NOT FOR PUBLICATION WITHOUT THE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-4395-18T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DAMIAN SANCHEZ,
Defendant-Respondent.
Argued December 19, 2019 – Decided January 27, 2020
Before Judges Alvarez and DeAlmeida.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Camden County,
Indictment No. 19-01-0144.
Linda Anne Shashoua, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for appellant (Jill S. Mayer, Acting Camden County
Prosecutor, attorney; Linda Anne Shashoua, of counsel
and on the brief).
Robert C. Wolf argued the cause for respondent.
PER CURIAM
On leave granted, the State appeals a May 3, 2019 Law Division order
suppressing the testimony of defendant Damian Sanchez's parole officer
identifying him in a photograph connecting him to alleged criminal activity. We
reverse.
In the afternoon of September 8, 2017, J.F. returned from visiting her twin
sons in the neonatal intensive care unit to the apartment she shared with J.M.,
her children's father. Eleven-year-old B. and his younger brother went outside
to play. J.M. remained in the front room while J.F. walked towards the
bathroom, holding their eighteen-month-old child. She heard the front door
open, turned, and saw an African-American male dressed in black and wearing
a black mask over his face. The man pulled out a gun and asked J.M. "where
the money was." Before he could answer, the man shot J.M. in the head.
The shooter was accompanied by a stocky Hispanic-looking male
approximately five-foot nine inches tall. The men asked J.F. about the location
of the safe, to which she directed them. J.F. claimed it held $10,000 in cash.
The men took the money and fled in a red or burgundy vehicle, eventually
traced to Danny Smith, defendant's co-defendant. The pending indictment
charges defendant with two counts of first-degree armed robbery, N.J.S.A.
2C:15-1(a)(1); two counts of first-degree conspiracy to commit armed robbery,
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N.J.S.A. 2C:5-2 and 2C:15-1(a)(1); first-degree felony murder, N.J.S.A. 2C:11-
3(a)(3); fourth-degree aggravated assault by pointing, N.J.S.A. 2C:12-1(b)(4);
two counts of third-degree child endangering, N.J.S.A. 2C:24-4(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 unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and
second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).
An Attempt to Locate flyer was circulated by the Camden County
Prosecutor's Office Intelligence Unit to all area law enforcement officers. It
describes the vehicle as having been "possibly used" in a homicide, and lists the
date, time, and place of the incident. It stated that the person depicted in the
front passenger seat was "described as a Hispanic male, stocky build
approximately [five-foot nine inches]. . . ."
Upon seeing the flyer, defendant's parole officer notified the Pennsauken
Police, the investigating department, that the photo depicted defendant, whom
she had supervised for over a year after his release from prison on an aggravated
manslaughter conviction. She reported that he may be involved with the MS13
street gang. Additionally, approximately a week after the date of the murder,
defendant had told his parole officer he was changing phone numbers—she gave
police both.
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J.F.'s eleven-year-old son was interviewed a few days after the incident.
B. told police that he held the door open for Smith, as Smith and defendant
entered the building. As the men passed by, he noticed that Smith's phone read
"are you ready." B. identified Smith from a photo array; nothing in the record
we have been provided on appeal indicates that he was able to identify the
second man in the hallway, nor that J.F. was able to identify him. Smith was
located through the surveillance videos from the area, which captured the images
of the getaway vehicle, his girlfriend's car. Subsequent investigation established
that defendant and Smith had phone contacts that day, and cell phone records
placed defendant in the vicinity of the crime.
The Law Division judge applied Evidence Rule 701 to the issue in dispute,
reasoning that where a witness is not testifying as an expert, but is nonetheless
offering an opinion, the testimony must be rationally based on the witness's
perception, and must assist the fact finder in determining a fact at issue. The
judge concluded that the parole officer's testimony did neither. Since she did
not witness the crime, he did not consider her identification to be "based upon
[her] perception . . . ." He continued, "even if it was based on the perception of
the witness, it would not assist the jury in understanding or determining a fact
in issue. It will not assist the jury . . . because it invades the jury province."
