Caught on Camera

Surveillance camera footage of crime scenes often helps law enforcement officers identify an unknown perpetrator. This kind of footage can be equally powerful at trial, convincing jurors that the person depicted in the video is the defendant in the courtroom. There are foundational requirements that the State must satisfy for the display or admission of such evidence, and the state’s appellate courts have reviewed them in a handful of recent cases.

State v. Snead. Jeff wrote here about the supreme court’s opinion in State v. Snead, __ N.C. ___, 783 S.E.2d 733 (2016). That case involved the theft of name-brand shirts from a Belk department store. Video footage of the theft was introduced at trial. The state supreme court determined that testimony from the store’s regional loss prevention manager that the recording system was industry standard, was in working order, and the recording shown to the jury was the same one he reviewed was sufficient to authenticate the video.

State v. Fleming. State v. Fleming, __ N.C. App. __, 786 S.E.2d 760 (2016) involved the theft of purses from a Marshalls store in Charlotte. The State’s evidence at trial showed that the defendant Fleming went into the Marshalls, walked through the handbag section, and then left the store.  His accomplice then came into the store, took handful of name-brand handbags and headed for the exit.  A store manager stopped the man at the exit. He pushed her out of the way, left the store, and got into a car that was driven by the defendant. The two left the scene. A law enforcement officer identified the Fleming from the car’s license plate and from the surveillance video.  Fleming agreed to speak to the investigating detective, and the interview, in which Fleming confessed to participating in the theft, was recorded.

At trial, the State presented two types of recordings: (1) the videotaped interview and (2) two surveillance videos from other area department stores within a month of the Charlotte incident that showed the defendant taking handbags from those stores. The latter evidence was offered pursuant to N.C. R. Evid. 404(b) to show that the Charlotte theft was part of a common scheme.

Video for illustrative purposes. The State introduced the recording of Fleming’s confession through the testimony of the detective who interviewed him. The recording was introduced solely for the purpose of illustrating the detective’s testimony.  All that is required to introduce a video recording for illustrative purposes is testimony that the video fairly and accurately illustrates the events recorded. Because the officer so testified, and the video was admitted only to illustrate his testimony, the court of appeals found no error in its admission.

Video as substantive evidence.  Fleming objected to the introduction of one of the surveillance recordings depicting his theft of handbags from another store on the basis that the store employee who authenticated the recording was not in the store when the handbags were stolen.  Relying on Snead, the court rejected this argument. The employee, a corporate investigator, testified that he was familiar with the store’s camera system, the system was functioning correctly at the time of the theft, he made a copy of the surveillance video, and the video proffered by the State was the one he had copied and it had not been edited. The appellate court held that this evidence properly authenticated the video.

State v. Patterson. State v. Patterson, ___ N.C. App. ___ (Oct. 4, 2016), involved the brazen mid-day theft of a laptop and iPad from a business office in Charlotte. Brian Gillespie, an employee at a financial services firm, saw a man he had not seen before walk into an office assigned to his colleague, David Hay, while Hay was out. When the man walked out of Hay’s office, he and Gillespie made eye contact. When Hay returned to the office, his computer bag containing his MacBook Air laptop and iPad were missing. The brand-names matter here, as anyone with an iPhone or iPad can attest. What do you do if your iDevice is missing? Look for it on Find my iPhone, of course. Hay tracked the iPad to a strip mall across from a light rail station.

As Hay turned into the parking lot, Hay saw a man, whom he identified at trial as Patterson, walking with Hay’s computer bag on his shoulder. He flagged down a police officer who arrested Patterson.

At trial, the State published surveillance video footage from the interior of the light rail train that traveled from the area of Hay’s office building to the light rail platform near the strip mall where the defendant was arrested. The State played the footage for a second time during the testimony of Detective Post, who investigated the crime. The prosecutor asked Post to indicate when she recognized someone in the footage. Post identified Patterson, who did not object. She then said Patterson was carrying the computer bag in the footage. Patterson objected, and was overruled. Post said she could tell that Patterson was in the video because she was familiar with him and he was very tall. As the video continued to play, she repeatedly identified Patterson and said he was holding the computer bag in the footage. Post also testified that Patterson was wearing the same clothes in surveillance footage that he wore when she observed him in the back of a police car and when she interviewed him.

The State also introduced into evidence a still image showing a person exiting the office building on the day the computer bag was taken.The State asked Detective Post to identify the person in the photograph. Patterson objected, but was overruled. Post then identified Patterson in the photograph.The State asked whether anything was peculiar about Patterson in the picture. Again, Patterson objected and was overruled. Post then responded that a rectangular object, consistent with the shape of the computer bag, appeared to be tucked under defendant’s shirt.

When the witness illustrates the video. Patterson argued on appeal that the trial court erred in permitting Post to (1) identify him in the light rail surveillance footage, (2) testify that he could be seen holding David Hay’s computer bag in the surveillance footage, and (3) identify him in the still image from the office building. Patterson argued that Post was in no better position than the jury to evaluate this evidence; thus, her testimony was inadmissible and prejudicial lay witness testimony.

The court of appeals noted that lay opinion testimony identifying a person in a photo or video is permissible when the testimony would be helpful to the jury and does not invade its fact-finding function and when the helpfulness outweighs the potential prejudice to the defendant.

Several factors are relevant to that analysis: (1) the witness’s level of familiarity with the defendant’s appearance; (2) the witness’s familiarity with the defendant’s appearance at the time the surveillance video or photograph was taken or when the defendant was dressed in a manner similar to the individual depicted in the video or photograph; (3) whether the defendant had disguised his appearance at the time of the offense; and (4) whether the defendant had altered his appearance prior to trial.

Post interviewed Patterson immediately after his arrest, so she had some familiarity with his appearance and how he was dressed upon his arrest. There was, however, no evidence that Patterson’s appearance was disguised at the time of the offense or was altered before trial.

The court of appeals determined that Patterson’s failure to object to Post’s narration of the video footage at several critical junctures waived his review of the challenges to her testimony. Patterson did object to both questions posed to Post about the still photograph, but the court noted that those were general objections that may not have preserved the defendant’s challenge. Nevertheless, the court explained that even if Patterson had preserved his right to review, he was not entitled to relief because he was not prejudiced by the admission of the testimony. The court held that the State presented sufficient evidence aside from Post’s testimony to allow the jury to determine that Patterson was in the office building and that he stole the computer bag and computers. The jury could identify Patterson from the video and the still image. Other evidence also placed Patterson in the office building, including Gillespie’s identification of Patterson following his arrest.

Absent this sort of additional evidence, and with a proper objection, this kind of evidence might be ruled inadmissible, and, if admitted, might warrant a new trial. See State v. Belk, 201 N.C. App. 412 (2009) (determining that trial court erred in allowing officer to testify that person in surveillance video was the defendant and ordering a new trial).

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