State v. Sanchez

State v. Damian Sanchez

No. A-60-19

Supreme Court of New Jersey

July 22, 2021

Argued January 5, 2021.

On appeal from the Superior Court, Appellate Division.

Robert C. Wolf argued the cause for appellant (The Wolf Law Firm attorneys; Robert C. Wolf, on the briefs).

Linda A. Shashoua, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Jill S. Mayer Acting Camden County Prosecutor, attorney; Linda A. Shashoua of counsel and on the briefs).

Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for amicus curiae Public Defender of New Jersey (Joseph E Krakora, Public Defender, attorney; Tamar Y. Lerer, of counsel and on the brief).

Brian D. Kenney argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Einhorn, Barbarito Frost &Botwinick, attorneys; Brian D. Kenney, on the brief).

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

PATTERSON, J., writing for the Court.

The Court considers the admissibility of the lay opinion testimony of defendant Damian Sanchez's parole officer, Cheryl Annese, that defendant was the individual depicted in a photograph derived from surveillance video.

In the course of a homicide investigation, the Camden County Prosecutor's Office circulated a flyer entitled "Attempt to Locate," which stated that a "red/burgundy" Buick Century was "possibly used" in a homicide. The flyer included a still photo derived from surveillance video. In the photograph, the driver is not seen, but the faces of a male passenger in the right front seat and a male passenger in the right back seat are visible.

In response to the flyer, Annese contacted the detective leading the investigation. She identified the front-seat passenger depicted in the photograph as defendant, a parolee whom she supervised. Annese stated that she had met with defendant at least twice a month in the fifteen months since he was released after serving a term of incarceration for aggravated manslaughter. She also told the detective that approximately a week after the homicide and robbery identified in the flyer, defendant had informed her that he had "probably dropped" his phone and had changed his telephone number. A search of a suspect's cellphone revealed text messages exchanged with defendant. A grand jury indicted defendant for felony murder and armed robbery, among other offenses.

Defendant filed a pretrial motion to exclude Annese's testimony. The trial court ruled that her testimony was inadmissible as lay opinion testimony under N.J.R.E. 701. It found that Annese's testimony did not satisfy the rule's requirement that testimony be based on the perception of the witness because Annese did not witness the homicide or robbery, see defendant in the Buick, or have "firsthand" knowledge that defendant was in the Buick as it left the crime scene. The trial court also found that the evidence did not satisfy the requirement that the testimony assist the jury under N.J.R.E. 701. And the trial court held that the testimony should be excluded under N.J.R.E. 403.

The Appellate Division reversed the trial court's determination and remanded the matter. The Court granted defendant's motion for leave to appeal. 241 N.J. 383 (2020).

HELD: Annese's lay opinion testimony is rationally based on the witness's perception and therefore satisfies the first prong of N.J.R.E. 701. Based on Annese's extensive contacts with defendant, the absence of any other identification testimony, and the quality of the surveillance photograph, the testimony meets the second requirement of N.J.R.E. 701 because it will assist the jury in determining a fact at issue in defendant's trial. Sanitized to avoid disclosure of defendant's status as a parolee at the time of his alleged offense, Annese's lay opinion testimony will not be so prejudicial that its probative value is substantially outweighed by the risk of undue prejudice, and that testimony should not be excluded under N.J.R.E. 403. The Court concurs with the Appellate Division that the trial court abused its discretion when it barred Annese's lay opinion testimony.

