State v. Sanchez

• Decision Date: 22 July 2021
• Docket Number: 084104,A-60 September Term 2019
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Damian SANCHEZ, Defendant-Appellant.
• Court: New Jersey Supreme Court

247 N.J. 450

255 A.3d 1118

STATE of New Jersey, Plaintiff-Respondent,

v.Damian SANCHEZ, Defendant-Appellant.

A-60 September Term 2019

084104

Supreme Court of New Jersey.

Argued January 5, 2021

Decided July 22, 2021

Robert C. Wolf, Cherry Hill, 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, Dover, 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 (Gurbir S. Grewal, Attorney General, attorney; Frank Muroski, of counsel and on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this interlocutory appeal, we consider the admissibility of the lay opinion testimony of defendant Damian Sanchez's parole officer, Cheryl Annese. The parole officer, who had met with defendant more than thirty times as she supervised him on parole, told a detective investigating a homicide and robbery that defendant was the individual depicted in a photograph derived from surveillance video taken shortly after the crimes.

In a pretrial hearing, the trial court excluded Annese's lay opinion testimony on the ground that it did not satisfy N.J.R.E. 701 ’s requirements that the testimony "(a) is rationally based on the witness’ perception; and (b) will assist [the jury] in understanding the witness’ testimony or determining a fact in issue." The Appellate Division granted the State's motion for leave to appeal. It held that the disputed lay opinion testimony met the requirements of N.J.R.E. 701, and that the evidence should not be excluded as unduly prejudicial under N.J.R.E. 403. The Appellate Division accordingly concluded that the trial court abused its discretion when it barred the testimony, and it reversed the trial court's determination.

We granted defendant's motion for leave to appeal. We hold that Annese's lay opinion testimony is rationally based on the witness's perception, and that it 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, we further conclude that 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.

We thus concur with the Appellate Division that the trial court abused its discretion when it barred Annese's lay opinion testimony, and we affirm the Appellate Division's decision.

I.

A.

We derive the facts from the record presented to the trial court.

On September 8, 2017, the Pennsauken Police Department received a 9-1-1 call from two residents regarding the shooting of their neighbor in his apartment. The Police Department dispatched officers to the scene. The officers found the body of J.M., a twenty-five-year-old man, lying face-down on a mattress in his apartment. J.M. had sustained a gunshot wound to the head.

Interviewed by police officers, one of the neighbors who had made the 9-1-1 call stated that she had seen a male wearing a black hoodie over his head enter J.M.’s apartment, and that she heard a loud "boom" seconds later. The neighbor stated that she looked out her window and observed the man she had previously seen wearing the black hoodie, accompanied by a second man with a green hoodie over his head, running away from the building. The neighbor entered J.M.’s apartment, found his body, and saw his girlfriend, J.F., holding their child and trying to dial her cellphone.

J.F. told police that she had been in the apartment with the victim and two of their children when she heard the front door open. She said that she saw a man wearing a mask over his face and black clothing enter the apartment. J.F. stated that the man pulled out a gun, asked J.M. where "the money" was, and shot J.M. in the head before he had the chance to respond. J.F. said that the man then pointed the gun at her and demanded to know where the safe was, and that she showed him a safe that contained approximately $10,000. J.F. told police that a second man, whom she described as a 5’9" Hispanic man with a stocky build, assisted the shooter in removing the safe from the apartment.

J.F. told police that she saw the two men depart in a red or burgundy "older model Buick" with New Jersey license plates, but that she was unable to read the license plate number. Surveillance video taken shortly after the homicide and robbery depicted a burgundy Buick Century occupied by a driver and two passengers leaving the apartment building's parking lot.

Two days after the homicide, the Camden County Prosecutor's Office circulated to law enforcement agencies a flyer entitled "Attempt to Locate." The flyer stated that a "red/burgundy" Buick Century, model year 1997-2005, was "possibly used" in a homicide. The flyer identified the date and location of the homicide.

The flyer included a still photograph derived from the surveillance video. In the photograph, taken from a location slightly above and to the right of the Buick, 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 through the vehicle's open windows.

The flyer stated that "[t]wo individuals in the photograph are described as a Hispanic male, stocky build approx 5’9 and the second male is a thin black male approximately 20-30 years old."

The flyer directed that "[i]f these subjects are located or if anyone has information on their identity," the person with such information should contact the investigating officers.

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.

Codefendant Danny Smith was arrested and charged in connection with the homicide and robbery. Police learned that Smith's girlfriend was the owner of a burgundy Buick similar to the vehicle depicted in the surveillance video. Pursuant to search warrants, investigators reviewed Smith's cellphone and discovered text messages exchanged between defendant and Smith.

B.

1.

A grand jury indicted defendant for first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) ; two counts of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2) ; two counts of first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1(a)(2) ; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) ; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) ; second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b) ; two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2) ; and fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4).

Defendant filed a pretrial motion to exclude Annese's testimony about her identification of defendant as one of the individuals in the surveillance photograph.

The trial court ruled that Annese's testimony was inadmissible as lay opinion testimony under N.J.R.E. 701. It found that the testimony did not satisfy the rule's requirement that the 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 in understanding the witness's testimony or determining a fact in issue in order to be admissible under N.J.R.E. 701. The trial court viewed the proffered evidence to invade the province of the jury.

The trial court held that even if Annese's testimony were to meet the requirements of N.J.R.E. 701, it should be excluded under N.J.R.E. 403. The court concluded that what it viewed to be the sole purpose of the testimony -- to establish the reason why law enforcement investigated and charged defendant -- could be achieved by a detective's testimony that defendant became a suspect based upon information received by law enforcement. The court reasoned that the evidence was highly prejudicial and that no curative instruction could eliminate its prejudicial impact.

The trial court entered an order excluding Annese's lay opinion testimony.

2.

The State moved pursuant to Rule 2:5-6(a) for leave to file an interlocutory appeal. The Appellate Division granted the State's motion.

The Appellate Division distinguished this case from State v. Lazo, 209 N.J. 9, 19-25, 34 A.3d 1233 (2012), in which this Court reversed the defendant's conviction based on the improper admission of testimony from a detective unacquainted with ...