SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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STATE OF NEW JERSEY, Plaintiff

- Respondent,

v. ROLANDO MORRISON , a/k/a ROLONDO MORRISON, DANNY BOATWRI GHT, and CORLANDO GRANT, Defendant

- Appellant.

____________________________

Submitted October 7, 2020

– Decided Before Judges Alvarez and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Hud son County, Indictment No. 15

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- 0591. Joseph E. Krakora, Public Defender, attorne y for appellant (Rasheedah Terry, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecuto r, on the br ief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL O F THE APPELLATE DIVISION This opinion shall not "constitute precedent or be bindin g upon any court

. " A lthough 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

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November 2 , 20202 A

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PER CURIAM Tried by a jury, defendant Rolando Morrison was conv icted 1 of second

degree aggravated assault (serious bodily injury), N.J.S.A. 2C:12

- 1(b)(1) (count two); third

- degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12

- 1(b)(2) (cou nt three); second

- degree possession of a firearm for an unlawful
purpos e, N.J.S.A. 2C:39

- 4(a) (count four); second

- degree unlawful possession of a handgun, N.J.S.A. 2C:39

- 5(b) (count five); and fourth

- degree obstruction, N.J.S.A. 2C:29

- 1 (coun t six). Aft er the verdict, h e entered a guilty plea to second

- degree certain perso ns not to possess weapons , N.J.S.A. 2C:39

- 7(b) (count seven). O n December 7 , 2018, the trial judge merged counts two and three, and counts four and five, and imposed the fo llowing conc urrent sentences: a Graves Act sentence of fifteen years subject to th e No Early Release Act 's (NERA), N.J.S.A. 2C:43

- 7.2, eighty

- five percent parole ineligibility on count two, N.J.S.A. 2C:44

- 3(d), N.J.S.A. 2C:43

- 6(c), and N.J.S.A. 2C:39

- 4(a) ; a Graves A ct five years subject to forty

- two months of parole ineligibility on

co unt four, N.J.S.A. 2C: 39

- 4 ( a ) ; eighteen months on count six ; and five years

1 The jury acquitted defendant of the first count of the indictment, second

- degree attempted murder, N.J.S.A. 2C:5

- 1, and 2C:11

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subject to five years of parole ineligibility on count seven. Thus, his aggregate
sentence was f

if teen years subject to NERA. He appeals and we affirm. Surveillance video record ings shown to the jury, taken from the outside of a Jersey City bar, captured an altercation that occurred August 31, 2014, at approximately 2:00 a.m. The victim is depicte d struggl ing with a man wearing clothing similar to that worn by defendant moments later when he was arrested , including a dark shirt, baseball cap, white glove, and green camouflage pants

. The white

- gloved man is seen briefly turn ing his back away from t he struggle and the camera, while removing an object from beneath his shirt at the waistband. After defendant turns back, t he two men briefly exchange blows , but defendant hold s a black object , gaining the upper hand while striking the victim repeatedly

. The men, still fighting , move out of camera range for a few seconds

. O nly the vic tim re appears moments later ; he takes a few steps and walks into the street towards a passing police car. All the officers who testified at the Rule 104 hearing regarding t he admissibility of the video film and at the trial were members of the Jersey City Police Department. O fficer Ed Redmond said that while on patrol he heard the sound of a shot as he passed the bar, inform ing dispatch immediately, and
turn ing around. W he n shown the video, he identified his patrol car in the upper4 A

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corner of the screen t ravelling in one direction, and then returning in the other.
He also testified during the trial , add ing that the victim collapsed on the hood of the vehicle. Redmond des cr ibed the victim to the jury : he was in pain , and "very uncooperative." When the v ictim was turned over, Redmond saw a gunshot wound to his abdomen. The victim' s intestines appeared to be protruding from the wound. The victim refused to discuss the in ci dent with the officers; none of the other bar patrons were willing to speak to poli ce either

. Anthony Sharperson, the bar owner, testified at the Rule 104 hearing as well as at trial. On both occasions he said the exterior surveillance cameras were in go od working order , although the time stamp was inaccurate. He also said that he tur ned the tape over to the Jersey City Police Department after the
incident , and that the depiction of the sidewalk outside the bar was accurate. The judge barred defendant from cross - examin ing Sharperson regarding his alleged confrontation with the victim that evening. The judge reasoned that
since defendant had no t provided the State with notice that he would be raising the defense of self

- defense, and the purpo se of admis sion was unclear, it would have been an improper invitation to the jury to engage i n she e r speculation if he5 A

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allowed it . Although third

- party liability is mentioned by counsel in passing, his focus appeared to be self

