STATE OF NEW JERSEY v. KAREEM D. WHITE (18-06-0334, MERCER COUNTY AND STATEWIDE) ( 2022 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2536-18
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    KAREEM D. WHITE,
    Defendant-Appellant.
    _______________________
    Argued May 18, 2022 – Decided July 29, 2022
    Before Judges Gilson, Gooden Brown and Gummer.
    On appeal from the Superior Court of New Jersey, Law
    Division, Mercer County, Indictment No. 18-06-0334.
    John P. Flynn, Assistant Deputy Public Defender,
    argued the cause for appellant (Joseph E. Krakora,
    Public Defender, attorney; John P. Flynn, on the briefs).
    Jeffrey C. McElwee, Jr., Assistant Prosecutor, argued
    the cause for respondent (Angelo J. Onofri, Mercer
    County Prosecutor, attorney; Monica Martini, Assistant
    Prosecutor, of counsel and on the brief).
    PER CURIAM
    A jury convicted defendant Kareem D. White of second-degree certain
    persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1). The primary evidence
    against defendant consisted of video footage from surveillance cameras.
    Because the detective who narrated the videos made statements that were
    beyond a neutral narration and invaded the province of the jury, we reverse
    defendant's conviction and remand for a new trial.
    I.
    We discern the facts from the evidence presented at defendant's trial. Just
    before 5:00 p.m. on December 17, 2017, a shooting was reported near apartment
    buildings located on Oakland Street in Trenton. Police officers responded but
    were unable to locate any witnesses or evidence that a shooting had occurred.
    The following morning, members of the Mercer County Shooting
    Response Team (Response Team) canvassed the area of 160 to 166 Oakland
    Street. Detective Kevin Reading, a member of the Response Team, viewed and
    obtained copies of surveillance video footage from two different cameras
    located on apartment buildings at 160 and 166 Oakland Street. The video
    footage from December 17, 2017, at approximately 4:57 p.m., showed that two
    men had approached a parked car, had raised their arms, and had pointed objects
    towards the car. The video also showed a third man had gotten out of the car,
    A-2536-18
    2
    initially appeared to take cover behind the car, had raised his arm, and had
    extended an object from which a flash of light appeared. The two men then ran
    away from the car, with one of them briefly taking cover behind a tree. The man
    who had gotten out of the car, thereafter, ran down the sidewalk and out of view
    of the cameras.
    It appears that when the cameras were recording that incident, the sun had
    already set because what was captured on the videos was not clearly illuminated.
    Accordingly, the three individuals depicted on the video could not be seen
    clearly. Moreover, the video footage of the man who had exited the car was not
    clear enough to identify what the man looked like, nor did the video footage
    clearly depict how he was dressed.
    Using the video footage, members of the Response Team were able to
    locate eight 9-millimeter shell casings in an area where one of the men depicted
    in the video footage had hidden behind a tree. They also found two .45 caliber
    shell casings nearby on the street.
    Law enforcement personnel also obtained video footage from surveillance
    cameras located at a deli across the street from where the police believed the
    shooting had occurred. That video footage did not capture the shooting but
    depicted several men standing outside the deli approximately an hour before the
    A-2536-18
    3
    shooting was reported.    When Detective Reading reviewed the deli video
    footage, he recognized defendant. Reading later explained that he had seen
    defendant approximately six to twelve times before December 17, 2017.
    Reading also showed the deli video footage to Trenton Police Department
    officers Nathan Bolognini and Anthony Manzo. Bolognini and Manzo also
    recognized defendant from previous encounters that they had had with him.
    Based on the video footage from the apartment buildings, the police
    identified the car from which the man had exited as a Plymouth Sundance. The
    police located the Plymouth Sundance parked on Oakland Street the day after
    the reported shooting and a search of the Sundance disclosed a bullet fragment.
    Through further investigation, the police learned that defendant and his half-
    brother, Euquan Jackson, co-owned the Plymouth Sundance.
    In June 2018, defendant was indicted for ten crimes, including six counts
    of aggravated assault and four weapons offenses.       Before trial, the State
    dismissed all charges except the charge of second-degree certain persons not to
    possess a weapon.
