State of New Jersey v. Wendell Johnson ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2503-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WENDELL JOHNSON,
a/k/a LAMAR HILL,
Defendant-Appellant.
_______________________
Argued December 18, 2023 – Decided January 12, 2024
Before Judges Mawla and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 18-12-0746.
Stefan Van Jura, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Simon Albert Wiener,
Assistant Deputy Public Defender, of counsel and on
the briefs; Elizabeth Cheryl Jarit, Deputy Public
Defender, on the briefs).
Debra Grace Simms, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Debra Grace Simms, of counsel and
on the brief).
Appellant filed pro se supplemental briefs.
PER CURIAM
Tried by a jury, defendant Wendell Johnson was convicted of aggravated
arson. In this direct appeal, defendant argues for reversal of his conviction and
sentence. We affirm.
I.
In August 2018, a fire occurred at the Kiss of Ink Tattoo Shop in Trenton.
On the day of the fire, at approximately 5:00 a.m., Joseph Matisa, the owner was
alerted of the fire and immediately drove to the shop. Matisa found the fire
department on the scene and the front of the building completely burnt. The rear
area was damaged by smoke and water damage. Matisa was unable to connect
to his own security cameras, so he asked a nearby business if he could review
their security footage.
The footage showed the same man appearing in the adjacent alleyway and
at the front door of the parlor multiple times throughout the early morning hours.
The man was wearing a red shirt, long denim shorts, a black cloth cap, and a
lanyard around his neck. The footage showed the individual gathering items
from trash piles, placing them at the front of the building, carrying a gasoline
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can, bending over the gathered pile with the gas can, and then running away
shortly before smoke emerged and the fire began.
The Trenton Police Department issued a press release along with still
frames from the video footage. Michael Traendly, defendant's parole officer,
and Trenton Police Officer Corey McNair, defendant's cousin, both responded
to the press release, identifying defendant as the person in the photograph.
Additionally, defendant called Officer McNair and told him that the police were
looking for him because of the photograph.
On December 13, 2018, defendant appeared before the trial court on this
complaint and three other pending indictments. After referencing an October
proceeding in which defendant had asked to be represented pro se, the trial court
and defendant discussed proceeding in that regard.
The court began by ensuring defendant knew the penalties for the most
serious charge he was facing, aggravated arson. Defendant correctly responded
that if he lost at trial, he would be facing up to ten years in prison with up to five
years without parole. Defendant also stated that depending on the damage
caused by the fire, he could also face fines and penalties. Regarding charges on
which he had already been indicted, defendant correctly stated that for his
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violations of third-degree failure to register under Megan's Law1, he was facing
five years in prison and up to three years without parole. The court explained,
for the separate indicted fourth-degree cases, defendant would be facing an
additional eighteen months in prison.
The court then asked defendant about his education, and defendant replied
that he had a GED and "had been practicing law for some time now." When the
court inquired how defendant practiced law without a license, he explained he
had represented himself many times. He described that he "had two of [his]
motions granted here in Mercer County Court" and he "went through the appeal
process and got the [No Early Release Act ("NERA")]2 eliminated" on prior
armed robbery and aggravated assault charges. When the judge asked about
NERA, defendant explained the eighty-five percent sentence was eliminated by
this court and "remanded back for resentencing to substitute it by the Graves
Act."3
1
N.J.S.A. 2C:7-19.
2
N.J.S.A. 2C:43-7.2.
3
N.J.S.A. 2C:43-6 (imposing mandatory minimum sentencing for certain
offenses involving firearms).
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The court queried defendant's knowledge of the elements of aggravated
arson, with defendant stating, "All right. I allegedly purposely set a fire onto a
structure of private property." The court explained defendant was entitled to
statutory defenses. Defendant replied that he was not indicted yet, but after the
State submitted the matter to the grand jury, he would read the defenses and
understand them. After defendant identified the lesser-included charge of third-
degree arson, the court clarified there were other defenses he could raise.
