(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 30, 1993 -- Decided February 28, 1994
GARIBALDI, J., writing for a majority of the Court.
Joseph Lee Wilson, Jr., was charged with attempted robbery and murder at a meat market in Neptune.
Wilson conceded that he entered the store to commit a robbery, pointed a gun at the victim, and shot him. He
contended, however, that the shot was unintentional.
To support its version of the facts, the State presented a videotape of the crime scene that was created
by the Prosecutor's Office three days after the event. The video was not a reenactment of the crime; rather, it
depicted the physical location of the witnesses and the murder victim at the time of the crime. Wilson objected
to the introduction of the videotape, but the trial court determined that it was admissible.
The jury found Wilson guilty of capital murder, felony murder, armed robbery, conspiracy, aggravated
assault, and weapons possession charges. After the penalty phase, the jury determined that the death penalty
was not appropriate. Wilson received an aggregate sentence of life plus 6½ years, with a 33¼-year parole
ineligibility term.
Wilson appealed his conviction and sentence. The Appellate Division affirmed. The Supreme Court
granted Wilson's petition for certification, limited to the propriety of the use of a videotaped reconstruction of
the robbery.
HELD: Although introduced through hearsay evidence and not properly authenticated, use of the videotaped
presentation of the crime scene by the State was harmless error.
1. Because the video simply depicted the crime scene, including the relative positions of the witnesses, it was
legally relevant evidence. (pp. 10-12)
2. The State failed to authenticate the videotape properly. Witnesses who could have authenticated it were not
called on to do so. (pp. 12-18)
3. Although the videotape as presented by the State was inadmissible hearsay, Wilson had ample opportunity
to confront the witnesses against him by questioning them on the videotape's representations. His failure to do
so casts substantial doubt on a challenge to the accuracy of the tape. (pp. 19-20)
4. The probative value of the videotape was not outweighed by the risk of undue prejudice to Wilson. In
particular, the videotape did not address the key question of whether Wilson shot the victim intentionally. (pp.
20-22)
5. The erroneous introduction of the videotape was clearly incapable of affecting the jury's decision. As such,
it was harmless error. (pp. 22-23)
The judgment of the Appellate Division is AFFIRMED.
CLIFFORD, J., dissenting, is of the view that the Court's grant of certification should have been vacated because
the case did not actually present the question raised in defendant's petition -- whether, in the context of a capital
prosecution, a videotaped reconstruction of a robbery and shooting can be admissible.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, and STEIN join in
JUSTICE GARIBALDI's opinion. JUSTICE CLIFFORD has filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
51 September Term l993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH LEE WILSON, JR.,
Defendant-Appellant.
_________________________
Argued November 30, 1993 -- Decided February 28, 1994
On certification to the Superior Court,
Appellate Division.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant
(Zulima V. Farber, Public Defender, attorney;
Mr. Smith and Mark E. Tabakman, Designated
Counsel, on the briefs).
Marsetta Lee, Deputy Attorney General, argued
the cause for respondent (Fred DeVesa, Acting
Attorney General of New Jersey, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
The narrow issue presented in this appeal is the admissibility
of a videotape presentation of the scene of a crime. Filmed three
days after the crime, the videotape depicts the physical location
of the witnesses and the murder victim at the time of the crime.
The participants in the video do not move or speak. The video,
rather than constituting a reenactment of the events, simply gives
a spacial overview of the premises and the physical location of the
witnesses.
This case involves an attempted robbery and a murder at a meat market in Neptune. On February 26, 1988, at approximately 4:00 p.m., the market's two stock clerks, Claude Collins and Moses Williams, were loading meat into a truck outside the market when they were informed by defendant, Joseph Wilson, and his accomplice, Leonard M. Chisum, not to go back into the store because "something was about to happen." Defendant then entered the Fabulous Meat Center with a ski mask pulled down over his face, leaving only his eyes and mouth exposed. The cashier on duty, Paula Crawford, noticed Wilson dancing and skipping around the store wearing a ski mask, but she was not alarmed because she mistook Wilson for a child due to his slight build. She testified that many customers, especially children, wore ski masks into the store in the cold weather.