    At the beginning of the trial, defendant moved in limine to preclude the
    State from narrating the video footage and to bar Reading, Bolognini, and Manzo
    from identifying him. After conducting a Rule 104 hearing outside the presence
    A-2536-18
    4
    of the jury, the trial court denied both motions. The court ruled that the State
    could have Reading narrate the videos. In making that ruling, the trial court
    explained on the record:
    We talked a little about the narration and as I advised
    counsel, I think allowing - - and I think that the State is
    proffering Reading as going to nar - - not narrate blow-
    by-blow the video. But once the video is shown,
    orientating the jury as to what they're looking at, what
    direction they're looking and then pointing out, not
    referring to the Defendant on the video where he doesn't
    recognize him as the Defendant but where he might
    recognize one or two or more people shooting. But he
    can - - can't say with any certainty what they're doing
    but he can indicate that it appears this person is
    extending his arm. It appears he's got an object in his
    hand. You see a flash; things of that nature. And then
    on the deli video, whenever he makes the
    [identification], he can indicate that. And again, state
    - - letting the jury know where they're - - in what
    direction they're looking, because I think the car that's
    at issue is contained in both videos but different angles,
    things of that nature.
    The court also ruled that Detective Reading could not state that any of the
    men depicted in the video footage were holding a firearm. Concerning the
    identification, the court ruled that Reading, Bolognini, and Manzo could identify
    defendant as a person they saw standing outside the deli.
    A-2536-18
    5
    At trial, the State offered into evidence several videos from the
    surveillance cameras on the apartment buildings and at the deli. After those
    videos were entered into evidence, Reading narrated the videos.
    Before showing the footage from the apartment buildings, the assistant
    prosecutor asked Reading: "Now, what did you see when you viewed that
    footage?" Reading responded:
    I observed three individuals exchanging gunfire in front
    of that building. Two individuals were on foot and one
    individual was occupying a parked vehicle in front of
    the building.
    Thereafter, as the jury was shown two video clips from two different security
    cameras depicting the alleged shooting, Reading narrated for the jury what he
    observed on those videos. At times, the State played portions of the video in
    slow motion, pausing at various frames, and Reading narrated what he saw
    depicted.
    Initially, Reading identified a Plymouth Sundance parked in between an
    Oldsmobile Intrigue and a Hyundai Sonata. The State believed that the shooting
    was depicted on approximately fifteen seconds of the video footage. The State
    played those fifteen seconds in slow motion three times with Reading narrating
    the movements of the three people depicted each time.
    A-2536-18
    6
    Reading testified that the first person appearing in the footage walked
    towards the Sundance with his right hand in his pocket, removed his hand from
    his pocket holding an object, took a "wider stabilized stance," and "point[ed]"
    the object at the Sundance. Reading also stated that seconds later, the first
    person is seen "reacting and he's -- essentially, he's moving. He's being evasive,
    moving towards the left. . . . [His] right arm is up, pointing at the Sundance, still
    holding an object."
    Reading stated that the second person in the footage appeared to be
    wearing a black hooded shirt with his hands in his pockets and he followed
    behind the first person. Reading then explained that the second person was
    "reacting. He is taking a low stance, a squatting stance, if you will, but he's
    staying low. He just reacted to something . . . . He's being evasive. He's moving
    right. He's placing himself behind a tree that is situated between him and the
    Plymouth Sundance." Reading then testified that the second person pointed his
    right arm in the direction of the Sundance and appeared to be holding an object.
    Concerning the third person in the video, Reading testified that person got
    out of the driver's side of the Sundance and lowered himself behind the car.
    According to Reading, the third person then stood and began to raise his arm
    and that "after that individual raised his arms, that is a bright flash coming from
    A-2536-18
    7
    the area of his arms." The court then admitted into evidence a photograph taken
    from the video that depicted an individual near the car and a bright flash. Next,
    Reading was shown a photograph of the man running from the car; that
    photograph was admitted into evidence as State Exhibit 10.               Reading
    acknowledged that he could not identify the third man based on the image.
    Nevertheless, Reading described the individual depicted in the photograph as an
    "African-American male, wearing a black cap, black long-sleeve hooded shirt.
    There's the light-colored, white like emblem on the left chest area, light-colored
    pants and black shoes."
    The State then had Reading do a similar individual-by-individual narrative
    of the video clip taken from the second surveillance camera that showed a
    different angle of the incident.
    Reading was then shown video footage from the cameras at the deli.
