendant, Gave Controlling Weight to the Mere Existence of Another Eyewitness and Failed to Weigh the Ways to Cure Any Conceivable Prejudice Flowing from his Status as a Police Officer.
We typically review evidentiary rulings under an abuse of discretion standard. See Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We uphold a trial court's evidentiary rulings "unless it can be shown it palpably abused its discretion, that is, that the finding was so wide of the mark that a manifest denial of justice resulted." State v. Collier, 316 N.J. Super. 181, 193 (App. Div. 1998), aff'd 162 N.J. 27 (1999) (citing State v. Carter, 91 N.J. 86, 106 (1982)).
The State has offered Carrasquillo's identification testimony as a lay opinion pursuant to N.J.R.E. 701. Under Rule 701, all evidence is generally admissible if it is relevant, is rationally based on the perception of the offering witness, and will assist in understanding the witness' testimony or in determining a fact in issue. Therefore, the inquiry relating to N.J.R.E. 701 concerns both the reliability of the identification and the helpfulness of the identification. However, that does not end the inquiry. Having determined the reliability and relevancy of Carrasquillo's testimony, the trial court undertook an analysis to determine whether to exclude Carrasquillo's testimony as more prejudicial than probative under N.J.R.E. 403.
During the N.J.R.E. 104 hearing, Carrasquillo testified that he viewed the surveillance video and thought the person in the video looked like defendant, as he was only familiar with him through prior encounters as a police officer. The trial judge granted defendant's motion to exclude, resting his decision on the availability of identification testimony from another, non-police witness (A.B.), and the potential prejudice resulting from a law enforcement officer explaining his identification of defendant.
The State asserts that the trial judge abused his discretion by failing to weigh all of the probative value of Carrasquillo's testimony against the purported prejudice, and that the judge erroneously applied State v. Carbone, 180 N.J. Super. 95 (Law Div. 1981), and United States v. Butcher, 557 F.2d 666 (9th Cir. 1977). We disagree. In his decision, the trial judge acknowledged that Carrasquillo's testimony, although helpful, would have to be sanitized if admitted. The trial judge also recognized that, even when testifying as a lay person, Carrasquillo's status as a law enforcement officer would prejudice defendant by preventing defendant from engaging in effective cross-examination. The court recognized that defendant's "right to confrontation to cross examine [Carrasquillo] is so compromised that it would be unfair" because Carrasquillo would need to testify about his extensive prior contacts with defendant. These contacts may have given Carrasquillo the ability to positively identify defendant in a blurry video, but defendant would be effectively precluded from testing the accuracy of Carrasquillo's familiarity and identification because of the risk that Carrasquillo would testify about these prior contacts.
Courts evaluating whether a law enforcement official may offer a lay opinion on identification consider, among other factors, whether there are additional witnesses available to identify the defendant at trial. See, e.g., United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977) (noting that "use of lay opinion identification by policemen or parole officers is not to be encouraged, and should be used only if no other adequate identification testimony is available to the prosecution"); State v. Carbone, 180 N.J. Super. 95, 97-100, (Law Div. 1981) (allowing lay witness testimony and noting lack of available eyewitness identification, change of defendant's appearance, and familiarity with his appearance at time of crime). See also State v. Lazo, 209 N.J. 9, 23 (2012) (citing Carbone and Butcher in support of the notion that police witness lay opinion is excludable when there are other witnesses available for identification purposes, or when the officer does not have a relationship with the defendant outside law enforcement circumstances).
In Carbone, the judge recognized the potential prejudice inherent in permitting police identifications based on familiarity with the defendant. Two of the potential Carbone witnesses were police officers, but their relationship with the defendant was a personal one, not related to their status as law enforcement figures. Carbone, supra, 180 N.J. Super. at 98. Thus, unlike in this case, there was no danger of prejudice to the defendant because the defendant could probe the basis of the officers' identification testimony without discussing defendant's prior criminal history. Ibid. (citing United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976)). Moreover, in Carbone, there was no other adequate identification testimony available besides that provided by the police officers. Id. at 98-100.
Here, the trial judge recognized that prejudice, while not in the list of the traditional "Carbone factors," is a concern cited in Carbone. Id. at 98.
Carrasquillo's identification testimony was based on his investigations of defendant or his associates in criminal justice settings. Carrasquillo's testimony was based on police investigations using defendant's images from several social media websites, street encounters, and photographs of defendant from his booking in unrelated criminal incidents. Unlike Carbone, defendant's sole relationship with Officer Carrasquillo is in the criminal justice context, and that experience forms the substantial basis of Carrasquillo's ability to testify about his identification of defendant. Accordingly, there is a substantial risk of prejudice against defendant because his ability to cross-examine Carrasquillo will be impeded.
The State argues that prejudice could be minimized by limiting Carrasquillo's testimony to "knowing" defendant. We again disagree. Defendant's challenge to the State's identification is inextricably tied to how the witness knows defendant, and why the witness could know who defendant was, given the nature and quality of the video evidence. Defendant would be unable to cross-examine Carrasquillo as to his confirmation of defendant's identity on the video without Carrasquillo describing prior contacts with defendant, defendant's photos on social media and photos from his prior arrests.
We also reject the State's argument that without Carrasquillo's testimony, it cannot provide identification evidence. The State has another identification witness, A.B., who is available to testify as to defendant's identity and appearance, and could be cross-examined effectively without the same level of prejudice inherent in Carrasquillo's testimony. The trial judge specifically noted that both prejudice against defendant and the availability of A.B.'s testimony formed the basis of his decision to exclude Officer Carrasquillo's testimony; these concerns mirror those of the Carbone court. Supra, 180 N.J. Super. at 98-100.
The State argues that A.B.'s identification will be subject to attack by defendant and A.B. himself is reluctant to testify, expressing fear of defendant. However, there is no indication at this time that A.B. is unavailable. Moreover, the State is not without remedies to secure the availability and security of its witness. --------
The trial judge was within his discretion to consider the availability of other evidence that can be used to prove the same point. See Biunno, Weisbard & Zegas, Current N.J. Rules of Evidence, Comment 3 to N.J.R.E. 403. Probative value is enhanced by the absence of any other evidence that can prove the same point. See State v. Stevens, supra, 115 N.J. 289, 303 (1989). Conversely, relevant evidence losses some of its probative value if there is other non-inflammatory evidence available to prove that point. See State v. Covell, 157 N.J. 554, 569, (1999); State v. Johnson, 120 N.J. 263, 298 (1990); State v. Davis, 116 N.J. 341, 366 (1989). In any event, we note that the State still has the video footage. The State may allow members of the jury to draw their own conclusions from the footage.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION