State v. Watson

254 N.J. 558

298 A.3d 1049

STATE of New Jersey, Plaintiff-Respondent,

v.Quintin D. WATSON, Defendant-Appellant.

A-23 September Term 2022

087251

Supreme Court of New Jersey.

Argued March 27, 2023

Decided August 2, 2023

Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Lauren S. Michaels and Ashley T. Brooks, Assistant Deputy Public Defender, of counsel and on the briefs).

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Nancy A. Hulett, of counsel and on the briefs).

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

Joseph A. Hayden, Jr., Hackensack, argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; Joseph A. Hayden, Jr., on the brief).

Ian S. Marx argued the cause for amicus curiae The Innocence Project (Greenberg Traurig and The Innocence Project, Inc., attorneys; Ian S. Marx, Florham Park, Caroline J. Heller (Greenberg Traurig) a member of the New York bar, admitted pro hac vice, M. Chris Fabricant (The Innocence Project, Inc.) a member of the New York bar, admitted pro hac vice, and Anton Robinson (The Innocence Project, Inc.) a member of the New York and Florida bars, admitted pro hac vice, on the brief).

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

CHIEF JUSTICE RABNER delivered the opinion of the Court.

Defendant Quintin Watson was convicted of bank robbery after a jury trial. The evidence against him included testimony from a teller, who identified defendant for the first time in court, and from the lead detective, who narrated a bank surveillance video for the jury. This appeal raises two principal issues: (1) the propriety of first-time in-court identifications, and (2) the extent to which investigators may narrate video recordings.

In the case of first-time in-court identifications, witnesses are asked if they can identify their culprit long after the crime took place. They see a single individual seated at the defense table beside a lawyer. And it is evident the prosecution team believes that person is the culprit. The inherently suggestive nature of the procedure, conducted in front of a jury, evades well-settled protections that the law provides. It therefore risks depriving defendants of their due process rights. To avoid unduly suggestive identifications in court that can trigger serious due process concerns, we hold that first-time in-court identifications may only be conducted when there is good reason for them. In addition, before attempting to conduct a first-time in-court identification, the State must give fair notice to the defense.

As to narration evidence, an investigator who has carefully reviewed a video recording can satisfy the "perception" prongs under N.J.R.E. 701 and 602 and the "helpfulness" prong under N.J.R.E. 701 and offer lay witness testimony. By drawing attention to key details that a jury might otherwise overlook -- as is the case, for example, with a potentially confusing, complex, or unclear recording -- such evidence can be particularly helpful.

Although an investigator's specific comments can assist a jury in determining facts in issue, the rules of evidence do not allow for continuous, running commentary on video evidence by someone who has merely studied a recording. We therefore identify certain safeguards to underscore the limited use of narration evidence: investigators should give focused responses to specific questions; they can provide objective, factual comments but not subjective interpretations; they may not comment on facts that are reasonably in dispute, which should be left for the jury to decide; and they should not offer testimony based on inferences drawn from other evidence.

In addition, a party that intends to present narration evidence should provide opposing counsel a written summary of the proposed testimony before trial. The parties can then ask the court to address any disputed areas at a Rule 104 hearing.

We also briefly address a question related to the Confrontation Clause.

The evidence before the jury in this case ran afoul in all three areas. Based on the identification evidence alone, defendant's conviction cannot stand. We therefore reverse the judgment of the Appellate Division, which upheld the conviction, and remand for a new trial.

I.

A.

Shortly before noon on January 14, 2017, an individual robbed a bank in North Brunswick. A single teller and the branch manager were on duty when the robber entered the bank at about 11:53 a.m. He wore a baseball cap and gloves. The robber opened the bank's exterior and interior doors with his gloved right hand, removed his gloves, and approached the teller window. He then put a note on the counter that read, "everything now."

The teller first emptied the top drawer at his station. At the robber's direction, he removed cash from the bottom drawer as well. The robber took the cash -- which totaled $5,772 -- and left the bank. He placed his bare left hand on both interior door handles and then pushed open the exterior door with his left elbow.

Bank surveillance footage captured the entire robbery. It lasted all of 57 seconds. Neither the manager nor any of the few customers in the bank at the time realized what had happened.

The North Brunswick Police Department responded soon after the robbery. The teller told the police the suspect was Black, muscular, around six-foot-two or six-foot-three, and had an accent. Sergeant Frank Vitelli, Jr., the lead detective, checked the area for possible DNA evidence but found none. He lifted seven fingerprints from the door handles and counter, but none matched any fingerprints in the State Police database. Sergeant Vitelli also sent a bulletin known as a TRAKs message to other law enforcement agencies. It contained information about the robbery and a still photo of the suspect from the bank surveillance video.

Nine months later, in October 2017, J.H. -- whom we refer to as Joan -- read a newspaper article and saw an accompanying photo of a man wanted in connection with a different bank robbery in Princeton. She recognized the person in the photo as defendant Quintin Watson, her former boyfriend. Joan had dated and lived with defendant for four years. They broke up in 2012 when defendant told Joan he was leaving her for another woman who was pregnant. Defendant later married the other person.

Joan contacted the police and ended up speaking with officers about two other bank robberies in Somerset County. Based on Joan's identification and other evidence, defendant was charged in three robberies in November 2017: the one in Princeton and two in Somerset County.

According to the State, Somerset County officials contacted the North Brunswick Police Department that same month and suggested they investigate defendant for the January 2017 robbery in North Brunswick -- the subject of this appeal. After viewing surveillance footage from the Somerset robberies, the North Brunswick Police Department charged defendant in November 2017 with the bank robbery in North Brunswick. A grand jury in Middlesex County later indicted him for the robbery, contrary to N.J.S.A. 2C:15-1.

On September 25, 2018, 20 months after the robbery, a detective with the Middlesex County Prosecutor's Office showed the teller six photos, one at a time, and asked if he could identify the person who robbed the bank. The teller picked a photo of someone other than defendant Quintin Watson and said at trial that he was 75 to 90 percent sure of the identification. On cross-examination, he said he had been 85 percent sure.

The next month, October 2018, the Prosecutor's Office showed Joan a single still photo taken from the bank surveillance video. She said she was 100 percent positive the photo depicted defendant.

The State filed a pretrial motion to admit evidence of the other three robberies at trial. The trial court denied the motion and provided guidance about what Joan could say about her initial contact with the police. In addition, the trial court explained it would allow limited, sanitized testimony from a North Brunswick police officer about prior contacts he had with another law enforcement agency.

A two-day trial was conducted in November 2018 -- 22 months after the robbery. We focus on three points relevant to this appeal.

B.

1.

First, the prosecutor asked the teller if he could identify the robber in court. The teller identified defendant, who was seated in between his lawyers at counsel table. The teller said he was "maybe like ... 80 percent" sure. The prosecution did not provide advance notice of the in-court identification, and defense counsel did not object to it.

During cross-examination, the teller revealed that he had met with the prosecutor prior to trial. This exchange followed:

DEFENSE COUNSEL: And [the prosecutor] informed you what was going to happen today, right?

TELLER: Yes.

DEFENSE COUNSEL: And he informed you that the individual who was accused of committing this robbery is in court seated at the defense table, right?

TELLER: Yes, he did.

The State asked no follow-up questions on that point.

Joan also testified at trial. She was shown two still photos from the bank surveillance video and testified she was 100 percent positive that each depicted defendant. She later confirmed that the top 20 to 25 percent of the robber's face was not visible in the photo she had viewed before and at trial. Because the suspect wore a hat pulled down over his eyes, it was not possible to see the person's eye color or whether he had hair.

2.

Second, Sergeant...