- defense

. Officer Eddie F e rnandez hea ded to the bar after receiving the dispatch. He canvassed the area for anyone "pos sibly fleeing [

. ] " Nearby, he saw defendant bending over a car. By the time Fernandez left his vehicle, defendant had crawled underneath a car . When t he officer asked defe ndant to stand, he stood up and ran. The officers gave chase and arrested him. F e rnandez collected a white and blue baseball batting

- type glove from defendant. N o blood was visible on either defendant or his clothing.
Lieutenant Keith Armstr ong had bee n previously assigned to the department's "cease fire unit," which was responsible for the investigation of

non - fatal shootings. Over his career, he had been involved in over one hundred such investigations, and had been trained as an officer i n the use o f handguns.
At the scene promptly after the incident , h e found two baseball caps u p against the building, and a spent shell casing on the ground . Defense counsel objected to Armstrong explaining the meaning of "shell casing" because he had not been quali fied as an expert. The judge overruled the objection, stating without comment from counsel , that the fact the victim was shot was undisputed. Armstrong proceeded to de scribe the separation process that occur s when a6 A

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bullet is fired, and the ejection of t he empty shell casing. The jury was shown a photograph of the casing on the ground in front of the bar. The State also moved into evidence four photographs of the victim's face, which are included in the app endix on appeal. They depict the victim lying in a hospital bed, his eyes swollen shut. Also moved into evidence were defendant 's blue and white sneakers , and the clothes he was wearing when arrested. Additionally, the State presented the jury with enla rged still photographs taken from the video de picting the item defendant was holding. The State presented Allison Lane, a scien tist from the State Police
L aboratory , who explained the forensic examination of the clothing, glove, and a cap submitted for t esting , a ctual ly performed by an employee who had retired. Lane was qualified as an expert, stating she was not onl y familiar wi th the procedures employed during testing, but also with the retired scientist's examination, and independently reviewed he r fi ndings. T he procedures used in her testing "w ere in line with . . . protocols in the laboratory." The items were
then forwarded to the DNA lab because a stain on the glove was presumptive for blood, and skin cells were found inside the hat that might gen erate a DNA match. When test e d, the clothing items traced back to defendant.7 A

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At the close of the State's case, defense counsel moved for dismissal pursuant to State v. Reyes , 50 N.J. 454 (1967). The judge denied the motion , concluding that despite the u nusual nature of the State's proofs, entirely

c ircumstantial evidence due to the non

- cooperative victim and eyewitnesses, a

reaso nable jury could nonetheless convict when all inferences were drawn in favor of the State. Those proofs included the surveilla nce video , and the hat be a r ing defendant's DNA

. Defendant draws our attention to the following alleged errors:
POINT I. THE TR IAL COURT’S EXCLUSION OF DEFENDANT’S THIRD

- PARTY DEFENSE VIOLATED HIS RIGHT TO A FAIR TRIAL. POINT II. THE ADMISSION OF IMPROPER EXPERT TESTIMONY FROM LAW ENFORCEMENT OFFIC ERS REDMOND AND ARMSTRONG DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
A. Re dmond’s Determination That Irwin Sustained a Gunshot Wound Related To Matters That Were Beyond The Ken Of An Average Juror (Not raised below). B. Armstrong’s Testimony Abou t The Components Of A Bullet, The Trajectory Of A Projectile And The Landing Spot F or A Spent Shell Casing Went Beyond The Ken Of An Average Juror.8 A

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- TESTIFYING EXPERT. POINT IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMIT TED THE CHERRY’S LOUNGE VIDEOTAPE INTO EVIDENCE AS THE STATE FAILED TO PROPERLY AUTHENTICATE THE VIDEOTAPE.
POINT V. THE ADMISSION OF CUMULATIVE AND UNDULY PREJUDICIAL PHOT OGRAPHS OF THE ALLEGED VICTIM DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (No t raised below).
POINT VI. THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL OR GRANTED DEFENDANT’ S MOTION FOR A NEW [TRIAL] BECAUSE NO REASONABLE JURY COULD HAVE FOUND DEFENDANT GUILTY BEYOND A REASONABLE DOUBT.
POINT VII. THE COURT ERRED IN F AILING TO PROVIDE A CHARGE PURSUANT TO STATE V. CLAWANS , 38 N.J. 162 (1962) REGARDING THE STATE'S FAILURE TO PRODUCE THE VICTIM AS A WITNESS (Not raised below).
POINT VIII. THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY THAT IT MUST FIND DEFENDANT NOT GUI LTY IF THE STATE FAILED TO PROVE ALL THE ELEMENTS OF THE SECOND

