NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Humberto Nieves stands indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count one), second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two), and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). He filed a motion in limine and requested an N.J.R.E. 104 hearing prior to trial with regard to three videos from three different sources purporting to portray his interaction with and alleged shooting of the victim, Jean Sanchez, killed during the early morning hours of December 25, 2009. Defendant also sought to bar admission of a composite video compiled from the three challenged videos by the State's expert, Eric Wagg. With the exception of one video, defendant's application was granted. On January 11, 2013, the Supreme Court remanded the matter for us to consider the interlocutory appeal by the State on the merits. After consideration of the record and the written submission of the parties, we affirm.

We briefly summarize the relevant facts developed during the hearing. Ernest Carpio, a Newark resident, called 9-1-1 after hearing gunshots at approximately 3:40 a.m. on December 25, 2009. When he looked out the window, he saw a man lying on the ground by railroad tracks near his home. When an officer from the Essex County Prosecutor's Office Crime Scene Technical Services Unit met with Carpio, he reviewed Carpio's surveillance system, copying to a disc footage depicting two people walking at a distance near the tracks. On the video, a light flashes after one individual shoots the other, who drops to the ground. The other person approaches, shoots a second time, and walks away. The time stamp on the footage was an hour off because it had not been adjusted when daylight savings time ended. The images on the film are not identifiable, basically only "stick figures."

Detectives also met with Raphael Concepcion, the owner of a restaurant called El Bachatipico, who informed them the establishment's four exterior cameras were working during the morning of the incident. Newark Police Detective Peter Chirico viewed footage, taken during the relevant time frame, provided by the owner on a thumb drive. He was unaware of how that footage was extracted from the system or by whom, or if any changes were made to it. In any event, no identification could be made from that film either.

A third set of recordings were obtained from the Player's Lounge, a bar also located near the crime scene. That analog tape clearly depicted the victim and defendant talking in the interior of the bar; however, it was not time stamped.

In order to create the composite film also at issue, four items were delivered to Wagg: (1) nine hours of footage from the VHS tape showing the interior of the Player's Club (video A); (2) a DVD containing digitized portions of the VHS tape created by the detective's office; (3) a thumb drive containing approximately one hour of footage taken from El Bachatipico restaurant cameras showing the exterior of the Player's Club from across the street (video B); and (4) the disc provided by Carpio of another exterior location behind the bar, Greenwood Lake Street, lasting approximately thirty-seven minutes (video C).

Wagg was unable to view the digitized DVD portions of the VHS tape (No. 2). He ended up digitizing the VHS tape himself, converting it from analog to digital format so that he could use his computer software on the project. The only one of the sources original to the actual video footage was the tape of the interior of the Player's Club. In compiling the video, Wagg used the VHS tape, the DVD, and the thumb drive. These films were taken from a total of eight different cameras — three for video A, four for video B, and one for video C. He did nothing to enhance the images on the composite except to adjust the contrast around the figures and place a brightened bubble around them to make them easier to track. Wagg was uncertain about the number of cuts he made in order to create the compilation.

The Grand Jury who indicted defendant viewed the composite video. The opening scene shows defendant and the victim inside the Player's Club early Christmas morning, switching focus to the exterior of the bar where it is dark outside and there is snow on the ground. An unidentifiable figure is seen backing up a Toyota owned by defendant's mother in front of the bar from an adjacent driveway. The suspect then exits the car and dons a dungaree jacket, which the State theorizes held the murder weapon. The suspect and another unidentifiable figure, allegedly the victim, are then seen outside walking together. The suspect was identified by his jacket and, according to witnesses, the approximate time when the victim went outside and spoke to him. The two walked east on Verona towards the intersection, separated briefly, and then walked north on Summer Avenue.

The composite then switches to footage taken from the Greenwood Lake Street residence which shows two unidentifiable figures, allegedly defendant and the victim, walking together. The victim is then seen waiting for the suspect near a utility box right by the railroad tracks. Several shots are fired into the victim from directly behind, as seen by muzzle flashes. The shooter then walks away, returning to the club, entering for a second, where he was met by a security guard. The suspect turns around and goes back to the Toyota; when he exits, he is no longer wearing the jacket.