Wilson then silently stepped out from behind a toy display near Crawford's register, pointing a handgun. He walked over to a second register where the two owners of the store, Brian Kennedy and Peter Szoke, were bagging personal merchandise, and he pointed the gun at Kennedy's face. Assuming the gun to be a toy like the toy guns he sold in the store, Kennedy leaned back, pushed the gun away from his face, and told Wilson to "get that thing out of here."
Wilson then walked over to Szoke and placed the gun against
Szoke's head. Szoke, apparently also assuming the gun to be a toy,
put his arm up to push the gun away and told Wilson to "get out of
here." Wilson then fired one shot, which struck Szoke in the left
temple. Wilson fled the scene, and Szoke died a few days later.
Defendant was arrested and entered a plea of not guilty. The
State filed a Notice of Aggravating Factors. A jury convicted
Wilson of capital murder, felony murder, armed robbery, conspiracy,
aggravated assault, possession of a handgun for an unlawful
purpose, and possession of a handgun without a permit. At a
penalty trial the jury determined that the death penalty was not
the appropriate punishment for defendant. The court sentenced him
to life imprisonment with a mandatory minimum parole ineligibility
of thirty years on the murder count, as well as consecutive
sentences on two other counts totalling six-and-one-half years with
a three-and-one-quarter-year parole ineligibility.
The Appellate Division affirmed defendant's convictions but
remanded for resentencing. After a resentencing hearing, the
Appellate Division affirmed the trial court's reimposition of the
same sentence.
We granted Wilson's petition for certification, ___ N.J. ___
(1993), "limited to the issue regarding the videotaped
reconstruction of the robbery and shooting."
The prosecution introduced the videotape at trial over
defendant's objection. The parties do not dispute that Wilson
entered the store to commit a robbery, pointed the gun at the
victim, and shot Szoke. Defendant claims, however, that the
shooting was unintentional. The key issue, therefore, at trial was
whether Wilson had committed the killing purposefully and
knowingly, or whether he had accidentally shot Szoke in the head.
Defendant told the police that "the man in the store grabbed his
arm and he shot the man." Defendant admitted that his statement to
the police was not truthful insofar as it stated that the victim
had pushed him against the wall. He insisted, however, that Szoke
had "yanked him back and forth."
Both Crawford and Kennedy testified that defendant had put the
gun to the back of Szoke's head and that Szoke had brushed
defendant's arm away, causing defendant to take a step back.
Defendant then stepped forward, put the gun back up to Szoke's
head, and fired. He then fled the store.
In support of that version of the shooting, the State
presented the testimony of the medical examiner who performed the
autopsy on Szoke and the testimony of a weapons expert. The
examiner concluded from the soot markings around the wound that the
shot that had killed Szoke had been fired about six inches away
from his head. The weapons expert testified that because of the
age and condition of the murder weapon, a deliberate action to pull
the trigger had been required to fire the gun.
The Videotape
The first scene in the videotape is the view from outside the
entrance to the Fabulous Meat Center. The video then cuts to a
second scene of the view from inside the store entrance. The third
scene, the relevant scene, is again the view on approaching and
entering the store through the front door. The video shows the
interior of the store, including the merchandise on the shelves,
and then focuses on the checkout area consisting of two sets of
cash registers and counters.
The camera then enters the store and turns toward the checkout
area. Two women and one man are seen standing in the locations
where the victim, Crawford and Kennedy were located at the time of
the crime. Paula Crawford stands in her position as cashier at the
first cash register. An unidentified woman stands behind and to
the right of Crawford in the position where Kennedy, the co-owner,
was situated. Both Crawford and the unidentified woman stare
straight toward the camera with blank expressions.
