Video Surveillance from cameras near by used as evidence, and social media friendship, text evidence and photos from texts used as evidence. Does Henderson apply?
State v. Nurse , N.J. Super. App. Div. January 3, 2019 The police love the Video Surveillance from cameras near by used as evidence, and social media friendship, text evidence and photos from texts used as evidence. Does New Jersey’s Henderson identification procedure apply to a case with video surveillance?
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
At approximately 11:00 p.m. on July 19, 2014, two employees of a children’s store, M.D. 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 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 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 asked Biggs when he could get his “stuff back.” (Defendant had left a jacket and sneakers in Biggs’s car after he changed his clothes in the department store parking lot.) 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. Defendant was wearing red, Polo- brand boxer shorts in the photograph.(Copies of the pertinent texts and the photograph were obtained from Biggs’s phone and entered in evidence at the trial.)
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 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. 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 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.
Standard of Review of Trial Judge’s Decision
At the conclusion of the hearing, the judge rendered a thorough oral decision denying defendant’s motion to suppress the identifications made by 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 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 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 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)).
Analysis: the issue is the identification of the defendant by ‘lay witnesses’ through surveillance video !
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 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 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. 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
Analysis of LAY Witness testimony —— Rule 704 of New Jersey Rules of Evidence —— Does Henderson apply to lay witness testimony and comments of what is on a video?
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 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 believed 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. In Carbone, the defendant was charged with five armed bank robberies, and the State had secured statements from individuals who knew the defendant, 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.
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 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.
The key to this court’s decision lay with the exact procedures Franco undertook when he brought in the defendant’s former employees to look and see what was on the video surveillance and if they could see anything! He did not suggest anything, and that is exactly what he testified to.
The court goes on: “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” 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- 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. In sum, there is no basis to disturb the judge’s denial of defendant’s suppression motion.
Ultimately, this court found the Henderson case did not control these facts and circumstances because the witnesses called to look at the video knew the defendant and relied upon other facts, than their own visual memory. They remember his gait, when hair style, and other identifiers. Also, the detective did not attempt to suggest any outcome because he knew who the person in the video was already.
The key to this decision was the neighboring surveillance cameras that caught this defendant in the ‘social media’ friend’s car. That friend identified the defendant based on the police’s simple investigation. As a result, the police pretty much knew who the person in the video was. As a result the former co-employee’s testimony was only icing on the cake so to speak!