    Viewing the video clip taken approximately an hour before the alleged shooting,
    the assistant prosecutor asked Reading if he saw anyone on the footage matching
    the description he gave of the individual exiting the Sundance in State Exhibit
    10. Reading answered yes and testified that he saw an African-American man
    wearing a black Nike sweatshirt, light-colored jeans, black sneakers, and a black
    mask that covered a portion of his face. Reading testified that the person
    A-2536-18
    8
    standing outside the deli appeared to be the same person who had exited the
    Plymouth Sundance during the incident.
    Reading was then shown two different video clips from other cameras at
    the deli. Reading identified defendant as one of the men depicted in the videos.
    Reading was also shown five photographs taken from the video, and he testified
    that the individual depicted in those photographs was defendant.            The
    photographs were admitted into evidence as State Exhibits 36 to 40. Reading
    testified that he was familiar with people in the neighborhood from prior
    investigations he had conducted with the Response Team. He explained that he
    had seen defendant approximately six to twelve times prior to investigating the
    incident on December 17, 2017. Reading also identified defendant in court.
    Reading identified defendant in other video footage from inside and
    outside the deli. As part of that testimony, Reading stated that he observed the
    man he believed to be defendant walk across the street and get into the Plymouth
    Sundance at approximately 4:04 p.m. on December 17, 2017.
    On cross-examination, Reading conceded that a cell phone, a camera, a
    mirror, or a cigarette lighter could have produced a flash or a little flame. On
    re-direct, Reading was allowed to opine that the flashes seen in the video were
    consistent with a muzzle flash from a firearm.
    A-2536-18
    9
    Bolognini and Manzo both testified at trial concerning the out-of-court
    identification of defendant from the video footage taken from the deli.
    Bolognini explained that he had spoken to defendant many times in the
    neighborhood. Manzo testified that he had been a police officer in Trenton for
    more than thirty years, had previously worked at the deli as a security guard,
    and knew defendant because defendant had frequented the deli. Bolognini and
    Manzo also identified defendant in court.
    After conducting a Rule 104 hearing outside the presence of the jury, the
    trial court also allowed the State to present testimony about, and submit into
    evidence, a picture of Euquan Jackson.       Defense counsel objected to that
    testimony and photograph, contending that the State had failed to produce the
    photograph before trial. The trial court rejected that argument.
    After hearing the testimony and considering the evidence, the jury found
    defendant guilty of the one charge against him at trial: second-degree certain
    persons not to have a weapon. Thereafter, defendant was sentenced to eight
    years in prison with five years of parole ineligibility. He now appeals from his
    conviction and sentence.
    II.
    On appeal, defendant presents five issues for our consideration:
    A-2536-18
    10
    POINT I – THE DETECTIVE'S NARRATION OF
    SECURITY VIDEOS WAS IMPROPER UNDER
    N.J.R.E. 701 AND INFRINGED ON THE JURY'S
    ROLE TO DETERMINE WHETHER THE MAN
    EXITING      THE   PLYMOUTH    SUNDANCE
    POSSESSED A GUN.
    POINT II – THE REPEATED IDENTIFICATIONS OF
    [DEFENDANT]       BY    THREE     OFFICERS
    CONSTITUTED NEEDLESSLY CUMULATIVE
    EVIDENCE UNDER N.J.R.E. 403 AND HAD THE
    CAPACITY TO UNFAIRLY SUGGEST THAT
    [DEFENDANT] WAS INVOLVED IN PREVIOUS
    SHOOTINGS.
    POINT III – THE STATE'S CLEAR VIOLATION OF
    ITS OBLIGATION TO PROVIDE CONTINUING
    DISCOVERY, COUPLED WITH OBJECTED-TO
    PROSECUTORIAL          MISCONDUCT       IN
    SUMMATION EXPLOITING THIS VIOLATION,
    DEPRIVED [DEFENDANT] OF A FAIR TRIAL.
    A.   The Photograph of Euquan Jackson Should have
    been Excluded Because the State Violated its
    Duty to Provide Continuing Discovery Under
    Rule 3:13-3 by Failing to Disclose the
    Photograph when it Was Obtained by the
    Prosecutor's Detective Prior to Trial.
    B.   The Unfair Surprise from this Discovery
    Violation, made Worse by Objected-To
    Prosecutorial    Misconduct in     Summation
    Denigrating the Defense, Requires the Reversal
    of [Defendant]'s Conviction.
    POINT IV – THE CUMULATIVE EFFECT OF THE
    ABOVE ERRORS DEPRIVED [DEFENDANT] OF A
    FAIR TRIAL.