Detective Green, in plainclothes, stands next to the
unidentified woman and is pivoted at an angle in front of the
conveyor belt of the second cash register. His position is that of
the victim, Szoke. The videotape then shows the location of the
cash registers and their proximity to the front door. It also
shows Green's position relative to the front door and to both cash
registers.
The camera then travels from the front door to the toy
display, and then past Crawford at the first register and past the
unidentified woman standing in Kennedy's position. The videotape
then passes Detective Green standing in Szoke's position. Neither
the unidentified woman nor Detective Green moves at all, but
Crawford turns slightly toward the camera while it traces Wilson's
route towards the cash registers from behind the toy display.
The video is filmed as if Wilson himself were carrying the
videotape camera as he traveled through the store on the day of the
crime, except that no actor portrays Wilson and no one reenacts any
of the movements of the witnesses or the interaction between the
witnesses and Wilson. No gun is ever shown, nor is any indication
of a shooting. The entire third scene lasts less than a minute.
The camera finally shows the route taken by Wilson to flee the
scene and the subsequent route taken by the police to apprehend
him.
Introduction of the Videotape at Trial
Investigator Glen Meyers of the Monmouth County Prosecutor's
Forensic and Technical Services Unit testified that he returned to
the store three days after the crime and videotaped the crime scene
based on information he obtained from Detective Green of the
Neptune Township Police Department and other investigators. He
also testified that he had made the videotape under the direction
of Mrs. Crawford. Meyers then gave a detailed account of the
actual filming process.
Meyers described the videotape to the jury as follows:
[B]asically the videotape depicts the area
immediately outside the Fabulous Meat Store
[sic] from two different perspectives, near the
front of the store looking out and away from
the front door looking back toward the front
of the store and then a re-enactment basically
of the occurrences leading up to the shooting
of Mr. Szoke on the evening of the 26th.
At that point, defense counsel objected and requested a
sidebar discussion. Defense counsel argued that the videotape was
inadmissible hearsay and that the admission of the videotape would
unduly prejudice defendant.
In response to a defense objection, the court viewed the
videotape outside the presence of the jury, and ruled as follows:
The objection is going to be overruled. The
fact of the matter is that the scene that is
depicted in the videotape is as was testified
to by the two State's witnesses already. The
last woman, Mrs. Crawford very clearly demon-
strated where the parties were standing at the
time.
The videotape just depicts where those people
were standing based upon what she had said
. . . So there is nothing. The videotape is
nothing but a re-creation in a very loose
sense of the word because all it does is
follow a camera around. It doesn't follow
anybody, doesn't show anybody doing anything
except just standing there.
The videotape is just depicting the positions
of the people who are in the store as
testified already to by Mrs. Crawford. It
also shows the direction of the travel
outside of the store of the defendant as was
testified to by Collins already.
There is nothing in that videotape that shows
a gun or anything are [sic] anybody moving
at [sic]. They are all just standing still.
I'm going to allow the videotape in evidence
in its complete form as indicated. The
objection is going to be overruled. Let's
bring the jury in please.
The jury then viewed the videotape.
After the Introduction of the Videotape
After the jury saw the videotape, both Brian Kennedy, the co-owner of the store, and Paula Crawford testified. Defendant
testified in his own behalf. The videotape had not been shown to
any of those witnesses and neither the prosecutor nor defendant's
counsel asked them about the videotape. Moreover, neither the
prosecutor nor the defense counsel commented about the videotape in
their summations.
In its charge, the trial court told the jurors that the
videotape was "in evidence," and that the court would replay it for
them if they wished. During its first full day of deliberations,
the jury sent out a note asking to view the videotape. After the
jury had screened the video for a second time, the prosecutor
asked, "Would you like to see it again? It's only a couple of
minutes if you'd like." When the jury foreperson asked to "caucus
for a moment," the court interjected, "Only take a couple of
minutes. Play it back, do it again." Thus, the jurors viewed the
videotape a third time.