Defendant then correctly explained the reasonable doubt standard to the trial
court.
When the court started to inform defendant on being bound by the Rules
of Evidence, defendant interrupted and explained that he also had to follow the
Code of Criminal Justice, and the Rules of Court, which he "read all the time."
The trial court made clear that it was specifically concerned about the evidence
rules because defendant would be bound by evidence rulings even if he did not
understand them. The court went on to try and simplify what sections of the
Court Rules applied to criminal proceedings, and defendant corrected the court,
stating there are eight sections to the rules, but in criminal cases only "[o]ne
through three and seven is municipal. Some municipal can be applied."
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The court explained that by representing himself, defendant may not be
able to get certain evidence admitted and the court could not help him with
evidence or with presenting questions in the proper format. The court reiterated
it was still concerned defendant may be waiving some defenses he was not aware
of. Defendant then asked the court for standby counsel to help him with
subpoenas and the filing of motions, which defendant acknowledged would
depend on what happened at grand jury proceedings. The trial court again
explained to defendant the pitfalls of representing himself, including that it can
be difficult to choose whether or not to testify and the challenges that might
present. Defendant was also informed that if convicted, he would not be able to
raise any ineffective assistance of counsel claims on appeal or post-conviction
relief.
Throughout the proceeding, the trial court suggested numerous times that
defendant have counsel and warned of the drawbacks he would face in
representing himself because he was not trained in the law. The court explained
an attorney was trained in the law, but defendant had only "jailhouse
knowledge[,]" and would be better represented by an attorney. Although he was
told multiple times it was not a good idea to represent himself, defendant
remained steadfast in his quest. The court then granted defendant's motion.
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Afterwards, the State pointed out defendant was eligible for an extended
term as a persistent offender.4 The court asked defendant if he was concerned
about being sentenced to those enhanced penalties, to which defendant replied,
"No, I've been in trial three times already." The court concluded by telling
defendant, "I'm not satisfied that you're making the correct decision, but that's
your decision to make[,]" and appointed standby counsel. On December 21,
2018, a grand jury indicted defendant on one count of second-degree aggravated
arson, N.J.S.A. 2C:17-1(a)(2).
Defendant engaged in extensive pre-trial motion practice. He challenged
the legitimacy of the complaint warrant and corresponding indictment, including
allegations the prosecutor presented evidence of defendant's prior convictions
to the grand jury. He moved for a new detention hearing, arguing a material
change in his circumstances. He tried to dismiss the indictment for the
prosecution's alleged failure to instruct the grand jury on defenses and
justifications. He moved for dismissal for prosecutorial misconduct through
selective prosecution.
4
N.J.S.A. 2C:44-3(a) (permitting imposition of an extended sentence where
defendant has been previously convicted on at least two other separate crimes
within the last ten years).
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At one pre-trial hearing, defendant asked to speak with the State's attorney
without his standby counsel. The court advised defendant, "That's fine and what
I'm going to caution you, again, which I cautioned you at the time of the hearing
where I said that you could represent yourself, is that anything you say may
impact on your ability to, let's say, cross examine yourself." Defendant
responded, "Absolutely. I could be incriminating in the pitfalls and all and the
dangers and all that good stuff. I'm aware of that."
The trial began in March 2020. The State's first witness was Matisa. He
testified when he reviewed the security footage, he saw the same person multiple
times. The man was wearing a red shirt, long denim shorts, a black cloth cap,
and a lanyard around his neck. Matisa did not recognize the individual but
observed him "stop[ping] in front of [Matisa's] business multiple times,
bring[ing] objects to and from and all that . . . ." To Matisa, "[i]t looked like the
person was taking–right away in the video you watch cardboard and–or wood
directly from where the trash was in the sidewalk and in front of the business
and then there's footage of the person leaving with a gas can as well." During
Matisa's testimony, still photographs from the surveillance footage were entered
into evidence without objection.