1. N.J.R.E. 701 was adopted to ensure that lay opinion is based on an adequate foundation. As amended in 2019, the rule provides that lay opinion testimony "may be admitted if it: (a) is rationally based on the witness' perception; and (b) will assist in understanding the witness' testimony or determining a fact in issue." N.J.R.E. 701. The rule thus imposes two distinct requirements for the admission of lay opinion testimony. (pp. 12-13)

2. In order for lay opinion testimony to satisfy the first component of N.J.R.E. 701, the witness must testify based on knowledge personally acquired through the witness's own senses, rather than on the hearsay statements of others. The witness need not have witnessed the crime or been present when the photograph was made to offer admissible testimony. The trial court erred when it found that Annese's testimony would fall short of N.J.R.E. 701's first requirement because she did not witness the shooting, see defendant in the Buick, or possess "firsthand" knowledge that defendant was in the Buick. N.J.R.E. 701's "perception" prong imposes no such requirement. Annese became familiar with defendant's appearance by meeting with him on more than thirty occasions during his period of parole supervision. Her identification of defendant as the front-seat passenger in the surveillance photograph was "rationally based on [her] perception," as N.J.R.E. 701 requires. The State satisfied the first prong of N.J.R.E. 701. (pp. 13-17)

3. N.J.R.E. 701's second prong requires that lay opinion testimony will assist the jury "in understanding the witness' testimony or determining a fact in issue." N.J.R.E. 701(b). Such testimony must assist the trier of fact either by helping to explain the witness's testimony or by shedding light on the determination of a disputed factual issue. A witness may not offer lay opinion on a matter as to which the jury is as competent as the witness to form a conclusion. In State v. Lazo, the Court noted considerations identified by federal appellate courts deciding whether lay opinion testimony will assist the jury, as required by Fed.R.Evid. 701. 209 N.J. 9, 22-24 (2012). The Court again distills from federal cases factors that inform a trial court's determination whether lay opinion testimony will assist the jury. (pp. 17-18)

4. First, the nature, duration, and timing of the witness's contacts with the defendant are important considerations. Second, if there has been a change in the defendant's appearance since the offense at issue, law enforcement lay opinion identifying the defendant may be deemed helpful to the jury. Third, law enforcement lay opinion identifying a defendant in a photograph or video recording should be used only if no other adequate identification testimony is available to the prosecution. Fourth, the quality of the photograph or video recording at issue may be a relevant consideration. If the photograph or video recording is so clear that the jury is as capable as any witness of determining whether the defendant appears in it, that factor may weigh against a finding that lay opinion evidence will assist the jury. And if the image is of such low quality that no witness could identify the individual who appears in it, lay opinion testimony will not assist the jury, and may be highly prejudicial. Those four factors are not exclusive; other considerations may be relevant to whether lay opinion testimony will assist the jury in a given case. Moreover, no single factor is dispositive. (pp. 18-23)

5. Here, Annese's contacts with defendant were more than sufficient to enable her to identify him in the surveillance photo more accurately than a jury could. Accordingly, the witness's contacts with the defendant favor a determination that her testimony would assist the jury. Because this case has yet to be tried, it is unclear whether a change in defendant's appearance between the date of the surveillance photograph and the date of trial is a relevant consideration. Accordingly, this second factor does not support or undermine a finding that N.J.R.E. 701's second prong is satisfied in this case. Third, Annese's testimony that defendant was the front-seat passenger in the surveillance photograph would provide the State's only identification testimony regarding defendant. That factor favors a holding that her lay opinion testimony would assist the jury. Finally, the quality of the photograph favors the admission of Annese's testimony. The photo is neither so blurry that the subject's features are indistinguishable, nor so clear that jurors unacquainted with defendant could determine as accurately as Annese whether the Buick's front-seat passenger was defendant. The Court concludes that Annese's lay opinion identification would "assist in understanding the witness' testimony or determining a fact in issue." N.J.R.E. 701(b). (pp. 23-25)

6. N.J.R.E. 403(a) bars otherwise admissible evidence if its "probative value is substantially outweighed by the risk of . . . [u]ndue prejudice." It would be highly prejudicial to defendant if the jury learned that defendant was on parole after serving a term of incarceration for aggravated manslaughter. The probative value of any such testimony would be substantially outweighed by its prejudicial effect, and N.J.R.E. 403 would thus bar the evidence. Such prejudice, however, can be addressed by sanitizing the testimony, as the Eighth and Ninth Circuits have found. (pp. 25-26)

7. Here, the trial court should direct...