The Appellate Division rejected defendant's contention that
the videotape was inadmissible, holding that "[t]he videotape,
which was based upon information gathered from witnesses and on-the-scene investigation, was a cumulation of the other
demonstrative evidence presented by the State and was admissible as
a visual aid to assist the jurors in evaluating the case."
Defendant asserts several reasons why the videotape is inadmissible. First, he argues that because the reenactment was not authenticated by a witness to the crime and was not supported by undisputed testimony, it was not admissible. Defendant alleges that to introduce a videotaped reenactment into evidence, the proponent must show that it is substantially similar to the events it portrays. The only reliable way to make that showing is for a witness to authenticate the videotape. Because Investigator Meyers was not present at the crime, defendant contends that his testimony was insufficient to authenticate the videotape.
Closely allied to that argument, defendant claims that the videotape constituted inadmissible hearsay because it was evidence of the out-of-court statements of witnesses to the crime offered to show the truth of the matter asserted in those statements. He characterizes admission of the hearsay as a violation of his Sixth Amendment right to confront witnesses against him.
Defendant asserts also that the videotape's risk of prejudice outweighed its probative value because it showed events about which ample testimony already existed and its admission risked giving the jury an inflammatory "real" image of the crime.
Relevance
A preliminary question in any evidence inquiry is whether the
evidence is relevant. All relevant evidence is admissible unless
it is forbidden by a specific rule. Evid. R. 402 (formerly Evid.
R. 7(f)); Simon v. Graham Bakery,
17 N.J. 525, 530 (1955).
Relevant evidence is "evidence having a tendency in reason to prove
or disprove any fact of consequence to the determination of the
action." Evid. R. 401 (formerly Evid. R. l(2)). Stated otherwise,
relevant evidence has probative value, which is the tendency of the
evidence to establish the proposition that it is offered to prove.
State v. Hutchins,
241 N.J. Super. 353, 359 (App. Div. 1990);
State v. Allison,
208 N.J. Super. 9, 17 (App. Div. 1985).
Before determining whether the videotape was relevant, we note
that the videotape is not a reenactment of the crime. The video
made no attempt to imitate the actions of defendant or any other
person and did not show any of the events that had actually
transpired at the shooting. The third scene of the interior of the
store, the most significant portion of the videotape, lasted less
than a minute.
Indeed, the purpose of the videotape was to assist the jury in
picturing the layout of the store, which still photographs already
in evidence could not portray. The tape showed the relative
positions of the victim, Crawford, and Kennedy in the store at the
time of the crime. Based on the testimony of the State's witnesses
and of defendant, the video seems to have been substantially
accurate in that regard. See Marras v. State, 74l S.W.2d 395, 404
(Tex. Crim. App. l987) (rejecting defendant's argument that
videotape was not sufficiently accurate, because tape was intended
to show only route taken by witness in following defendant and
"[did] not depict any staged, re-enacted criminal acts"), overruled
on other grounds by Garrett v. State, 85l S.W.2d 853 (Tex. Ct. App.
l993).
Other courts have held admissible posed photographs
representing the position of persons at the scene as reflected in
undisputed testimony. II McCormick on Evidence §214, at 16 (4th
ed. 1992); Langley v. State,
213 P.2d 886, 890 (Okla. Crim. App.
1950) (holding properly admitted photos found illustrative of
factual circumstances rather than party's theory or hypothetical
situation). Like such posed photographs, the videotape merely
depicts the crime scene. Because a depiction of the crime scene,
including the relative positions of the witnesses, is highly
probative, we conclude that the videotape was relevant evidence.
Proper Authentication
The authentication of photographic evidence prior to its
admission "seems to contemplate proof that the photograph is a
substantially correct representation of the matters . . . offered
in evidence, and this includes an 'identification' or statement as
to what the photograph shows." M.L. Cross, Annotation,
Authentication or Verification of Photograph as Basis for
Introduction in Evidence,
9 A.L.R.2d 899, 900 (1950) (hereinafter
Cross). For authentication, a witness must identify the persons,
places, or things shown in the photograph or videotape. Id. at
905.