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Detective Gregory Hollo also testified for the State about the surveillance
footage that was retrieved. When Detective Hollo was asked to describe a
portion of the footage, the following occurred:
[DETECTIVE HOLLO]: Basically, the individual,
Wendell Johnson, again walking from the area of
Franklin Street towards the –
[STANDBY COUNSEL]: Excuse me, I— Judge, I
didn't quite hear what the witness was saying.
[DETECTIVE HOLLO]: The individual is—known
as—we knew as Wendell Johnson walking from
Franklin Street towards the tattoo shop.
[STATE]: Okay.
[STANDBY COUNSEL]: I'm going to object to the
reference of Wendell Johnson.
THE COURT: Sustained.
[STANDBY COUNSEL]: I didn't hear him the first
time. It might have been said two or three different
times (indiscernible) reference to the individual
standing—sitting to my right as well (indiscernible)[.]
THE COURT: Sustained.
Detective Hollo then testified the video depicted an individual walking
along the alleyway, carrying an item that looks like a "[r]ed plastic gas can with
a black spigot—a plastic spigot." Detective Hollo stated based on the subject's
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clothing, size, shape, and relative features, it seemed to be the same person that
passed in front of that same camera angle two times earlier in the morning.
Detective McNair also testified for the State and explained defendant was
his cousin and he had known defendant for his entire life. He knew him by two
names: Lamar Hill and Wendell Johnson. He testified that in a photograph
taken during the summer of 2018, defendant was wearing clothing like that seen
in the still frame from the security footage.
Detective McNair further testified to receiving a phone call from
defendant, who stated he knew the police were looking for him based on the
circulated photographs. Defendant asked Detective McNair to accompany him
and his attorney to the police station so defendant could turn himself in. After
the call ended, Detective McNair immediately contacted his supervisor and
reported the phone call. On cross-examination, defendant asked Detective
McNair about their family relationships, establishing defendant's mother,
Detective McNair's aunt, also used the surnames Hill and McNair.
Parole Officer Traendly also testified for the State. Officer Traendly did
not reference his job as a parole officer, but testified he had known defendant
for approximately a year, had interacted with him "ten times[,]" which would
last "[a]nywhere from a few minutes to upwards [of] an hour or two." Traendly
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testified he responded to the press release after identifying defendant, noting the
clothing, hat, and lanyard in the photograph were the same defendant wore
during Traendly's most recent interaction with him.
Detective Marc Masseroni from the Mercer County Prosecutor's Office
testified for the State. The detective testified to reviewing the security footage,
which was already in evidence. Detective Masseroni testified the individual on
the surveillance video was "walking up with, what appears to be, some kind of
container in his right hand, walking across the street towards [the parlor]."
Detective Masseroni testified the footage showed the individual leaning over the
front door of the parlor and its stoop and later standing towards the iron gate to
the alleyway. The following testimony then ensued:
[STATE]: Can you describe what you just observed
that individual doing?
[DETECTIVE MASSERONI]: That individual
extended his arm, turned his arm upside down, with his
thumb facing down, almost indicating that he was either
pouring something out, or turning his hand upside
down, with the container that was in his hand.
As the video continued, Detective Masseroni testified, it "[l]ooked like he
attempted to ignite something towards the base of the front door, as well as,
possibly, towards the middle, a couple times, pulled away from it quickly, and
started running . . . ." Defense counsel objected to this testimony as speculative,
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and at sidebar argued it was the jury's place to determine what the individu al in
the video was doing. The court instructed, "I think you just need to — just have
him keep his responses strictly to what action he observes." Defense counsel
did not request, and the court did not give, any curative instruction.
Defendant re-called Detective Hollo and presented him with a report
showing Wendell Johnson's and Lamar Hill's phone numbers were different.
After the defense rested, the court reviewed the final jury charge and the jury
sheet with the parties. Defendant stated he had no objection to either.