Wagg had worked as a forensic examiner for six years with the New Jersey Division of Criminal Justice and its Regional Community Science Laboratory. He performed "digital examinations both in computer forensics and video forensics," and "export[ed] video and clarif[ied] it." He was certified as a video examiner by the Federal Bureau of Investigation (FBI) in their field audio/video program as a result of one hundred twenty hours of training, and was also certified as a computer forensics analyst by the FBI's computer analysis response team. This was the first composite video he had ever created and the first time he had testified in court.

Wagg explained that the Newark Police requested he edit the videos provided to create a composite depicting "a sequential series of events so that it could be more clearly identified as to the way things played out." Chirico suggested that Wagg should look for an altercation between two individuals in the Player's Lounge, where as a result someone would be escorted outside.

Wagg put together the composite based on the time stamps he was able to extract, and his own observations of pedestrian and vehicular traffic flow. He admitted that the computer software by itself was incapable of synchronizing the three videos; therefore, he used his "intuition" and "judgment in making the call with regard to putting this [compiled] tape together."

Defendant's expert, Thomas Owen, had been certified by the American College of Forensic Examiners in 1996 in video authenticity and had testified over three hundred times in the United States and abroad, including for the prosecution in a Connecticut murder trial. He has worked for the State Department. Since 1969 Owen participated in at least one hundred seminars, conferences, and workshops involving recorded media, and published over one hundred articles in forensic, videography, and audio engineering magazines.

Owen testified that the compilation strayed from standard FBI procedure, which does not "authenticate" or "proffer" a copy of anything "unless they have the original." The copies in this case did not have a readable time code because of distortion due to improper transfer. Furthermore, in his professional opinion, the videos could not be authentically pieced together without the corresponding time codes. Owen did not believe, contrary to Wagg's claim, that the composite was a chronological depiction of a sequence of events, or even that any such chronology could be accurately put together. He also believed that the quality and resolution of the video was too poor for practical use and that the issue of visibility was to some extent created by the compilation itself being pieced together from copies.

Owen testified based on his review of the compilation. He did not review the video sources, only a copy of Wagg's report. From his analysis, he opined Wagg made approximately nineteen cuts.

In rendering his decision admitting only the tape from the interior of the Player's Lounge, the trial judge first observed that Owen's qualifications "far exceeded" those of Wagg. The lack of authentication of the materials the State proposed to present when added to the subjective basis for Wagg's creation of the composite, led him to conclude that the evidence was inadmissible. As he said, after reviewing the proffered individual and composite tapes, "identifications cannot be established as to time, place, date, individuals and activities." The judge opined that they lacked probative value, or even met the fundamental requirements of admissibility under N.J.R.E. 901. He therefore granted the defense motion to bar admission of the tapes.

On appeal, the State raises the following points of error:

I.

We review the trial court's evidentiary findings for abuse of discretion. State v. Harris, 209 N.J. 431, 439 (2012). Such rulings are not overturned unless a manifest injustice has occurred. State v. J.A.C., 210 N.J. 281, 295 (2012). However, "to the extent [a] defendant's argument. . . raises a question of law,. . . review is de novo and plenary." State v. J.D., 211 N.J. 344, 354 (2012).

An electronic recording and its duplicates "qualif[y] as writings" under N.J.R.E. 801(e) but "must be properly authenticated" before being admitted. State v. Wilson, 135 N.J. 4, 17 (1994). Under N.J.R.E. 901, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims."

According to Wilson,

Wilson opined that in modern times, the authenticity of the video could be established by a witness who could attest to the accuracy of its contents, rather than being dependent on the manner in which the video is created. Id. at 15. This theory is known as the "pictorial testimony" theory. See 116 A.L.R. 5th 373.

Nevertheless, under the alternative, the "silent witness" theory, ibid., through which the State sought admission of the tapes based on Wagg's testimony, "[t]he authentication of a film which purports to portray an actual criminal event taking place would not require the same type of authentication as in Balian," State v. Bunting, 187 N.J.Super. 506, 509 (App. Div.), certif. denied, 95 N.J. 181 (1983). "[F]ilm evidence which is introduced as independent evidence of the crime, should be admitted without corroborative testimony by an eyewitness if the film is otherwise authenticated." Ibid. In Bunting, surveillance video of a robbery was admitted without any independent eyewitness corroboration. Ibid. However, the State introduced testimony concerning the installation, operation, and view of the camera, its "periodic testing," film removal, chain of custody, and method of activation during the robbery. Id. at 509-510. The store clerk had unobtrusively triggered the camera by moving a money clip in the cash register. Id. at 508. For these reasons, the videotape was found to be adequately authenticated and reliable.

