State v. Allen

254 N.J. 530

298 A.3d 1033

STATE of New Jersey, Plaintiff-Respondent,

v.Dante C. ALLEN, Defendant-Appellant.

A-55 September Term 2021

086699

Supreme Court of New Jersey.

Argued January 17, 2023

Decided August 2, 2023

Margaret McLane, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Margaret McLane, of counsel and on the briefs, and Glenn D. Kassman, Designated Counsel, on the briefs).

Alecia Woodard, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Raymond S. Santiago, Freehold, Monmouth County Prosecutor, attorney; Alecia Woodard, of counsel and on the briefs, and Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).

Alexander Shalom, Newark, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Jeanne LoCicero, on the brief).

Raymond Brown argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).

Frank Muroski, Trenton, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Frank Muroski, of counsel and on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

Defendant Dante Allen appeals his conviction of first-degree attempted murder and other offenses arising from a shooting incident during his encounter with a police officer. It is undisputed that defendant ran from the officer, that the officer pursued him, and that a handgun held by defendant discharged during the pursuit. The State contends that defendant deliberately shot at the police officer. Defendant claims that the handgun fired accidentally as he was running and that the weapon was not aimed at the officer.

At defendant's trial, the trial court permitted the lead detective in the investigation, who was not at the scene of the shooting, to narrate the surveillance video of the incident in his testimony before the jury. Most of the detective's narration focused on his use of the video as he investigated the crime scene. In several comments, however, the detective opined that the video showed defendant turning toward the officer and firing his handgun, thus suggesting that defendant intentionally fired his weapon at the officer.

Following his conviction, defendant asserted on appeal that he was denied a fair trial because the trial court permitted the detective to present lay opinion testimony in violation of N.J.R.E. 701. The Appellate Division held that the detective's narration of the video exceeded the parameters of proper lay opinion testimony under N.J.R.E. 701 and that the trial court abused its discretion by permitting the narration. The appellate court concluded, however, that the trial court's error in admitting the contested comments was harmless, and it affirmed defendant's conviction. We granted defendant's petition for certification.

We disagree with the Appellate Division's conclusion that the trial court should have excluded all the detective's narration of the surveillance video. We hold that the trial court properly permitted the detective to testify about the manner in which he used the surveillance video to guide his investigation. Applying principles stated today in State v. Watson, 254 N.J. 558, 598–608, 298 A.3d 1049, we concur with the Appellate Division that the detective's testimony opining that the video showed defendant turning and firing his weapon should have been excluded from evidence. We agree with the appellate court, however, that the error was harmless given the strength of the State's evidence.

Accordingly, we affirm as modified the Appellate Division's judgment.

I.

A.

We summarize the facts based on the trial record.

At 7:15 p.m. on November 4, 2015, defendant was speaking with a friend on the sidewalk near the intersection of Atkins Avenue and Boston Way in Asbury Park. According to defendant's trial testimony, he was carrying a handgun that he had recently acquired after a confrontation with a gang member made him fear for his safety. Defendant testified that he had no permit for the weapon and that cocaine was concealed in his underwear.

Officer Terrence McGhee of the Asbury Park Police Department, patrolling the area in his police vehicle, saw defendant and the other man having what McGhee considered a "normal but animated" conversation. Defendant testified that he was nervous when he realized that the officer was watching him because he was aware that he was "not supposed to have this gun." McGhee testified that when defendant saw him, defendant's "mannerisms changed" and that defendant held his left arm "tight to his side," causing McGhee to suspect that defendant was carrying a weapon. McGhee drove around the block, and defendant left his friend, walking north on Atkins Avenue toward his home.