    A-2536-18
    11
    POINT V – THE MATTER SHOULD BE
    REMANDED FOR RESENTENCING BECAUSE
    THE LEGISLATURE HAS ENACTED A NEW
    MITIGATING FACTOR REGARDING YOUTH
    THAT APPLIES TO [DEFENDANT]'S CASE.
    We need to reach only the first issue presented by defendant. Having
    reviewed the testimony and evidence at trial, we conclude that certain parts of
    the narration of the videos by Detective Reading were improper and
    inadmissible.   In that regard, portions of Reading's narration were without
    evidentiary support, invaded the province of the jury, and violated N.J.R.E. 701.
    Those parts of Reading's narration were so prejudicial that they deprived
    defendant of a fair trial. Consequently, we are compelled to vacate defendant's
    conviction and remand for a new trial.
    A.    The Trial Court's Admission of the Narrative Testimony.
    Defendant moved in limine to preclude any police officer from narrating
    the video footage. The trial court properly conducted a Rule 104 hearing outside
    the presence of the jury and ultimately determined that Reading could provide
    some narration. In making that ruling, the trial court gave some guidance on the
    scope of the narration but did not detail the specific questions and responses that
    would and would not be allowed.
    A-2536-18
    12
    "[T]he determination of whether a person is competent to be a witness lies
    within the sound discretion of the trial judge." State v. G.C., 
    188 N.J. 118
    , 133
    (2006) (quoting State v. Savage, 
    120 N.J. 594
    , 632 (1990)). "[A] trial court's
    evidentiary rulings are entitled to deference absent a showing of an abuse of
    discretion, i.e., there has been a clear error of judgment." State v. Singh, 
    245 N.J. 1
    , 12-13 (2021) (alteration in original) (quoting State v. Nantambu, 
    221 N.J. 390
    , 402 (2015)).
    B. The Law on the Scope of Permissible Narration of Video Footage.
    Video footage that captures an incident, which is not witnessed in real
    time, presents a somewhat unique evidentiary issue: once authenticated, should
    the video simply be played for the jury, or can someone narrate to the jury what
    is depicted in the video? To date, the New Jersey Supreme Court has not
    delineated what is and what is not permissible narration. Instead, existing
    Supreme Court cases that discuss narration testimony have focused on the
    propriety of specific narrative comments rather than the general format of the
    testimony. See State v. Sanchez, 
    247 N.J. 450
    , 466-67 (2021); Singh, 245 N.J.
    at 19-20; see also State v. Lazo, 
    209 N.J. 9
    , 22-24 (2012). When the issue has
    arisen, the question has focused on whether a specific comment by the narrator
    is purely factual or is a lay opinion. See Singh, 245 N.J. at 14-15. Accordingly,
    A-2536-18
    13
    the Court has evaluated the admissibility of narrative testimony under N.J.R.E.
    701. See Sanchez, 247 N.J. at 466; Singh, 245 N.J. at 14.
    In Singh, the Court addressed lay opinion testimony relating to video
    surveillance recordings. The defendant in that case challenged testimony from
    a detective who had twice referred to the person shown in the surveillance video
    as "the defendant." Id. at 18. The detective further commented that the sneakers
    worn by the suspect in the surveillance video looked like sneakers found on
    defendant the night he was arrested. Id. at 19.
    The Court began its analysis by examining the purpose and boundaries of
    N.J.R.E. 701, which provides:
    If a witness is not testifying as an expert, the witness'
    testimony in the form of opinions or inferences 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.
    The Court in Singh determined that it was an error for the trial court to
    allow the detective to refer to the suspect in the video as "the defendant" but
    ultimately concluded that those fleeting references were harmless. Id. at 17.
    The Court also concluded that there was no error in allowing the detective to
    A-2536-18
    14
    testify that the sneakers he saw in the video were like the sneakers the defendant
    had been wearing on the night he was arrested. Id. at 17-19. The Court reasoned
    that although "the jury may have been able [on its own] to evaluate whether the
    sneakers were similar to those in the video[, that] does not mean that [the
    detective's] testimony was unhelpful. Nor does it mean that [the detective's]
    testimony usurped the jury's role in comparing the sneakers." Id. at 20.