The person testifying need not be the photographer, because
the ultimate object of an authentication is to establish its
accuracy or correctness. To that end, any person with the
requisite knowledge of the facts represented in the photograph or
videotape may authenticate it. Id. at 912. An authenticator need
not even have been present at the time the photograph was taken, so
long as the witness can verify that the photograph accurately
represents its subject. Benjamin V. Madison III, Seeing Can Be
Deceiving: Photographic Evidence in a Visual Age -- How Much
Weight Does it Deserve? 25 Wm. & Mary L. Rev. 705, 708 (1984).
The question of whether a photograph is sufficiently accurate
to justify its admission is a preliminary question for the trial
court. Cross, supra,
9 A.L.R.
2d at 915. To authenticate a
photograph, testimony must establish that: (1) the photograph is an
accurate reproduction of what it purports to represent; and (2) the
reproduction is of the scene at the time of the incident in
question, or, in the alternative, the scene has not changed between
the time of the incident in question and the time of the taking of
the photograph. Garafola v. Rosecliff Realty Co., Inc.,
24 N.J.
Super. 28, 42 (App. Div. 1952).
With technological innovation, motion pictures entered the
scene and presented an evidence-authentication challenge for trial
courts. As McCormick noted:
Motion pictures, when they were first
sought to be introduced in evidence, were
frequently objected to and sometimes excluded
on the theory that they afforded manifold
opportunities for fabrication and distortion.
Even those older decisions which upheld the
admission of motion pictures appear to have
done so on the basis of elaborate foundation
testimony detailing the methods of taking,
processing, and projecting the film.
The prosecutor appears to have used that approach by having Investigator Meyers detail the process used in creating the videotape footage.
As motion pictures have become less of a novelty, a trend has developed away from the more exacting method used to introduce motion pictures towards a simpler method much like that used for photographs:
More recently, however, it appears to have become
more generally recognized that, as with the
still photograph, the reliability and accuracy
of the motion picture need not necessarily
rest upon the validity of the process used
in its creation, but rather may be established
by testimony that the motion picture accurately
reproduces phenomena actually perceived by
the witness.
[Ibid. (emphasis added).]
In practical terms, the authentication of a videotape is a
direct offshoot of the authentication of photographic and motion
picture evidence. See People v. Heading,
197 N.W.2d 325, 329
(Mich. Ct. App. 1972) (holding videotape admissible on same type of
foundation as motion picture because "[a] video tape is nothing
more than a motion picture synchronized with a sound recording").
In New Jersey, State v. Nemesh,
228 N.J. Super. 597 (App. Div.
1988), certif. denied,
114 N.J. 473 (1989), cites II McCormick on
Evidence §214 (3d ed. 1984), for the proposition "that a videotape
should be evaluated for admissibility just as a motion picture and
a similar foundation must be laid." 228 N.J. Super. at 604 n.3.
Indeed, as defendant recognizes in his brief, "videotape evidence
has now become commonplace in criminal cases." See, e.g., State v.
Rodriguez,
264 N.J. Super. 26l, 270-73 (App. Div. l993) (stating
victim became ill after direct examination, videotape of cross-examination at hospital played for jury); State v. Russo,
243 N.J.
Super. 383, 39l (App. Div. l990) (involving thirty-one-minute
videotape of crime scene), certif. denied, l
26 N.J. 322 (l99l);
Nemesh, supra,
228 N.J. Super. 597 at 603-04 (discussing videotape
of intoxicated driver performing breathalyzer and coordination
tests); State v. Bottomly,
208 N.J. Super. 82, 86 (Law Div. l984)
(showing videotape of defendant's "belligerent and antagonistic
demeanor" after arrest for drunken driving), aff'd,
209 N.J. Super. 23 (App. Div. l986); State v. Bunting, l
87 N.J. Super. 506, 508-l0
(App. Div.) (showing surveillance film of robbery of store),
certif. denied, 95 N.J. l8l (l983).