- DEGREE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CONSTITUTES REVERSIBLE ERROR (Not raised below).9 A

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POINT X. THE MATTER MUST BE REMANDED FOR RESENTENCING TO ENABLE THE COURT TO PROVIDE A STATEMENT OF REASONS FOR ITS DECISION TO APPLY THE MANDATORY GRAVES ACT EXTENDED TERM TO DEFENDANT’S CONVICTION FOR SECOND

DEGREE AGGRAVATED ASSAU LT.
I. Defendant's first point is that the judge's refusal t o allow him to question Sharperson regarding the bar owner's own confrontation with the victim violated his right to a fair trial. It is undisputed that "a defendant is entitled to prove his
innocence b y showing that someone else committed the crime." St ate v. Koedat i ch , 112 N.J. 225, 297 (1988). Similarly, the statutory defense of se lf

defense, N.J.S.A. 2C:3

- 4 , can be raised even if the interaction between defendant and the victim commenced as mutual combat. State v. Gentry , 439 N.J. Super. 57, 69

- 71 (App. Div. 2015). In this case, it appeared that defense counsel was arguing that the victim had "threatened a number of people" and
that thus some one else could have shot him, or defendant could have a cted in10 A

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self

- defense. But, as the judge pointed out, just because the victim may have been prohibited from going back into the bar, and was aggressive that evening, does not connect the shooting with any particular confrontation other than the

one defenda nt had with the victim. The video shown to the jury clearly depicted interactions between the victim and a person dressed in clothing s imilar to that worn by defendant , seconds before t he victim collapsed onto the hood of the passing police car. The judg e opined that to have allowed the testimony would hav e merely encouraged the jury to speculate. Thus, he denied the cross examination

. Th e video makes clear that although anything is possible, the likelihood that a third person sho t the victim , simultaneously with his continuing confrontation off

- screen with the defendant , is nothing more than unfounded speculation. As the court said in Koedatich , some evidence has to be proffered linking a third party and the victim, or a third pa rty and the crime. 112 N.J. at
300. There must be "some thread" that wou ld enable a reasonable jury to view
that third

- party confrontation as having releva nce to the shooting. See ibid. The evidence must rational ly tend "to engen d er a reasonable doubt with respect to

an essential feature of the State's case. " State v. Lofti n , 146 N.J. 295, 345 (1996) (quotations omitted)

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No such e v idenc e would be dev e lop ed through th e line of questioning . A t trial, t hough not on appeal, counsel suggested self

- def ense as the theory that

w a rrant ed cross - examin ation of the bar owner. Eve n if it had been clearly argued, nothing on the video depict ing the struggle betwee n the unarmed victim and an armed defendant justified his use of force, as required by N.J.S.A. 2C:3

- 4. Nothing in the video or the State's proofs suggested third

- party gui lt. T h e argument lacks merit.
II. Plain error is "error possessing a clear cap acity to bring about an unjust result and which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his [or her] defens e." State v. Timmendequas , 161 N.J. 515, 576

- 77 (1999) (quoting State v. Irving , 1 14 N. J. 427, 444 (1989)). "[A]ny finding of plain error depends on an evaluation of the overall strength of the State's case." State v. Chapland , 187 N.J. 275, 289 (2006). The unjust result must be "sufficient to raise a reasonable doubt as to whether t he er ror led the jury to a result it otherwise might not have reached."
State v. Macon , 57 N.J. 325, 336 (1971). Harmless errors should be disregarded by the court, even wh ere the trial court is found to have abused its discretion in admitting evidence an d fai led to properly instruct the jury. See State v. Prall ,12 A

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231 N.J. 567, 581, 587

- 8 8 (2018); R. 2:10

- 2 ("Any error or omission shall be disregarded by the appellate court u nless it is of such a nature as to have been clearly capable of producing an unjust resu lt . . . ."). At trial, defendant did not object to the admission of Redmond's testimony that the victim sustained a gunshot wound in the absence of medical evidence

. On appeal, d efendant objects that the " diagnosis " required it

. The argument f ails because pursuant to N.J.R.E. 701, a witness may state his opinion so long as it is rationally based on his perception s , and will assist the jury in determining a fact a t issue. The admissibility of opinion evidence rests within the sound discretion o f the trial judge. State v. LaBrutto , 114 N.J. 187, 197 (1989). It bears repeating that the fact defendant was shot was not in dispute.
D efendant wa s silen t when the jud ge ruled on Armstrong's proposed testimony about the shell casing and observed that the occurrence of the shooting was not in dispute . T he doctrine of invited error is therefore applicable. Under that doctrine, we do not review a claim of error when a pa rty's statements or conduct were relied upon by the trial judge in reaching a decis ion l ater appealed