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Relying on State v. Lazo, 209 N.J. 9 (2012), the judge further found that where
there is no change in a defendant's appearance, jurors can decide for themselves,
without identification testimony from law enforcement, whether the person in a
photograph admitted in evidence is the defendant sitting before them. Thus, he
ruled the parole officer's testimony inadmissible. Put another way, because the
parole officer had not witnessed the crime, and the State did not claim that
defendant had altered his appearance, he granted defendant's motion to suppress
the parole officer's testimony.
The judge also analyzed the motion pursuant to Evidence Rule 403,
weighing the prejudicial effect against probative value. He opined that
admission "would be significantly prejudicial, and outweigh to a great degree
the limited probative value." The judge further opined that no curative
instruction would suffice to remedy the prejudicial effect of the jury learning
that defendant was on parole for aggravated manslaughter. Nor did he believe
he could limit defendant's scope of cross-examination of the parole officer,
which would naturally focus on the bias or predisposition of the officer in
making the identification because of the similarity in crimes, as to do so would
deprive defendant of a fair trial. Lastly, the judge said that "the State's concerns
can be satisfied by . . . having the . . . State's witness testify that based upon
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information received, they narrowed their suspect down to [defendant] and
having [defendant] stipulate that the phone number that the State has is his phone
number."
The law in this area is scant. In Lazo, an investigator located the
defendant's arrest photograph, which he believed looked like a composite sketch
of a crime suspect. Id. at 14. He showed Lazo's photograph to the victim in a
properly constituted photo array. Id. at 14-15. During the investigator's
testimony at trial, the State introduced the composite sketch, and the old arrest
photo. The investigator explained how he narrowed the suspects down to Lazo,
selected his photo, and prepared the array. Id. at 15. The investigator told the
jury that he included defendant's picture in the photo array because of "his
similarities to the victim's description." Id. at 19. The defendant objected both
to the introduction of the arrest photo and the testimony. Ibid. The victim
identified the defendant at trial. Id. at 15.
The Court discussed State v. Branch, 182 N.J. 338, 342 (2005), and the
principle clearly expressed in that case that a jury need not know the reason a
defendant's photograph is placed in an array for identification by a witness.
Lazo, 209 N.J. at 21. Analogizing the facts in Lazo to those in Branch, the Court
concluded the detective should not have explained to the jury why defendant's
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photo was shown to the victim as "[t]he evidence was not relevant . . . ." Ibid.
"In essence, the detective told the jury that he believed defendant closely
resembled the culprit—even though the detective had no personal knowledge of
that critical, disputed factual question. By doing so, the officer enhanced the
victim's credibility and intruded on the jury's role." Id. at 22. In other words,
the investigator's testimony constituted a detailed explanation of reasons the jury
could rely upon the victim's identification.
In Lazo, however, the Court distinguished situations in which a police
officer merely, as stand-alone testimony, says that a surveillance photo looks
like a defendant. Id. at 22-23. The Court favorably cited cases where such lay
opinion identification by law enforcement is allowed in the federal system when
no other identification testimony is available. Ibid.
In Lazo, the officer's testimony regarding his opinion that the composite
sketch was similar to the photograph was not relevant to the issue of
identification. Id. at 24; see also id. at 21. It was truly duplicative of conclusions
that a jury could independently reach. Id. at 13, 24. The officer did not need to
justify his selection of the picture he included in an array shown to the victim
because the victim identified Lazo as the perpetrator once shown the array . Id.
at 24. The Court contrasted that testimony with testimony by probation officers
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or parole officers who opine merely that a defendant "matched a surveillance
photo in light of multiple prior contacts between the two individuals." Id. at 22-
23. The permissible testimony only connects a defendant to a surveillance
photo—but the jury must still decide whether all the proofs, including those
related to identification, establish that the State has proven defendant's guilt
beyond a reasonable doubt. See id. at 24.