After summations, the court charged the jury. At sidebar, the court asked
if there were any objections to the jury charge, and there were none. The court
also offered for counsel to make sure all the evidence was in order.
During deliberations, the jury requested playback of the video, including
pausing on specific frames and enlarging portions showing the individual
walking and running. The jury returned a unanimous guilty verdict on the
charge of aggravated arson.
After the jury was dismissed, Juror Number Two contacted the court's
chambers. With defendant and State's attorney's present, and standby counsel
on the telephone, the court called the juror in for discussion on the record. The
following exchange ensued:
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THE COURT: —was there any outside influence that
would have—that created . . . —your phone call to my
chambers after you agreed with the verdict, as it was
announced by the foreperson?
JUROR NO. 2: No. I actually, all along going in, they
kind of swayed me to, in a way, in there. I was the only
one who said not guilty, and it was kind of a swayed
decision and then I wanted to come out and feel—
THE COURT: But did —nobody twisted your arm or
forced you—
JUROR NO. 2: No.
THE COURT: —to do anything—
JUROR NO. 2: No, no, no.
THE COURT: —that you didn't want to do?
JUROR NO. 2: No, no.
THE COURT: And there was no outside influence—
JUROR NO. 2: No, no.
THE COURT: —from outside of the courtroom
JUROR NO. 2: No.
Post-trial, defendant continued motion practice, including that the
indictment should be dismissed for technical violations, that a new trial was
warranted because of various procedural and substantive violations,
prosecutorial misconduct, and that standby counsel was able to sit too close to
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him in violation of covid protocols, which delayed his sentencing date multiple
times. The court denied defendant's motions, stating, "None of these allegations
separate or together diminish the evidence . . . upon which [d]efendant . . . was
convicted." Defendant had not "offered sufficient newly discovered evidence
upon which the court could grant a new trial[,]" and the motion was untimely
under Rule 3:20-2. The trial court wrote it "carefully considered [defendant's]
nine points presented both in his moving papers and reiterated during oral
argument[,]" but found they were "not sufficient to overcome the evidence and
the rational inferences drawn from the evidence which were presented to the
grand jury."
Prior to sentencing, defendant was ordered to undergo a psychological
examination for the purposes of mitigation for sentencing, which defendant
refused. At defendant's March 4, 2022 sentencing hearing, his remaining post -
trial motions were dismissed. The State argued for an extended sentence as a
persistent offender. Defendant argued his prior convictions should not be
considered because they either had procedural defects, were a result of a guilty
plea, or were pending appeal. Defendant also argued his mental illness should
protect him from receiving an extended term. The State responded defendant's
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illness appeared to be self-reported and only raised selectively. The State
emphasized defendant was found competent to represent himself at trial.
Although the court found defendant eligible for an extended term as a
persistent offender, it declined to sentence him in that manner. The judge did
consider defendant's proffered mental health records, stating, "defendant may
have some psychological disorder or ailment that might affect his ability to make
decisions." After careful review of the presentencing report, aggravating and
mitigating factors, and the weight accorded to each, defendant was sentenced to
ten years, subject to NERA, and a subsequent three years of parole supervision,
plus fines and penalties. At sentencing, defendant's three other indictments were
dismissed by the State.
On appeal, defendant raises the following issues:5
POINT I: THE TRIAL COURT ERRED BY
CONCLUDING [DEFENDANT] KNOWINGLY
5
After defense counsel filed their appellate brief, defendant asked to represent
himself at oral argument while still relying on the attorney's brief, maintaining
that his December 2018 waiver of counsel before the trial court should apply to
his appellate proceedings. On November 23, 2022, we denied defendant's
motions to waive representation and proceed pro se at oral argument. On
January 5, 2023, defense counsel moved to be relieved. On January 9, 2023, we
ordered a limited remand for a hearing pursuant to State v. Coon, 314 N.J. Super.