    In Sanchez, the Court focused on whether a parole officer could offer a
    lay opinion identifying the defendant as a suspect in a still-frame image taken
    from a surveillance video. 247 N.J. at 458. Specifically, the Court considered
    whether it was an improper lay opinion for a "parole officer, who had met with
    [the] defendant more than thirty times as she supervised him on parole, [to tell]
    a detective investigating a homicide and robbery that [the] defendant was the
    individual depicted in a photograph derived from surveillance video taken
    shortly after the crimes." Id. In analyzing that issue, the Court compiled a non-
    exhaustive list of four factors to consider in determining whether lay opinion
    testimony will assist the jury in a case. Id. at 473. Those factors include (1)
    "the nature, duration, and timing of the witness's contacts with the defendant";
    (2) "if there has been a change in the defendant's appearance since the offense
    at issue"; (3) "whether there are additional witnesses available to identify the
    A-2536-18
    15
    defendant at trial"; and (4) "the quality of the photograph or video recording at
    issue." Id. at 470-73. The Court stressed that no single factor will be dispositive.
    Id. at 473-74 (citing Lazo, 
    209 N.J. at 20-24
    ). The Court in Sanchez ultimately
    determined that the parole officer's testimony was based on her perceptions of
    having met with the defendant more than thirty times and, therefore, her
    testimony was admissible and helpful to the jury. Id. at 475.
    This court recently considered the standard for determining if police
    video-narrated testimony was properly admitted. State v. Watson, ___ N.J.
    Super. ___, ___ (App. Div. 2022) (slip op. at 64-107). After reviewing existing
    relevant New Jersey Supreme Court precedent, we held there is no categorical,
    per se rule that prohibits video narration testimony. Watson, ___ N.J. Super. at
    ___ (slip op. at 65). "Rather, the critical fact-sensitive issue to be decided on a
    case-by-case, indeed, question-by-question basis is whether a specific narration
    comment is helpful to the jury and does not impermissibly express an opinion
    on guilt or on an ultimate issue for the jury to decide." Ibid.
    In Watson, we distilled general principles related to lay witness opinion
    testimony and adapted those principles to the specific context of a "play-by-
    play" narration of video recordings.      Id. at 70-71.    We recognized certain
    principles that were already clearly established. For example, we pointed out
    A-2536-18
    16
    that existing case law made it "clear that it is impermissible for a police witness
    to testify at trial as to a defendant's guilt or an ultimate issue to be decided by
    the jury." Id. at 83. "Relatedly, the law also is clear that there are significant
    restrictions on when a police witness may offer a lay opinion on whether
    defendant is the person shown in a video recording or screenshot in cases where
    the identity of the culprit is at issue." Ibid. We pointed out that an objective
    description of what is depicted in a video will generally be admissible, but
    subjective commentary needs to be carefully analyzed. In that regard, we drew
    "a fundamental distinction between narration testimony that objectively
    describes an action or image on the screen (e.g., the robber used his elbow to
    open the door) and narration testimony that comments on the factual or legal
    significance of that action or image (e.g., the robber was careful not to leave
    fingerprints)." Id. at 89.
    The critical inquiry in defining the scope of permissible video-narration
    testimony is the second prong of N.J.R.E. 701: "whether the narration testimony
    would be helpful to the jury by shedding light on the determination of a disputed
    factual issue." Id. at 92. "If the jury needs no assistance to fully understand the
    contents of the video, then narration commentary would tread upon the role of
    the jury under N.J.R.E. 701 analysis." Id. at 92-93.
    A-2536-18
    17
    Ultimately, in Watson, we identified six factors to guide trial courts in
    safeguarding the province of the jury from unwarranted intrusion by narration.
    Id. at 95. Those factors include (1) if the video-narration testimony would
    provide helpful background context; (2) if the testimony would explain the
    duration of the video and be focused on isolated events or circumstances; (3) if
    a narrative comment would pertain to a fact in dispute; (4) if a narrative
    comment would be based on an inference or deduction supported by other facts
    in evidence; (5) the clarity and resolution of the video recording; and (6) whether
    the narration testimony would be helpful in focusing the jury's attention if a
    video is complex or contains distracting images. Id. at 95-100.
    C.    The Application of the Law to the Narration Provided by Detective
    Reading.