In United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005), for
example, the court approved of testimony by a federal probation officer
identifying the defendant pictured in a surveillance photograph taken during a
bank robbery. Pursuant to the trial judge's directive at Beck's trial, the probation
officer only stated that he had a professional relationship with the defendant
requiring regular bi-monthly meetings, and that as a result he believed the
defendant was the person depicted in the bank surveillance photograph. Id. at
1013. The testimony was admitted in accord with Federal Rules of Evidence
403 and 701, analogous to our own Rules of Evidence. "The Federal Rules of
Evidence have been the source of many, although not all, of our Rules of
Evidence[,]" including Evidence Rules 403 and 701. State v. Rinker, 446 N.J.
Super. 347, 362 (App. Div. 2016). "We therefore frequently consider[]
instructive federal precedent construing analogous Federal Rules of Evidence."
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Ibid. The court reiterated that a lay witness's testimony is "rationally based
within the meaning of Rule 701 where it is 'based upon personal observation and
recollection of concrete facts.'" Beck, 418 F.3d at 1015 (quoting U.S. v. Allen,
787 F.2d 933, 935 (4th Cir. 1986)). In this case, Beck and the cases following
are highly instructive on how the pertinent evidence rules should be read.
The trial judge suggested the outcome of defendant's motion might have
been different if defendant's appearance changed between the commission of the
offense and trial. But that is not the only circumstance in which such testimony
may be admitted. The real question is whether "the witness knew the defendant
over time and in a variety of circumstances, such that the witness's lay
identification testimony offered to the jury 'a perspective it could not acquire in
its limited exposure' to the defendant . . . ." Ibid. (quoting Allen, 787 F.2d at
936). No single factor is dispositive. Ibid.
The Beck court concluded:
. . . [the parole officer] had met with Beck four times in
a two-month period, for a total of more than seventy
minutes. [The parole officer] had sufficient contacts
with Beck so that [his] perception of the person in the
bank surveillance photo was helpful to a clear
understanding of the determination of a fact in issue,
that is, the identity of the person in the bank
surveillance photo. We hold that the [D]istrict [C]ourt
did not err in determining that [the parole officer's] lay
opinion identification testimony was rationally based
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and helpful to the trier of fact, and the [D]istrict [C]ourt
did not abuse its discretion in admitting [the parole
officer's] testimony.
[Ibid.]
Insofar as the Rule 403 analysis, the State has no eyewitness testimony
available. The only testimony which connects defendant to the photo taken from
the video of the alleged getaway car is that of the parole officer. Once the police
had a name, further investigation resulted in the discovery of the cell phone
information, which corroborated defendant's presence in the area. Thus, the
probative value of the testimony is substantial.
Defendant contends that the testimony cannot be admitted, in part because
a neutral presentation would prejudicially limit cross-examination. In Beck and
similar federal cases, the proposed testimony omitted any mention of the law
enforcement role played by the witness. It was presented as a professional
relationship, requiring regular meetings. Defense counsel here argues this
neutral presentation bars him from exploring any potential bias on the part of
the parole officer who made the identification. That is a strategic decision that
a defendant is entitled to make—whether he would prefer to have the witness's
status disclosed to the jury to show the identification witness was predisposed
to see the somewhat unclear photo of defendant as a person involved in a crime,
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or to present a neutral relationship and forego cross-examination with regard to
bias. In weighing admissibility pursuant to Rule 403, the probative value of this
testimony is so substantial, however, that it outweighs any potential prejudice
that defendant may suffer by losing the opportunity to cross-examine on the area
of how bias may have predisposed the witness to see a similarity where none
existed.
The jury will, regardless of the parole officer's testimony, decide for itself
whether the similarity between defendant and the passenger in the still photo is
so great that when joined with the other available proofs, it would prove
defendant's guilt beyond a reasonable doubt.
Thus, applying Lazo and the federal cases it cites, we conclude that the
testimony was admissible, and reverse and remand. Obviously, should
defendant elect to present to the jury the testimony that the witness was
defendant's parole officer, it is not necessary to reveal the nature of the prior
offense.
Reversed and remanded.
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