. See Brett v. Great American Recreation , 144 N.J. 479, 503 (1996). The judge relied13 A

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on defendant's silence in making his evidentiary ruling as to Armstr ong

— but it applies to Redmond's testimony as well. Even if the doctrine of invite d error did not apply, plain error did not occur when the police officer describe d what he saw. H e saw an injury in the victim's abdomen , from which t h e v i ctim' s intestines appeared to be protruding. Although certainly, such wounds can result from causes other than a gunshot, it

wa s reasonable for the officer to have testified , without objection , to the sequence of events. A s he was driving by the bar, he heard a gunshot, and when he return ed to the scene , he immediately loc ate d an injured person. His

o bservation in the context of what he heard , and his training and experience

cause d him to conclude that the injury was a gunshot. T hus, t his argument has no merit. Even if error, the error was harmless.
Defendant also objec ts to Armstrong's testimony ex plaining how a bullet separates once shot out of a gun, causing the empty casing to fall to the ground. The officer had worked with the Jersey City Police Department for tw enty

- four
years and was assigned over his career to t he street crimes unit, the gan g task force, and the " cease fire " unit. He had participated in over one hundred investigations and receiv ed training in handguns. T he officer could have been formally qua lified as an expert , able to testify regarding the relatively innocuous14 A

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information that a spent shell casing lands on the ground. The judge limited the officer's testimony to that point . The nature of this testimony was within the sphere of common knowl edge of th ose familiar with guns.
I n similar situations, the New Jersey Supreme C ourt has permitted lay opinion testimony, such as that of both Redmond and Armstrong, given their employment, experience, and observations. See State v. McLean , 205 N.J. 43 8, 459 (2011). Examples of similar s cenarios found in Mc L ean are testimony regardi ng whether a neighborhood is a high

- crime area, an officer's observations of an accident scene, including skid marks, and an officer 's interpret at i o n of street slang. Id. a t 458

- 59. Th e admission of Redmond a nd Armstrong's testimony did not deprive defen dant of his right to a fair trial . I t was nothing more than lay opinion evidence.
III. Defendant also contends that the court should not have admitted the testimony of the State Police laboratory serology uni t scientist's discussion of the testing conduc ted by a retired employee. This argument lacks merit because the scientist , consistent with current caselaw, did not passively repeat the contents of the report. She state d that she was familiar with the test ing protocols the retired employee followed an d had independently reviewed the retired15 A

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employee's findings. Thus, her testimony that the glove tested positive presumptive for the presence of blood, and the hat containe d "potential skin
cells [,]" was proper. The items were sent on for further analysi s. The requirements of Crawford v. Washington , 541 U.S. 36, 68 (2004) ,

w ere satisfied. As in State v. Michaels , 219 N.J. 1, 45

- 46 (2014) , the scientist independently ver ified the report protocols, forming independent conclusions about the results. Thi s argument also lacks merit

. IV. Videotapes are treated similarly to a writing under N.J.R.E. 801(e) and therefore must be authenticated before admission. See State v. Wil son , 135 N.J. 4, 17 (1994). The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a findi ng that the matter is what its proponent claims. N.J.R.E. 901. In order to es tablish the foundation for admission, no hyper technical steps must be followed

—
rat her, the testimony must establish the accuracy and correctness of the film. Wilson , 135 N.J. at 14. And as is the case with all evidence, admission of a video is subject t o abuse of discretion review. See State v. Brown , 463 N.J. Super. 33, 51 ( App. Div

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In this case, the judge's admission of the videotape and his decision at the close o f the Rule 104 hearing w ere not an abuse of discretion

. Sharperson's and
Redmo nd's testimony regarding the video suffice d to authenticate it. The suggestion tha t because no chain of evidence was proffered, or that because Sharperson could have manipulate d the tape in some fashion , it should not have been admitted, is speculative. Th e time stamp discrepancy was explored by defense counsel ; it was the only issue w ith the video

. Accordingly, t he judge did not abuse his discretion by admitting it

. V. Defendant argues that either his Rule 3:18

- 2 motion for acquittal , or his motion for a new trial, should have been granted. B ecause no actual shooting i s depicted on the video, the victim refused to cooperate, no eyewitness spoke with police, and defendant claims the video is allegedly insufficient to establish defendant 's possession of a gun , even drawing all inferences in favor of the State, no reasonable jury could have convicted defendant.
Af ter conviction, defendant further claims, given that all proofs were circumstantial , the interests of justice required dismissal of the charges . That the judge commented that he could not have found the object seen in defenda nt's17 A

