State v. Watson

• Citation: 472 N.J.Super. 381,277 A.3d 39
• Decision Date: 06 June 2022
• Docket Number: DOCKET NO. A-0235-19
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Quintin D. WATSON, Defendant-Appellant
• Court: New Jersey Superior Court — Appellate Division

472 N.J.Super. 381

277 A.3d 39

STATE of New Jersey, Plaintiff-Respondent,

v.Quintin D. WATSON, Defendant-Appellant,

DOCKET NO. A-0235-19

Superior Court of New Jersey, Appellate Division.

Argued March 16, 2022

Decided June 6, 2022

Ashley T. Brooks, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ashley T. Brooks, 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).

Before Judges Hoffman, Geiger and Susswein.

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

Defendant appeals from his jury trial conviction for second-degree robbery of a bank and from the imposition of an extended term of imprisonment as a persistent offender. He contends that the trial court committed several errors, some of which are raised for the first time on appeal. Specifically, defendant asserts that the trial judge erred by (1) permitting the jury to hear testimony that the investigating police agency consulted with another police department before filing criminal charges, violating defendant's Sixth Amendment rights under the Confrontation Clause; (2) allowing a police witness to render improper lay-witness opinion testimony by narrating a surveillance video as it was shown to the jury and by commenting on screenshot photographs; (3) permitting the victim to identify defendant at trial after he had misidentified another person in an out-of-court photo array identification procedure, and then failing to modify the model jury charge sua sponte to highlight the inherent suggestiveness of the in-court identification; (4) failing to tailor the robbery model jury charge sua sponte by commenting on whether the note the robber showed to the bank teller demanding money evinced an implied threat to cause immediate bodily injury; (5) double counting defendant's prior convictions and inappropriately considering arrests that did not result in convictions when determining the extended-term prison sentence as a persistent offender; and (6) imposing restitution without determining defendant's ability to pay it. With respect to the last contention, the State acknowledges that the trial court did not make a finding on defendant's ability to pay restitution.

After carefully reviewing the record in light of the applicable principles of law and the arguments of the parties, we affirm defendant's conviction and extended-term prison sentence. We remand solely for the purpose of conducting a hearing on defendant's ability to pay the amount of restitution that was imposed.

In affirming defendant's robbery conviction, we conclude that the trial court erred in permitting the officer to testify that he had been contacted by and consulted with another police department just before filing the criminal complaint charging defendant with robbery. The trial court convened an in limine hearing to discuss this testimony and sought to balance competing interests: the need to explain to the jury why defendant's former girlfriend came forward to identify him nearly a year after the bank robbery, on the one hand, against, on the other hand, the need to keep the jury from learning that the other police department was investigating defendant's involvement in other bank robberies not charged in the present indictment. We conclude that the trial court abused its discretion in striking the balance between those competing interests because it did not address whether the officer's testimony would infringe upon defendant's Confrontation Clause rights. We believe that the testimony violated defendant's Sixth Amendment rights because it implied that the other police department possessed incriminating evidence that was not presented to the jury. However, we conclude that the constitutional error in allowing the officer to briefly mention the consultation with the other department was harmless beyond a reasonable doubt.

We conclude that the trial court did not abuse its discretion by allowing a police witness to narrate surveillance video as it was being played to the jury. We decline to substitute our judgment for the trial court's in determining whether the officer's narration comments were helpful to the jury in understanding what was being shown in the video. We note that the admission of surveillance video recordings at trial is becoming more common because of the proliferation of government, commercial, and residential surveillance cameras. To improve the process by which police narration testimony is scrutinized, we recommend a new practice and procedure whereby a trial court would conduct a Rule 104¹ hearing whenever the prosecutor intends to present narration testimony in conjunction with playing a video recording to the jury. At the in limine hearing, the court should consider and rule upon narration comments that will be permitted and those that will be foreclosed, providing clear instructions for the witness to follow. That would obviate the need for a series of spontaneous objections in the presence of the jury as well as the need to issue curative instructions when an objection is sustained. We also propose that the Committee on Model Criminal Jury Charges (Model Jury Charge Committee) consider whether it would be appropriate to draft a model instruction specifically tailored to address testimony that narrates or otherwise comments on video recordings as they are being played to the jury.

We reject defendant's contention, raised for the first time on appeal, that the trial court erred by allowing the bank teller to make an in-court identification after having selected the photograph of another person from a photo array. Defendant asks us to ban all "first-time" in-court identifications or at least in-court identifications where the witness had previously misidentified the culprit in an out-of-court identification procedure. He also argues that the trial court on its own initiative should have revised the model jury charge to explain the inherent suggestiveness of the in-court identification procedure. We conclude that the trial court did not commit error, much less plain error, in following the law as it presently stands by permitting the in-court identification. We decline to impose new bright-line preconditions on when an eyewitness may be asked to identify the perpetrator at trial.

We further conclude that the judge did not commit plain error by reading verbatim the current model jury instructions that were developed after the New Jersey Supreme Court's landmark decision in State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011). However, we believe the time has come to carefully review the current model jury charges pertaining to in-court identifications. The social science evidence and case law suggest it would be appropriate to update those model jury instructions, for example, by borrowing language now used to explain the suggestiveness of out-of-court "showup" identifications to inform juries as to the comparable risk of misidentification during an in-court identification. We therefore recommend that the Model Jury Charge Committee review the scientific literature in view of the relevant case law to determine whether revisions to the model charges pertaining to in-court identifications are warranted.

We also reject defendant's arguments that the trial court erred in failing to tailor the robbery model jury charge instructions sua sponte and that it improperly imposed the extended-term prison sentence.

I. PROCEDURAL HISTORY, FACTS, AND ISSUES RAISED ON APPEAL

We discern the following pertinent facts and procedural history from the record. On January 14, 2017, Christian Gambarrotti was working as a teller at a bank in North Brunswick. Around noon, a man entered the bank and approached Gambarrotti's teller window.

The man was African-American, approximately six foot two inches, muscular, and wore a hat. The man pointed to a note he placed on the counter which read "everything now." Gambarrotti was not initially sure what the note meant until he looked up at the man, who "reassured what it meant" and stated "now." In accordance with his prior training, Gambarrotti did "not make a scene and [gave] out the cash" to the man. Specifically, Gambarrotti emptied the cash from his top and bottom drawers behind the counter. He also gave the man a stack of one-dollar bills. In total, Gambarrotti provided over $5,000 to the robber. However, he forgot to give the man "bait money," which contains serial numbers that banks record. After receiving the cash, the man retrieved the note, told Gambarrotti "to get home safe," and walked out of the bank.

After the robber left the bank, Gambarrotti walked outside to see if he was still in the vicinity and to get "a better glimpse of [what] he looked like." There was no sign of the man. Gambarrotti then went back inside the bank to notify his manager of the robbery. The manager "hit the alarm [and] ... called the police." No one else present in the bank knew that a robbery had occurred until after Gambarrotti notified them.

North Brunswick Police Officer Frank Vitelli, Jr., responded to the bank where he interviewed three bank customers, the bank manager, and Gambarrotti. Officer Vitelli then "dusted [for] ... fingerprints" on the entrance door handles and on the counter at Gambarrotti's teller window. He collected seven fingerprints and later submitted them to the State Police Automated Fingerprint Identification System (AFIS).

Officer Vitelli also obtained surveillance video from the bank. Police canvassed the local area around the bank to see if any other surveillance cameras captured footage of the robbery or flight. Police located a video camera at a convenience store approximately fifty to seventy-five yards away from the bank.

The surveillance video from inside the bank showed the robber entering the bank wearing gloves, a...