Once a videotape is established as relevant evidence, it is
generally admissible under New Jersey's Evidence Rule 801(e).
Evidence Rule 801(e) defines a writing as:
pictures, drawings, photographs, symbols,
sounds, or combinations thereof . . . set down
or recorded by . . . photographing, . . .
mechanical or electronic recording, or by any
other means, and preserved in a perceptible
form.
Evidence Rule 1001(b) provides that "[p]hotographs include still
photographs, X ray films, video tapes, motion pictures and similar
forms of reproduced likenesses."
Although a videotape qualifies as a writing, to be admissible
in evidence the videotape must be properly authenticated. Evid. R.
901. Evidence Rule 901 provides that the authentication
requirement is satisfied by evidence sufficient to support a
finding that the matter is what its proponent claims.
The two authoritative cases on authentication of videotapes in
New Jersey are Balian v. General Motors,
121 N.J. Super. 118 (App.
Div. 1972), certif. denied,
62 N.J. 195 (1973), and Nemesh, supra,
228 N.J. Super. 597. In Balian, the defense introduced into
evidence motion pictures of a test drive of an automobile similar
to the one involved in that products-liability controversy. 121
N.J. Super. at 125. The motion picture was made at the direction
of General Motors' expert to confirm his testimony that the
automobile was still steerable even if it was in the same condition
that plaintiffs contended their automobile had been in. Id. at
122-23.
The Appellate Division held that motion pictures are generally
admissible if properly authenticated with: (1) evidence relating
to the circumstances surrounding the taking of the film; (2)
evidence detailing the manner and circumstances surrounding the
development of the film; (3) evidence in regard to the projection
of the film; and (4) testimony by a person present at the time the
motion pictures were taken that the pictures accurately depict the
events as that person saw them when they occurred. Id. at 125.
In Nemesh, supra, the defendant was convicted of operating a
motor vehicle under the influence of intoxicating liquor and with
a suspended license. 228 N.J. Super. at 601. The State introduced
a videotape of the administration of a breathalyzer and
coordination test conducted by the arresting officer. Id. at 604.
When the defendant challenged the authenticity of the videotape,
the court applied the Balian criteria for proper authentication.
The Appellate Division upheld the admission of the videotape
because
[i]n this case, a police officer testified
that the tape accurately and faithfully
depicted the administration of the breath-
alyzer test and the physical tests as he
saw them that evening. As to a chain of
custody, the prosecutor was prepared to
produce the custodian of records, but the
municipal judge decided that to be unnecessary
. . .
Admission of the videotape was well within the
municipal court judge's discretion.
[Id. at 605 n.3 (emphasis added).]
Unlike this case, both Balian and Nemesh present situations in
which the event on film was the actual event that was the subject
of testimony. Nevertheless, those opinions clearly point us to the
indisputable conclusion that the videotape of the Fabulous Meat
Center was improperly authenticated. In Balian, the experiment of
the similar car with steering problems was on the videotape and was
the subject of the expert's testimony. The expert conducting the
experiment could properly authenticate the video even though he had
not been at the scene of the original accident because he was
presenting evidence solely of the experiment.
Similarly, the Nemesh videotape captured the actual
breathalyzer test at issue. The police officer who administered
the test could properly authenticate the videotape by testifying
that the videotape accurately depicted the scene at the time of the
test.
In this case, however, the videotape was not rolling at the
time of the crime. An investigator who had not witnessed the crime
filmed it three days later, and that investigator learned of the
positions of the witness only through interviews with other
investigators. Because the videotape is relevant only if based on
its representation of the positions of the witnesses at the time of
the crime, only a witness to the actual crime can properly
authenticate that the video accurately represents the scene of the
crime.
Investigator Meyers could testify only that the video
accurately represented what others had told him the scene of the
crime looked like. Therefore, Meyers failed properly to
authenticate the video because he was not a person present at the
time the crime occurred who could testify that the videotape
accurately depicted the events as he had seen them when they
occurred. Both Paula Crawford and Brian Kennedy, on the other
hand, could have authenticated the video by testifying that it
accurately represented the scene as they had witnessed it.
