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Detective’s narrative of events shown on surveillance videos properly admitted under lay opinion rule

State v. Johnnie Lee Tucker, 2017AP840-CR, District 1, 8/28/18 (not recommended for publication); case activity (including briefs)

Applying State v. Small, 2013 WI App 117, 351 Wis. 2d 46, 839 N.W.2d 160, and the lay opinion rule, § 907.01, the circuit court properly allowed a detective to narrate the events recorded on multiple surveillance cameras based on his having viewed the recordings “many times.”

Tucker was charged with shooting two men outside a tavern, killing one and wounding the other. (¶¶1, 6). The tavern had ten surveillance cameras, inside and out, which recorded the comings and goings of various people, including Tucker and the victim. (¶7). The detective narrated the events on the videos as they were shown to the jury, identified the “subject” or “suspect” inside the bar, and described him as the person who “would be the shooter outside.” (¶¶2, 8-9). Other witnesses who knew Tucker identified him in the videos. (¶6).

Tucker objected to the detective’s testimony on the ground that the detective was improperly identifying him as “the shooter outside” given that he had no personal knowledge of Tucker before the shooting that night and it was the jury’s job to decide who the shooter was. (¶¶8, 17). Relying on Small, which sanctioned testimony about what the defendant was saying on a surveillance video, the circuit court allowed the testimony, but cautioned the jury that it was their role to determine whether Tucker was the shooter. (¶¶8, 10).

The court of appeals affirms:

¶18     …[T]he record contains no support for the factual assertion on which Tucker’s arguments are based. In the testimony in question, Tucker is never identified as the shooter. The testimony merely tracks the movements of the shooter—identified by the witness as “the suspect”—inside and outside of the tavern. In a well-crafted jury instruction, the trial court correctly told the jury[] that it was free to disregard even the opinion about the movements of the shooter. The trial court told the jurors they were responsible for determining what they saw on the video and also for the separate question, which the detective’s testimony did not answer, of whether the defendant was the person seen in the video. We assume that “a properly given admonitory instruction is followed[.]” State v. Leach, 124 Wis. 2d 648, 673, 370 N.W.2d 240 (1985). ….

¶19     Moreover, outside of the presence of the jury, the trial court clearly set forth the proper legal basis for its ruling admitting the testimony. The trial court’s analysis addressed each of the three requirements for lay testimony under [§ 907.01]: based on the witness’s perception; helpful to the determination of a fact in issue; and not based on specialized knowledge. It stated that the detective’s testimony about the surveillance video was “verified through his own perception” as to the accuracy of the time stamp and as to the way the night vision cameras affected the colors shown on the videos. It noted that he had watched the videos many times and observed the multiple angles of various “people go[ing] in and out” of the tavern. The court noted that it was helpful to the jury because “[t]hese videos are not easy to follow.” The trial court compared the detective’s testimony to the officer’s testimony in Small concerning what was said on surveillance footage, noting that in Small, “[t]he jury listened to it and no specialized scientific or technical equipment was used to analyze the audio because the officer’s opinion of what was said was rationally based on his perception” and that “that’s really very much the case here.”

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