    We hold that Reading overstepped the permissible bounds of video -
    narration in three areas of his testimony. Although defense counsel did not
    object to certain of Reading's comments, defense counsel had effectively
    preserved all objections by moving to preclude any narration of the videos. See
    State v. Hernandez, 
    334 N.J. Super. 264
    , 268 n.1 (App. Div. 2000), aff'd as
    modified and remanded, 
    170 N.J. 106
     (2001); R. 1:7-2. Moreover, even if we
    were to apply a plain error standard of review, all the errors were "clearly
    capable of producing an unjust result." R. 2:10-2; see also State v. R.K., 220
    A-2536-18
    
    18 N.J. 444
    , 456 (2015) (explaining that an "error will be disregarded unless a
    reasonable doubt has been raised whether the jury came to a result that it
    otherwise might not have reached").
    Our analysis is based in part on our review of the video footage. We
    typically defer to a trial court's fact findings, even where those findings are
    based solely on video that is equally available to the appellate court. State v.
    S.S., 
    229 N.J. 360
    , 379-81 (2017). Here, however, the trial court did not make
    findings of fact regarding what the videos depicted. We also note that there are
    no reasonable factual disputes concerning what the videos do and do not show.
    Reading's narrative testimony violated N.J.R.E. 701 when he (1)
    introduced the video footage of the incident as depicting "three individuals
    exchanging gunfire"; (2) described the clothing worn by the person who had
    exited the Sundance and repeatedly stated that that person appeared to be the
    same person whom he identified as defendant in the videos from the deli; and
    (3) opined that the flashes seen in the video of the incident were consistent with
    flashes from the muzzle of a gun.
    Initially, we place those three errors in context. The State presented no
    witness who had seen the alleged shooting incident. The primary evidence was
    video footage that was not monitored in real time. Reading and the jury had the
    A-2536-18
    19
    same source of knowledge regarding the incident: the videos. And the jury
    could see the same things on the videos that Reading observed.
    To convict defendant as a person not to possess a weapon, the State had
    to prove beyond a reasonable doubt that (1) defendant was one of the persons
    depicted in the video of the incident; and (2) defendant possessed a gun during
    the incident. See N.J.S.A. 2C:39-7(b), (c); Model Jury Charges (Criminal),
    "Certain Persons Not To Have Any Firearms (N.J.S.A. 2C:39-7(b)(1))" (rev.
    Feb. 12, 2018).
    The State's theory at trial was that all three individuals depicted in the
    video of the incident had handguns.          If only the two individuals seen
    approaching the Sundance had guns, defendant could not be found guilty.
    Consequently, the shell casings and bullet fragment found after the alleged
    shooting did not establish defendant had a gun.
    In that context, Reading's first statement that the video of the incident
    depicted "three individuals exchanging gunfire in front of the build ing" was
    inadmissible, subjective testimony that went beyond what is permitted under
    N.J.R.E. 701. The State conceded, as it had to, that the incident in the video was
    not clearly a shooting. Indeed, at the 104 hearing, the trial court expressly ruled
    that Reading could not state that the three individuals were holding guns.
    A-2536-18
    20
    Although a reasonable jury could view the videos and conclude that handguns
    had been fired, that was the ultimate factual question the jury had to decide.
    Reading's definitive characterization of the videos was not supported by
    anything other than his review of the video and his subjective conclusion that
    three individuals had exchanged gunfire.
    Furthermore, Reading's subjective comment was not a fleeting comment
    that can be deemed harmless error. See Singh, 245 N.J. at 17-18. Reading's
    comment was made as an introduction to the videos of the incident.
    Accordingly, it set the stage for his detailed "play-by-play" narrative of the
    videos.
    The second error was Reading's description of the person who had exited
    the Sundance.    Reading candidly conceded that he could not identify that
    individual from the videos of the incident. Apparently, to get around that
    evidentiary gap, the assistant prosecutor asked Reading to describe the
    individual depicted in a still photograph taken from the video, which was marked
    as State Exhibit 10. Reading responded:
    Sure. An African-American male, wearing a black cap,
    black long-sleeve hooded shirt. There's the light-
    colored, white like emblem on the left chest area, light-
    colored pants and black shoes.
    A-2536-18
    21
    Even giving the State every favorable inference, an objective view of the
    photograph does not allow any reasonable person to make such a detailed
    description. The photograph was taken from the video that recorded events after
    sunset. Accordingly, the lighting on the person depicted in the photograph is
    not good. The photograph depicts a person on a sidewalk, but the figure is all
    dark. It is not clear that the individual is African American. There is what
    appears to be a white spot on the person's chest but calling it an "emblem" is a
    subjective characterization. Furthermore, the color of the individual's pants and
    shoes cannot be seen clearly. Although the pants may be lighter than the upper
    garment, testifying that the pants were "light-colored" is a subjective statement.
