Police Officer’s Testimony of Surveillance Footage Was “Best Evidence” When the Surveillance Footage Could Not Be Produced for Trial
Appellate Docket No.: A-163-20
Decided June 1, 2021
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
In a recent unpublished opinion, the Appellate Division of New Jersey reviewed whether a police officer’s testimony of surveillance footage identifying defendant was appropriate “best evidence” when the surveillance footage could not be produced for trial.
In State v. Bayoumi, Mahmoud Elsayed worked at the Caravan Motor gas station in Avenel where he attended the gas pumps and sold various items from a small booth. On August 30, 2018, he was approached by a “shorter,” “thin” man sporting a “light beard” wearing an “extra[-]long” white, dotted t-shirt and white pants. The man asked to purchase a pack of cigarettes, but when Elsayed went to retrieve the cigarettes, the man followed him into the booth, pressed what appeared to be a gun wrapped in black electrical tape into Elsayed’s body, and demanded money. Elsayed resisted, and the man fled.
While on patrol nearby, a Woodbridge police officer heard dispatch provide a description of the suspect and his direction of travel. Soon after, the officer observed a man fitting the description on a residential street roughly two blocks from the robbery site. He stopped the man, later identified as defendant. He was wearing a white, spotted t-shirt with dark pants layered over a pair of white pants. Defendant was “sweating profusely” and was “winded,” leading the officer to deduce that defendant “was definitely moving at a fast pace at some point.” Defendant was not in possession of a weapon, but a detective who soon arrived searched the immediate area and found what appeared to be a handgun wrapped in electrical tape in a bush at the end of a driveway. The recovered weapon was later determined to be fake.
After defendant was arrested, police conducted a show-up identification within thirty minutes of the robbery; Elsayed identified defendant as the man who attempted to rob him. When asked how certain he was, Elsayed said, “100 percent positive.”
The robbery was captured by Caravan’s security cameras. Officers viewed the video at the gas station but for unknown reasons, when it was downloaded, no video was captured. Prior to trial, the prosecutor advised the judge she did not intend to use what was obtained from the attempt to download what the surveillance cameras captured and did not intend on calling the police officers who watched the footage at the gas station. Defense counsel, however, insisted this evidence should be presented so the jury would learn “there [had been] a video” but they “[would]n’t [be able to] see it.” The trial judge informed defense counsel that if she chose to “open up that Pandora’s box” he would not “preclude the State then from asking a witness what he had seen on that video before it was lost.” Because of defense counsel’s insistence, the State called to testify the two officers who viewed the video at the gas pumps.
defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1(a)(2), and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e). At sentencing, the judge merged the convictions and imposed an eleven-year prison term, subject to an eighty-five percent period of parole ineligibility.
Defendant appealed, arguing the officers should not have testified about the surveillance footage. The Appellate Division affirmed the defendant’s conviction, finding that it was defendant’s own counsel who insisted on introducing the evidence for trial, otherwise known at the invited error rule. What’s more, the officers testified about the description of the individual in the video and not that it was the defendant, thus allowing the testimony and not compromising the testimony.
Witnesses that are not expert witnesses can only testify as to their firsthand knowledge. Police officers are not an exception. Here, the police’s reference to the individual in the surveillance as “the defendant” could have improperly persuaded the jury as to suggesting that it was indeed defendant in the surveillance and he was guilty of robbery. Instead, the officers simply stated what they saw on the video and did not make the conclusion that it was indeed the defendant. it is the jury’s job to take in testimony from the officer, such as comparison of the defendant’s shoes, and then view the video themselves and determine whether they believe it was the defendant in the surveillance. More importantly, defense counsel must object at the point where a police officer testifies outside their personal knowledge, otherwise, on appeal, it is viewed under the plain error standard – much higher than had defense counsel objected.
At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.
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