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hand was a gun did not me an a reasonable jury could not reach a contrary conclusion. There was sufficient circumstantial evidence for them to convict.
Defendant was seen on the video , holding a black object, apparently pistol whipping the victim, a nd was arrested moments later in the same clothes. A gunshot wa s heard, admittedly off camera , while the two men struggl e d

. W hen police arrive d moments later, the victim h a d a gunshot wound to his abdomen. A spent shell casing wa s found at the scene, co rroborating that a shot was fired. Defendant wa s located hiding under a nearby car, and when told by police to walk toward them, he t ook off running.
The trial court is b ound pursuant to rule, to give the benefit of all favorable inferences to the State . Viewing the circumstantial evidence in this case in that light, it is clear that a reasonable jury could find guilt of the charges beyond any reasonable doubt. See Rule 3:18

- 1; State v. Reyes , 50 N.J. 454 (1967). A motion for a new trial is granted pursuant to Rule 3:20

- 1 where "required in the interest of justice." These motions are addressed to the discretion of the trial judge and are not reversed unless a clear ab use of that discretion has been established. State v. Russ o , 33 3 N.J. Super. 119, 137 (App. Div. 2000). We merely determine whether the court could have made its decision on sufficient credible evidence present in the record. That certainly18 A

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appears to be the case here. Enlarged stills were presented to the ju ry taken from the video showing an object in defendant's hand . F rom these photographs , a reasonable juror could readily conclude defendant was holding a gun. A t trial at least, no one was contest ing that the victim had been shot. N o manifest denial of j ustice occurred; the jud ge's decision was reached on sufficient credible evidence present in the record.
VI. Defendant also contends that the judge should have found mitigating factor seven, lac k of criminal record, N.J.S.A. 2C:44

- 1(b)(7) . The judge di d not err in his finding s of aggravating and mitigating factors. As indicated in the presentence report , in addition to having an extensive juvenile history, this thirty

- eight

- year - old defendant i n 2018 had been previously convicted of eight
indictable of

fenses , including federa l offenses, and five disorderly persons
matters. I n 2004, defendant was sentenced for a federal offense involving the unlawful transport of firearms to 110 months imprisonm ent. Thus, to say he was offense

- free is not within the in tent of the statute . If he was in federal custody, the fact he was law

- abiding during that time does not support mitigating factor seven. H e was charged in 2011 with attempted murder and related offenses that mirror these charges

.19 A

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- 3(e)(1)(E) . We touch upon them briefly. Defendant asserts that the admission of the four photographs of the victim's face denied him his right to a fa ir trial because they were too prejudicia l. Those photographs are included in the appendix. They simply depict the victim's face, his eyes swollen shut . They would not inflame the passions of a jury. T heir admi ssion did not prejudice defendant's right to a fair trial. Defendant's argument t hat the judge should have given the State v. Clawans , 38 N.J. 162 (1962) , charge also lacks merit. A fundamental requirement for Clawans is that the victim be unavailable t o the defendant. T he victim was equally a vailable to both parties , making the Claw ans inference unavailable

. Id. at 171. Defendant also contends that the judge erroneously instructed the jury

. The State provided a copy of a CD , however, created from the courtroom recording to refute the misstatement in the transcript

. The judge , trac king the model jury charge, actually said that if the State failed to prove beyond a reasonable doubt any elements of the offense, the jur y must find defend ant not guilty. See M odel Jury Charges (Criminal) , "Possession of a Firearm With a20 A

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Purpose to Use I t Unlawfully Against the Person or Property of Another (N.J.S.A. 2C:39

- 4(a) ) " (rev. Oct. 22, 2018 ). 2 Finally, defendant argues that the matter should be remanded for

rese ntencing so that the court could provide a statement of reasons regarding his decis ion to apply the Graves Act extended term to defendant's conviction for
second

- degree aggravated assault. We disagree that the j udge did not do so ; the judge gave a detaile d and thorough exposition as to his imposition of sentence overall, including the m andatory Graves Act term. Affirmed.

2 Th e court gave Model Jury Charges (Criminal) , "Possession of a Firearm W ith a Purpose to Use I t Unlawfully Against the Pers on or Property of Another (N.J.S.A. 2C:39

- 4(a) )" (2003), which was revised on October 22, 2018 after defendant's trial. The 2018 revis ion did not, however, alter the content of the portion of the jury charge disputed by defendant.