At the intersection of Atkins Avenue and Springwood Avenue, McGhee pulled his patrol vehicle over and got out. McGhee and defendant both testified that McGhee then approached defendant and asked whether he could speak with him. McGhee and defendant provided conflicting accounts of what happened next.¹

According to McGhee, defendant "stopped and turn[ed] right towards me and said yes, Officer, I have my I.D. right here." McGhee testified that in response, defendant "removed his wallet with his right hand," and "held it up above his head and away from his body, which appeared to be not normal or appeared to be a distraction." According to McGhee, defendant ignored his orders to show his hands, and instead "reach[ed] up underneath his sweatshirt ... towards his waistband." The officer testified that he reached toward defendant's waistband and felt "the butt of the gun and then the top slide of the weapon," making him "a hundred percent" certain that defendant was carrying a gun.

McGhee stated that defendant, using his left hand, "slapped my hand down and proceeded running westbound," disregarding McGhee's repeated orders to stop. According to McGhee, as defendant ran into a vacant lot, he "turned 180 degrees, that would be counterclockwise, raised the handgun and fired at me" from a distance of eighteen to twenty-four feet.² McGhee stated that he saw the gun "go off" but was not hit by the bullet. McGhee testified that he fired his service weapon at defendant seven times, and "ultimately, I struck him and he fell." Defendant sustained a wound to his lower left leg.

McGhee testified that he used his radio to call for backup, stating that a suspect was down. He stated that defendant "was complaining about his leg," and that defendant said "officer, let me talk to you man-to-man. I f----d up." According to McGhee, he told defendant, "[d]on't f-----g move. I'll shoot you, m----r f----r." McGhee stated that he saw the gun within arm's reach under defendant's left arm, and that another officer who arrived on the scene recovered the weapon as McGhee secured defendant and rendered first aid.

Defendant testified that, in response to McGhee's request to speak with him at the intersection of Atkins Avenue and Springwood Avenue, he provided the officer with his identification. According to defendant, when McGhee asked to see his hands, he did not reach for his weapon, but rather "attempted to put my hands up." Defendant stated that McGhee nevertheless "went straight for my waist," at which point he "[s]macked" McGhee's hand with his left hand. He stated that he ran toward the back of an abandoned building, "with my intent to throw the gun on the roof."

According to defendant, as he turned left and entered an unlit area near the building, pursued by McGhee, he "tr[ied] to throw the gun on the ... roof, but as I turned to the side, I could see [McGhee] out of my peripheral. So next thing on my mind is to bring the gun back in, but it's too late, I wasn't able to, the gun goes off." He stated that he never pointed the gun at McGhee, but "grabbed it by the butt of the gun so that would make it easier for me to throw the gun." Defendant testified that "this all happened so fast, it happened very fast, and I was scared, I was running, adrenaline rushing." According to defendant, after his handgun went off, he "continued to run ... a little bit" before falling to the ground due to his leg wound.

Defendant was arrested and taken to a hospital. In a search of defendant's clothing, officers discovered the cocaine concealed in his underwear.

Shortly thereafter, Detective Michael Campanella, the detective on call in his unit of the Monmouth County Prosecutor's Office, was notified of a shooting incident in Asbury Park that required crime scene processing, and he immediately went to the scene. Campanella was assigned to be the lead forensic detective on the case.

Campanella stated that he examined the handgun taken from defendant but found no fingerprints on it. He also examined the bullets found in the handgun, three of which were determined to be hollow-point bullets, as well as seven cartridges discharged by McGhee's service weapon.

Campanella reviewed two surveillance videos without audio, each recorded by a camera on a nearby building, and used the videos to locate areas of interest for his processing of the crime scene. He testified that a shell casing was recovered near the location where defendant stood when his handgun discharged but that the bullet discharged by that handgun was never found.

B.

A grand jury indicted defendant for first-degree attempted murder, second-degree unlawful possession of a weapon, second-degree possession of a weapon for an unlawful purpose, fourth-degree possession of a prohibited weapon, and third-degree possession of a controlled dangerous substance. A third-degree receiving stolen property charge was dismissed prior to trial.

Defendant was tried before a jury in a...