426 (App. Div. 1998), on the validity of defendant's waiver of right to counsel
on appeal. On February 16, 2023, at the Coon hearing, defendant withdrew his
motion to waive appellate counsel. We then vacated the order for limited
remand, and the matter proceeded.
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WAIVED HIS RIGHT TO COUNSEL BECAUSE IT
QUIZZED HIM ABOUT HIS LEGAL KNOWLEDGE
AND DID NOT EXPLICITLY TELL HIM THE
NECESSARY INFORMATION.
A. The Court Quizzed [Defendant] about
His Knowledge of Criminal Procedure
Rather than Tell Him about the Required
Topics
B. The Court Did Not Tell [Defendant]
about the Nature of the Charge: Its
Elements and Lesser Included Offenses.
C. The Court Did Not Tell [Defendant]
about Statutory Defenses He Could Raise.
POINT II: DETECTIVE MASSERONI'S
NARRATION OF SECURITY FOOTAGE AND
DETECTIVE HOLLO'S IDENTIFICATION OF THE
PERSON IT DEPICTED IMPERMISSIBLY
INFRINGED ON THE JURY'S FUNCTION.
In his pro se brief, defendant raises the following additional points:
POINT I:
A: THE TRIAL COURT PROSECUTOR ABUSED
ITS DISCRETION
B: THE PROSECUTOR COMMITTED
MISCONDUCT AND ABUSED ITS PROCESS
C: THE TRIAL COURT PROSECUTOR ABUSED
ITS DISCRETION
D: THE TRIAL COURT PROSECUTOR ABUSED
ITS DISCRETION
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POINT II
A-S: THE TRIAL COURT ABUSED ITS
DISCRETION.
T-Z6: THE TRIAL COURT ERRORED AT
SENTENCE.
II.
We begin with defendant's contention that the trial court erred by not
ensuring his waiver of his right to counsel satisfied the mandates of State v.
Outland, 245 N.J. 494, 506 (2021). Defendant maintains the colloquy was "like
a quiz or a bar examination," rather than a provision of necessary information.
When defendant was not able to answer his questions, the court just "accepted
his ignorance."
Criminal defendants have a constitutional right to self-representation
when the decision is made knowingly and intelligently. Id. at 505 (citing Faretta
v. California, 422 U.S. 806, 835 (1975)). Relinquishing one's right to counsel
requires the court to be satisfied the defendant understands the implications of
the decision. State v. Crisafi, 128 N.J. 499, 509 (1992) (citing Faretta, 422 U.S.
at 835). A defendant's right to self-representation "is about respecting
[defendants'] capacity to make choices for [themselves], whether to [their]
benefit or to [their] detriment." State v. Reddish, 181 N.J. 553, 585 (2004); see
also State v. Rose, 458 N.J. Super. 610, 627 (App. Div. 2019). In State v.
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DuBois, 189 N.J. 454, 468-69 (2007), the Court synthesized the requirements of
Crisafi and Reddish and provided sixteen topics about which the court must
inform a defendant wishing to proceed pro se. When a colloquy addresses the
topics in large part but not completely, such a failure to inform does not
necessarily render the waiver fatal. DuBois, 189 N.J. at 475.
A trial court's determination that a defendant knowingly and voluntarily
waived his right to representation is reviewed for abuse of discretion. Ibid. "A
court abuses its discretion when its 'decision is made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" State v. Chavies, 247 N.J. 245, 257 (2021) (quoting State
v. R.Y., 242 N.J. 48, 65 (2020) (internal citations omitted)).
Specifically, defendant maintains the trial court failed to provide him with
the elements of an aggravated arson charge and the lesser-included offenses
besides third-degree arson. For example, he claims he was not informed the
State was required to prove that the fire was started with the purpose of
destroying the building and of the possible lesser-included charges such as
criminal mischief or disorderly conduct. Finally, he argues the court did not
inform defendant of the statutory defenses available to him. The State maintains
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the record reflects defendant's understanding of the ramifications of proceeding
pro se, and he made a knowing and intelligent waiver.