Unfortunately, the State did not show either Crawford or Kennedy
the tape.
Hearsay
Defendant also correctly asserts that the videotape as
introduced by Investigator Meyers was inadmissible as hearsay
because Meyers did not have personal knowledge to testify that the
videotape accurately depicted the scene as it had appeared at the
time of the crime. The videotape constituted inadmissible hearsay
for virtually the same reason that it was improperly authenticated:
Meyers' testimony was based on what others had told him.
The State, however, claims that the videotape was not
introduced to establish the truth of the matter but, as determined
by both lower courts, was merely "demonstrative evidence . . .
admissible as a visual aid to assist the jurors." Hence, it was
not hearsay. Moreover, the State alleges that even if the tape was
hearsay, the availability of the State's eyewitnesses at trial
cured the "confrontation" issue.
We briefly comment on defendant's assertion that he was unable
to confront witnesses to test the accuracy of the videotape.
Defense counsel had ample opportunity to cross-examine not only
Inspector Meyers but also Crawford and Kennedy about the videotape.
He also had opportunity to show the videotape to defendant for his
comments. He did none of the above. Because defendant had ample
opportunity to confront the witnesses against him, the State did
not violate his constitutional right. Moreover, although his
failure to examine the witnesses does not cure the State's failure
to authenticate the videotape, it does cast substantial doubt on
defendant's challenge to the accuracy of the videotape.
Neither side disputed the general route taken by defendant on
entering the store or the positions of Crawford, Szoke, and
Kennedy. As the defendant conceded in his Appellate Division
brief, "Herein, there was ample testimony from eyewitnesses',
uncontradicted for the most part, as to the events that occurred
leading up to the shooting." Moreover, both Kennedy and Crawford
marked on the still photographs their locations and Szoke's
location together with defendant's path in the store. Those
positions correspond to their positions on the videotape.
Potential for Prejudice
Defendant also alleges that the videotape resulted in undue
prejudice to the defendant. Relevant evidence may be excluded if
its probative value is substantially outweighed by the risk of
undue prejudice. Evid. R. 403. The admissibility of potentially
prejudicial evidence falls largely within the discretion of the
trial court, see State v. McDougald,
120 N.J. 523, 577-78 (1990),
and that discretion is broad. State v. Sands,
76 N.J. 127, 141
(1978). A trial court's mistaken exercise of that discretion
exists when the danger of undue prejudice outweighs the probative
value of the evidence in that it would divert jurors from a
reasonable and fair evaluation of the basic issue of guilt or
innocence. State v. Moore,
122 N.J. 420, 467 (1991) (citing State
v. Sanchez,
224 N.J. Super. 231, 249-50 (App. Div.), certif.
denied,
111 N.J. 653 (1988)). On that point, evidence of an
inflammatory nature must be excluded under Evidence Rule 403 if
probative, non-inflammatory evidence on the same point is
available. State v. Davis,
116 N.J. 341, 366 (1989); State v.
Lockett,
249 N.J. Super. 428, 433 (App. Div.), certif. denied,
127 N.J. 553 (1991).
Because of the indelible impressions that are likely to result
from videotaped and other filmed evidence, such evidence must be
subject to careful scrutiny. II McCormick on Evidence, supra, §
2l4, at l9 (discussing difficulty of limiting impressions resulting
from "extreme vividness and verisimilitude" of pictorial
reneactments); 3 Wigmore on Evidence § 798a, at 260 (Chadbourn
rev., l970) (observing that while filmed reenactment can be made to
favor proponent's view, "any motion picture is apt to cause
forgetfulness of this and to impress the jury with the convincing
impartiality of Nature herself"). Nonetheless, the videotape in
this case presents no such danger.