    Similarly testifying that the shoes were "black" is also a subjective statement
    given the video's lack of clarity and lighting. The critical flaw with Reading's
    description of the individual in the photograph is that Reading had no knowledge
    or information to support that description beyond what the jury itself could
    observe. Like the jury, he saw only the video footage and photograph; he did
    not witness the person exiting the Sundance.
    The second error was compounded when Reading identified defendant in
    the video from the deli, described almost verbatim what defendant was wearing
    while in front of the deli, and then repeatedly testified that the person he
    A-2536-18
    22
    identified as defendant in front of the deli appeared to be the same person
    depicted in the video of the alleged shooting incident. Reading did just what the
    Supreme Court has held a police officer cannot do in narrating a video: he
    identified defendant as the person committing the crime based on a review of a
    surveillance video. See Singh, 245 N.J. at 15-16.
    The second error was also not fleeting. Reading described what defendant
    was wearing while standing in front of the deli at least three times. Reading
    then repeatedly testified that that individual appeared to be the same person who
    exited the Sundance in the video of the alleged shooting incident.
    We are not holding that Reading could not identify defendant from the
    deli video footage. The individual Reading identified as defendant can be
    clearly seen in the deli video footage and the photographs taken from that
    footage. We are holding, however, that the State improperly elicited testimony
    that directly linked Reading's identification of defendant from the deli videos to
    the person who exited the Sundance in the separate videos and photograph of
    the incident. Unlike the deli videos, the videos of the incident do not depict any
    of the individuals with sufficient clarity to enable someone to describe what
    those individuals looked like or what they were wearing.
    A-2536-18
    23
    Finally, the court erred in allowing Reading to opine that the flashes seen
    in the video of the incident were consistent with flashes from the muzzle of a
    gun. That testimony was clearly expert testimony under N.J.R.E. 702. Our
    Supreme Court recently held that police testimony was expert evidence where
    an officer renders an opinion to the jury based on the officer's training and
    experience, not his or her personal perception of the matter being explained.
    State v. Derry, 
    250 N.J. 611
    , 635-36 (2022). In deciding that case, the Court
    cited State v. Hyman, 
    451 N.J. Super. 429
     (App. Div. 2017), where we
    concluded that a detective's "translation testimony" of slang and code words was
    expert testimony. Id. at 635 (quoting Hyman, 
    451 N.J. Super. at 448
    ). In
    Hyman, the detective was asked repeatedly to render opinions based on "his
    training and experience and knowledge of [the] investigation." Id. at 30 (quoting
    Hyman, 
    451 N.J. Super. at 448
    ).
    Like the detective in Hyman, Reading was asked repeatedly to render
    opinions about the source of the flash on the video based on his training and
    experience, not his "personal perception and observation." Id. at 632 (quoting
    State v. McLean, 
    205 N.J. 438
    , 459 (2011)). Reading, however, was never
    identified as an expert and he did not prepare an expert report before trial. See
    id. at 634 (noting disclosure requirements for expert testimony under Rule
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    24
    3:13(b)(1)(I)). Accordingly, Reading's testimony exceeded anything permitted
    as a lay opinion under N.J.R.E. 701. Id. at 636.
    The State argues that Reading's opinion concerning the muzzle flash was
    admissible because the defense opened the door in cross-examining Reading.
    We disagree with that argument. Moreover, we hold that the trial court abused
    its discretion in allowing the testimony.
    "The 'opening the door' doctrine is 'a rule of expanded relevancy and
    authorizes admitting evidence which otherwise would have been irrelevant or
    inadmissible in order to respond to (1) admissible evidence that generates an
    issue, or (2) inadmissible evidence admitted by the court over objection.'" State
    v. Prall, 
    231 N.J. 567
    , 582 (2018) (quoting State v. James, 
    144 N.J. 538
    , 554
    (1996)). The doctrine "permits 'a party to elicit otherwise inadmissible evidence
    when the opposing party has made unfair prejudicial use of related evidence'"
    and "operates to prevent a defendant from successfully excluding from the
    prosecution's case-in-chief inadmissible evidence and then selectively
    introducing pieces of this evidence for the defendant's own advantage, without
    allowing the prosecution to place the evidence in its proper context." 
    Id.
     at 582-
    83 (quoting James, 
    144 N.J. at 554
    ). "The doctrine is limited, however, by
    A-2536-18
    25
    weighing the probative value against the prejudicial nature of the evidence under
    N.J.R.E. 403." 