In its colloquy with defendant, the trial court addressed the nature of the
charges, the possible penalties, the difficulties posed by procedural and
evidentiary rules, possible complications with his own testimony, and that self-
representation did not lead to favorable outcomes. While it is true that the court
found defendant did not understand his statutory defenses, defendant testified
his intended trial strategy of misidentification would not require them.
Moreover, defendant appropriately acknowledged the case had not been
presented to a grand jury yet, so he did not know, but he would read up and
understand the available defenses and lesser-included crimes. Defendant also
testified as to his extensive prior history with the criminal justice system,
including earlier successful self-representation. Like the defendant in Outland,
defendant "did not waver in his desire to represent himself." 245 N.J. at 509.
Like the "court-wise criminal who fully appreciated the risks of proceeding
without counsel" in Crisafi, defendant proceeded "with his eyes open." 128 N.J.
at 513 (citing Faretta, 422 U.S. at 835).
Further, review of the record shows a defendant who was dogged in his
determination to self-represent, as evidenced by his conduct during pre-trial
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motions practice, at trial, and post-trial. Defendant was made aware of the
consequences of his self-representation at multiple points and still refused to
rely on his standby counsel in any meaningful way, let alone make any
indication that he was dissatisfied with his waiver. Since the focus of the
colloquy is to determine defendant's actual understanding of the implications of
waiver, which defendant repeatedly displayed both at the hearing and throughout
these proceedings, the record reflects defendant's steadfast desire to self-
represent would not have been impacted by any other colloquy.
III.
We next address defendant's argument that it was improper for Detective
Masseroni to narrate the video and for Detective Hollo to testify the person on
the video was later identified as defendant. Defendant distinguishes between
the admissibility of an objective description of the action on the screen and a
subjective commentary on the significance of that action. Defendant argues
narration testimony must satisfy N.J.R.E. 701(b) and "assist in understanding
the witness' testimony or determining a fact in issue," or otherwise it
impermissibly invades the province of the jury. He also emphasizes that a police
officer may not opine as to a defendant's guilt. He stresses neither officer was
present at the scene during the arson and thus their review of the footage was no
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different than the jury's, and their subjective opinions of the material facts and
events depicted in the video violated N.J.R.E. 701.
Decisions on the admission or exclusion of evidence are subject to review
for abuse of discretion. State v. Rochat, 470 N.J. Super. 392, 453 (App. Div.
2022). This includes an evidentiary ruling on the admissibility and scope of
narration testimony. State v. Watson, 254 N.J. 558, 602 (2023) (citing State v.
Singh, 245 N.J. 1, 20 (2021)).
Lay witnesses may testify "in the form of opinions or inferences if [the
testimony]: (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. In State v. McLean, 205 N.J. 438, 456 (2011),6 the Court explained that to
be admissible under N.J.R.E. 701, lay opinion testimony by police officers must
6
Starting with McLean and ending with Watson, our Court has developed
further principles in regard to "narration testimony." See also State v. Allen,
254 N.J. 530, 543-49 (2023) (involving testimony that the defendant's photo had
been included in an identification array because the testifying detective thought
defendant closely resembled the culprit); State v. Higgs, 253 N.J. 333, 363-67
(2023) (involving police testimony that dashcam video depicted a gun-shaped
bulge in the defendant's waistband); Singh, 245 N.J. at 12-20 (involving police
testimony that sneakers observed in video were similar to those the officer
observed the defendant wearing when arrested); State v. Sanchez, 247 N.J. 450,
64-77 (2021) (involving parole officer testimony that a person in a surveillance
photo was the defendant, a former parolee under the testifying officer's
supervision); and State v. Lazo, 209 N.J. 9, 17-28 (involving police testimony
that a prior arrest photo of a defendant closely resembled a composite sketch).