Under either theory, "authentication must establish that the video tape is an accurate reproduction of that which it purports to demonstrate." Suanez v. Egeland, 330 N.J.Super. 190, 195 (App. Div. 2000). Generally, "sufficient circumstantial indicia of reliability" may serve "to establish a prima facie showing of authenti[]cation." State v. Mays, 321 N.J.Super. 619, 629 (App. Div.), certif. denied, 162 N.J. 132 (1999).

The State contends that "New Jersey courts have routinely held demonstrative and composite videos admissible in evidence" citing Wilson and State v. Loftin, 287 N.J.Super. 76 (App. Div.), certif. denied, 144 N.J. 175 (1996), and that relevant precedent establishes the admissibility of the videos in question. But the facts of Wilson are distinguishable from those of this case. Three days after the shooting of a store clerk, detectives filmed the outside and inside of the store from the perspective of the perpetrator as he approached and entered. Wilson, supra, 135 N.J. at 10. Once inside, the video depicted expressionless and motionless people standing in the positions of the various store employees based on the descriptions given by a clerk. Id. at 10-11. The Court affirmed the decision of the Appellate Division upholding the guilty verdict, but noted that the video was not properly authenticated because no corroborating witness testified although one was available. Id. at 19, 22. The admission was found to be harmless error since the details depicted in the footage were undisputed. Id. at 21.

In Loftin, the defendant was accused of murdering a chambermaid in Harrah's Casino and removing her key caddy. Loftin, supra, 287 N.J. Super. at 85-86. A bellhop testified that defendant was the man in a grayish-blue suit and red tie who had been following him that day every time he brought luggage up to a room. Id. at 86. Defendant challenged the admission of a composite video showing clips of a man fitting that description at various locations in the hotel at the relevant time, which was ascertained through other reliable evidence. Id. at 87, 99. Accordingly, the Loftin court found the authenticity argument meritless. Id. at 99. The police created a composite sketch of the suspect using the bellhop's description and looked for an individual who matched in appearance in recordings during the relevant twenty-four-hour time period. Ibid. Other than isolating the suspect's appearance in the videos and arranging the clips in chronological order, the tapes were not altered in any other way. Ibid.

Here, unlike in Loftin, there are no corroborating witnesses as to the identity of the individuals purported to be the suspect and victim in videos B and C. The personal, unique characteristics of the specific individuals in video C are not present as they were in the clips of the Loftin defendant. It is undisputed that the State did not present any witnesses whose testimony could authenticate the events which occurred in videos B and C. This means that the pictorial method of authenticating is unavailable for videos B and C.

Furthermore, the composite video in Loftin came from one surveillance system which accurately shows the time. Harrah's video surveillance department shift supervisor who was in charge of storing the tapes, set aside the original videotapes recorded during the relevant time period with clear time stamps. Ibid. In contrast, the chronological accuracy of the composite here depends on Wagg's subjective observations. Videos B and C do not have accurate time stamps or other indicators of reliability. They, as well as the composite video, cannot serve as silent witnesses of the actual events.

We therefore find that the court did not abuse its discretion in excluding the two individual films in which the persons depicted were unclear, and which were neither authenticated nor time stamped, as well as the composite film. The composite was created from copies of films taken from several cameras, of which most were not correctly time-stamped, and compiled based on an expert's best guess as to chronology.

As N.J.R.E. 901 so plainly states, authentication and identification are conditions precedent to the admissibility of evidence. The films collected by the authorities, and put together by Wagg in composite form, satisfied neither. A jury watching a composite, or watching the individual films, would be asked to independently assess the films without sufficient information to make such a judgment. They would be shown what amounts to a movie of an argument between defendant and the victim, which the State claims ultimately led to the victim's shooting. Given the dramatic effect of the composite, the potential for prejudice is simply too great in the absence of real and meaningful authentication.

Without an accurate timeline, no authentication is possible. Without specifically eliciting a chain of custody since originals were not taken, no authentication is possible. Without reliable identifications as to "time, place, date, individuals and activities," authentication is simply impossible.

Affirmed.