On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-08-2030.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012
Before Judges Cuff and Waugh.
We granted the State leave to appeal the Law Division's order barring it from using previously-taken photographs of defendant Dayshoun Harris holding a sawed-off shotgun at his trial arising from an armed robbery at which the State alleges he used the same sawed-off shotgun. We now affirm.
We discern the following facts and procedural history from the record on appeal.
Harris was indicted on August 31, 2011, and charged with the following offenses: second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree robbery, contrary to N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession of a firearm without a permit, contrary to N.J.S.A. 2C:39-5(c) (count three); second-degree possession of a sawed-off shotgun for unlawful purposes, contrary to N.J.S.A. 2C:39-4(a) (count four); third-degree unlawful possession of a sawed-off shotgun, contrary to N.J.S.A. 2C:39-3(b) (count five); and fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a) (count six).
The indictment was based on events that took place in East Orange on the night of June 14, 2010. The State contends that Harris and co-defendant Tatiana Watson approached the victim from behind, at which time Harris confronted him, held a sawed-off shotgun to the victim's head, and demanded his money. After the victim dropped to the ground, the State contends Watson took money from his pockets. Harris and Watson then left the scene.
The victim reported the robbery to the police, describing both of his assailants and the direction in which they had fled. The police arrived at the scene, located Harris and Watson, and arrested them. They were subsequently identified by the victim. During a search of the general area, the police located a sawed-off 12-gauge shotgun with all identifying marks removed. The victim identified the shotgun as the one used in the robbery.
Watson entered a plea of guilty to one count of third-degree theft from the person. At the time of the plea, she implicated Harris and agreed to testify at his trial. She subsequently signed a consent-to-search form for her cell phone, which had been seized at the time of her arrest. The search revealed six photographs of Harris holding a sawed-off shotgun that the State contends is the same one used during the robbery.
The State moved for an order allowing the use of the photographs at Harris's trial, despite the fact that they constituted evidence of other crimes or wrongs under N.J.R.E. 404(b). Harris opposed the motion. The trial judge held an evidentiary hearing on the motion. See N.J.R.E. 104.
Watson testified that she had received the photographs attached to an email from Harris on May 26, 2010, nineteen days before the robbery. She maintained that they were in substantially the same form as they had been when she received them. Watson did not know when the photographs had been taken, although she thought they had been taken in May. She did not know who took them.
Watson also testified that, other than the pictures, she had never seen Harris with a gun until the night of the robbery. She denied knowing that Harris had a gun with him that night until he took the shotgun out and pointed it at the victim. Watson did not testify that the shotgun in the ...