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be based (1) on the officers' firsthand perceptions, and (2) must be helpful to the
jury while not unduly prejudicial to a defendant. Additionally, lay opinion
testimony must not constitute "an expression of a belief in defendant's guilt" or
"an opinion on matters that were not beyond the understanding of the jury." Id.
at 463.
The Watson Court clarified that law enforcement officers who were not
present when the crime occurred generally were not permitted to offer the jury
their subjective opinions about the contents of surveillance videos that recorded
the criminal acts. 254 N.J. at 608. Synthesizing N.J.R.E. 701, 602, and 403, the
Watson Court provided a framework for such determinations. Id. at 600-02.
Narration testimony must not "offer opinions on the content of a recording or
comment on reasonably disputed facts." Id. at 602. While the perception prong
of N.J.R.E. 701 is satisfied when the witness' knowledge was acquired through
reviewing video footage, whether the helpfulness prong is satisfied "turns on the
facts of each case." Ibid. The Court also cautioned, "a witness cannot testify
that a video shows a certain act when the opposing party reasonably contends
that it does not." Id. at 603. The Court included "a reasonableness requirement
to prevent a party from disputing all facts in a recording in a manner that does
not reflect good faith." Ibid.
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Defendant argues Detective Masseroni's testimony that the person in the
video was "pouring something out, or turning his hand upside down, with the
container that was in his hand," and later "attempting to ignite something,"
impermissibly infringed on the jury's role as factfinder. We are unpersuaded.
Detective Masseroni's testimony was largely a factual description of the
events on the screen. Further, defendant's theory of the case was one of mistaken
identity. It was not reasonably disputed that the man in the video carried a gas
can, gathered trash from the alleyway, bent over the pile, and smoke and fire
appeared shortly after he ran away. These were not facts defendant could
"reasonably contend" were disputed. Therefore, even to the extent that
Detective Masseroni's narration of the man's actions constituted a lay opinion
and not a recitation of his factual observations, under the facts of this case, his
testimony did not run afoul of Watson. Further, defendant elicited very similar
testimony from Matisa during cross-examination.
Defendant also argues Detective Hollo impermissibly identified the
individual on the screen as "Wendell Johnson," and "the individual we learned
to be Wendell Johnson." Detective Hollo's identification testimony was more
problematic than Masseroni's fact testimony because it amounted to an
impermissible "expression of a belief in defendant's guilt . . . ." McLean, 205
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N.J. at 463. However, we are unpersuaded that the admission of the officers' lay
opinion testimony requires a new trial. Where such an impermissible
identification is made during narration testimony, such an error may be harmless
"given the fleeting nature of the comment" and in context of other, proper
testimony. Singh, 245 N.J. at 17. Given the sustained objection and given the
quality of the video footage and still shots, the identifications provided by
Detective Matisa, Detective McNair, Parole Officer Traendley, and defendant's
phone call to Detective McNair, Detective Hollo's impermissible identification
testimony was not clearly capable of leading to an unjust result.
The compelling nature of this other incriminating evidence rendered the
improvident admission of the officers' lay opinions harmless. Allen, 254 N.J. at
550 (holding that the "compelling" nature of the State's evidence overcame the
trial court's error in admitting an officer's lay opinion testimony about what was
depicted on a surveillance video). Further, neither defendant nor his standby
counsel requested the curative instruction defendant now maintains was
required. Our Supreme Court has cautioned that a new trial granted for an error
"easily . . . cured on request[] would reward the litigant who suffers an error for
tactical advantage . . . ." Singh, 245 N.J. at 13 (alteration in original) (citing
State v. Santamaria, 236 N.J. 390, 404-05 (2019)).
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IV.
We have duly considered all other points and sub-points raised by
defendant and conclude they lack sufficient merit to warrant discussion in this
opinion as the record either lacks factual support for, or blatantly contradicts,
defendant's assertions. R. 2:11-3(e)(2).
Affirmed.
A-2503-21
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