The introduction of the videotape was not unduly prejudicial
to defendant so as to divert the jurors from a reasonable and fair
evaluation of the issue of guilt or innocence. First, the
videotape did not address the crux of the dispute at trial: whether
defendant had fired behind himself in a panic as he turned to flee,
or had coolly stepped up to Szoke and fired the gun inches from
Szoke's head. As previously stated, no one disputed the location
of the witnesses. Indeed, ample and sufficient evidence verified
the conditions appearing on the videotape.
Harmless Error
Although the videotape did not unduly prejudice defendant, it
was not properly authenticated. Meyers was not called to the
Fabulous Meat Center until after the crime had already taken place.
Only Crawford and Kennedy, who saw Wilson enter and walk around the
checkout area, could properly testify that the course taken by
Meyers in filming the videotape accurately depicted the course
taken by Wilson at the time of the shooting.
The State could have avoided this entire controversy had
either Paula Crawford or Brian Kennedy authenticated the videotape.
Both were present at the scene of the crime so they could easily
have testified that the videotape accurately depicted the setting.
However, the improper authentication error was harmless and clearly
not "capable of producing an unjust result." R. 2:l0-2.
Here, the images depicted in the video focused entirely on
undisputed facts. No question existed concerning Wilson's entry
into the Fabulous Meat Center, his route of travel towards the
checkout area, or his escape route, which were the only subjects of
the videotape.
Wilson's defense focused strictly on his interaction with
Szoke and the possibility of an accidental shooting when Szoke
pushed Wilson. The videotape shows nothing related to that issue.
In fact, the videotape could much more easily be characterized as
bland instead of inflammatory. Its admissibility into evidence
certainly does not result in an abuse of the trial court's
discretion and was clearly incapable of affecting defendant's
conviction. State v. Martini, l3l N.J. l76, 25l (l993).
Conclusion
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Handler, Pollock, O'Hern,
and Stein join in this opinion. Justice Clifford has filed a
separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
51 September Term 1993
STATE OF NEW JERSEY
Plaintiff-Respondent,
v.
JOSEPH LEE WILSON, JR.,
Defendant-Appellant.
CLIFFORD, J., dissenting.
This case came to us under false pretenses. We granted
defendant's petition for certification, ___ N.J. ___ (1993),
laboring under the illusion that we would come to grips with the
provocative issue of the admissibility, in a capital-murder
prosecution, of what the petition referred to as a videotaped
reconstruction of the robbery and shooting. Had the tape been
available before we considered the petition and had we discovered
then, rather than after oral argument, that the tape displays
little more than a sequential series of crime-scene photos, we
would have denied the petition out of hand. At this point,
rather than wrestle with a bunch of non-issues, I would vacate
certification as having been improvidently granted.
I mean no disrespect to the State, but its insistence that the videotape was properly authenticated is nonsense. For whatever reason, the prosecutor failed to produce any witness to the occurrence to testify that he or she had viewed the tape and
that to the witness's knowledge and recollection the still-lifes,
the crime scene, and the surrounding neighborhood appearing on
the tape accurately represented the conditions and the locations
of the various participants and witnesses as they had existed at
the time of the crime. The proposition is so basic, so well-known, as to render unnecessary any citation of authority.
Nor do I mean any disrespect to the defense, but its
insistence that the introduction of the videotape was
prejudicially erroneous is likewise nonsense. If the three-minute contents do not put the viewer to sleep, they surely
induce no more than mild bewilderment, a curiosity about what
possible force anyone could be expected to attach to this
innocuous little travelogue. The inculpatory potential is non-existent.
Finally, at the risk of straining the bonds of collegiality, and with assurances of my profound respect for the majority, I view the Court's insistence on lavishing its collective energy on this now-unmasked appeal as -- well, nonsense. Not one new statement of law comes out of this case, not one heretofore unannounced principle, not one little nuance or refinement of long-existing law -- nothing not already familiar to every first-year law student. We should simply acknowledge that the issue is not at all what we thought it was and move on.