    Id. at 583
    .
    In narrating the videos of the incident on his direct examination, Reading
    commented on and pointed out to the jury that there were flashes of light. The
    trial court had previously ruled that Reading could not testify that those flashes
    were flashes from a handgun. On cross-examination, defense counsel asked
    Reading if those flashes could have come from a cell phone, a lighter, or a mirror
    reflecting light. That cross-examination did not open the door to allow Reading
    to then offer an opinion that the flashes were consistent with a flash from the
    muzzle of a gun.
    In addition, the assistant prosecutor did not establish a basis for Reading
    to offer that opinion. Reading testified only that he was generally familiar with
    the flashes of certain weapons from his yearly training, which included firing
    his service weapon at night. Without knowing the type of weapon involved,
    Reading's opinion appears to be a net opinion. See Pomerantz Paper Corp. v.
    New Cmty. Corp., 
    207 N.J. 344
    , 372 (2011) (explaining that "an expert's bare
    opinion that has no support in factual evidence or similar data is a mere net
    opinion which is not admissible and may not be considered").
    A-2536-18
    26
    More critically, whatever probative value that testimony had was
    substantially outweighed by the undue prejudice it likely introduced. See
    N.J.R.E. 403; State v. Gonzalez, 
    249 N.J. 612
    , 635 (2022). The critical issue at
    trial was whether defendant had a gun. Reading's opinion that the flash of light
    seen when the individual who exited the Sundance raised his arm was consistent
    with the flash from the muzzle of a gun was highly prejudicial because it went
    to the ultimate issue and had little evidentiary value.
    D.    The Cumulative Errors.
    Each of the three errors we have identified in Reading's testimony was
    sufficiently harmful to warrant the reversal of his conviction. Cumulatively, the
    three errors were clearly harmful errors.
    A defendant is not entitled to a "perfect trial" but is "entitled to a fair trial."
    State v. Weaver, 
    219 N.J. 131
    , 160 (2014) (citing State v. Wakefield, 
    190 N.J. 397
    , 537 (2007)). "[W]here any one of several errors assigned would not in
    itself be sufficient to warrant a reversal, [but] all of them taken together justify
    the conclusion that [the] defendant was not accorded a fair trial, it becomes the
    duty of [the court] to reverse." Id. at 155 (first alteration in original) (quoting
    State v. Orecchio, 
    16 N.J. 125
    , 134 (1954)).
    A-2536-18
    27
    As we have detailed, the three errors in Reading's narrative testimony
    were each reversible error.       They also built upon one another and, in
    culmination, they deprived defendant of a fair trial.
    E.    Defendant's Other Arguments.
    Having concluded that defendant was deprived of a fair trial because of
    the inadmissible comments during Reading's narration of the videos, we need
    not reach defendant's other arguments. Nevertheless, because we are remanding
    for a new trial, we briefly comment on certain of those arguments and add a
    clarification about nay narration at the new trial.
    At a new trial, the trial court and counsel should be guided by the points
    explained in Watson in determining the proper scope of any narration of the
    videos. In particular, the narration should be considered on a question-by-
    question basis and objections should be made accordingly. Watson, ___ N.J.
    Super. at ___ (slip op. at 85). The trial court can then make appropriate factual
    findings on the record concerning those objections.
    We discern no error in the trial court's decision to admit the identifications
    of defendant based on the video and photographs taken from the deli. We also
    discern no error in the trial court's decision to allow Reading, Bolognini , and
    Manzo to make the identification both out of court and in court. As described
    A-2536-18
    28
    in this opinion, however, that identification cannot be directly linked to the
    individual seen to have exited the Sundance in the videos from the incident.
    In terms of the sentence, the Supreme Court has recently clarified that
    mitigating factor fourteen does not apply retroactively. See State v. Lane, ___
    N.J. ___, ___ (2022) (slip op. at 2). Because we are remanding for a new trial
    on other grounds, however, if defendant is convicted after a new trial, mitigating
    factor fourteen would apply because he would be subject to a new sentence. See
    
    id.
     at ___ n.3 (slip op. at 17, n.3).
    F. Conclusion.
    Because parts of Reading's narrative testimony were inadmissible and
    prejudicial, we reverse defendant's conviction and remand for further
    proceedings. We do not retain jurisdiction.
    Reversed and remanded.
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    29