STATE OF NEW JERSEY v. DAMON WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6074-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMON WILLIAMS, a/k/a

DAMON BAILEY,

Defendant-Appellant.

__________________________________

December 6, 2011

 

Submitted September 28, 2011 - Decided

 

Before Judges Waugh and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-08-2651.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Damon Williams appeals from his conviction on one count of second-degree robbery, contrary to N.J.S.A. 2C:15-1, as well as the resulting sentence of incarceration for an extended term of fourteen years, eighty-five percent to be served without parole pursuant to N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial.

I.

We discern the following facts and procedural history from the record on appeal.

On July 12, 2007, a black male entered a Commerce Bank1 branch in Camden and dropped an envelope in front of Patrice Sloan-El, one of the bank's tellers. A hand-written note on the envelope read:

NO DYE PACKS. NO SILENT ALARM. NO HEROES. GIVE UP ALL THE BIG BILLS. THIS IS NOT A JOKE. GIVE ME THE MONEY AND THERE WILL BE NO TROUBLE. THANK YOU.

 

Sloan-El complied and the man left the bank with approximately $5000.

When asked by the police to describe the man, Sloan-El told them that he was "a dark-skinned black male," wearing an old hat with a logo, a "windbreaker, [long-sleeved] jacket[,] and black pants." She described him as being between forty and fifty years old, approximately "five-foot-seven [or] five-foot-eight" in height, and of a "thin build." Although the man did not have a beard, Sloan-El also described him as not being "clean shaved at all," "scruffy," with "salt-and-pepper facial hair."

David Williams was approaching the bank when he noticed that money had fallen out of the pocket of a man riding away from the bank on a bicycle. He yelled: "Hey, you dropped your money." The man looked back, but continued to ride away. David Williams picked up the money, approximately $1800, and subsequently returned it to the bank. He described the man to police as an "African American," wearing a dark-colored hat and "a red and black jacket." David Williams told the police the man was about forty years old.

During their investigation, the police were able to lift a latent fingerprint from the envelope the perpetrator gave to Sloan-El. Following analysis, it was determined that the print belonged to Damon Bailey, an alias used by Williams.2 Investigator William Townsend obtained a file photograph of Williams and compared it to the photographs from the bank's surveillance camera, concluding that the man in the bank photographs was Williams.

Williams was arrested on July 16, 2007. The police took a new photograph of him for use in a photo array. Williams was twenty-eight at the time of his arrest. He was also six feet tall. He testified at trial that he weighed approximately 200 pounds in July 2007.

Officer Rafael Perez conducted a photo array with Sloan-El. She viewed eight photographs separately. According to Perez, she stated that photo five "resembled the suspect," but was not certain. Although the photograph indicated was the photograph of Williams, Perez recorded that Sloan-El did not make an identification because she did not make a positive identification.

Williams was indicted on August 15, 2007. He was tried before a jury over five days in March 2009 and convicted. Williams conceded at sentencing that he was eligible for sentencing as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The judge imposed the sentence described above. This appeal followed.

II.

On appeal, Williams raises the following issues:

POINT I: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF THE STATE'S IDENTIFICATION EVIDENCE MADE FROM SURVEILLANCE PHOTOGRAPHS AND THE EXCLUSION OF DEFENSE IDENTIFICATION EVIDENCE MADE FROM THE SAME SURVEILLANCE PHOTOGRAPHS.

 

A. THE ADMISSION OF INVESTIGATOR TOWNSEND'S TESTIMONY IDENTIFYING THE DEFENDANT AS THE PERPETRATOR FROM SURVEILLANCE PHOTOGRAPHS WAS ERRONEOUS AND HIGHLY PREJUDICIAL.

 

B. THE EXCLUSION OF DAMON WILLIAMS'S TESTIMONY IDENTIFYING HIS FATHER AS THE PERPETRATOR FROM SURVEILLANCE PHOTOGRAPHS WAS ERRONEOUS AND HIGHLY PREJUDICIAL.

 

 

POINT II: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE WITHOUT SHOWING THAT THE IDENTIFICATION WAS RELIABLE (Not Raised Below).

 

A. SLOAN-EL'S IDENTIFICATION SHOULD HAVE BEEN EXCLUDED.

 

B. TOWNSEND'S IDENTIFICATION SHOULD HAVE BEEN EXCLUDED.

 

POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S PREJUDICIAL AND ERRONEOUS INSTRUCTION ON THE LAW OF IDENTIFICATION (Not Raised Below).

 

POINT IV: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF LEGAL CONCLUSIONS (Not Raised Below).

 

POINT V: THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION AS WELL AS HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE IMPROPER ADMISSION HEARSAY EVIDENCE (Partially Raised Below).

POINT VI: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF EXPERT OPINIONS BY A LAY WITNESS (Not Raised Below).

 

POINT VII: THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL ON THE CHARGE OF ROBBERY SHOULD HAVE BEEN GRANTED.

 

POINT VIII: THE DEFENDANT'S SENTENCE IS EXCESSIVE.

 

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

 

B. THE TRIAL COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

 

We begin our analysis with a discussion of the issue of identification, as to which Williams raises several points on appeal.

There were two categories of evidence linking Williams to the crime: (1) testimony that his fingerprint was on the envelope put before the teller and (2) testimony identifying him as the person who was in the bank, standing in front of the teller with the note, on the day of the crime. As noted, Williams was arrested and charged with the crime at issue because his fingerprint was found on the envelope containing the instructions to the teller. That fact presented very strong evidence of guilt.

The evidence identifying Williams as the man who stood before the teller in the bank was not as strong. Williams' personal characteristics did not entirely match the description given to the police by the two eyewitnesses. He was taller, heavier, and younger than the person described by Sloan-El. He was younger than the age given by David Williams.

Four days after the crime was committed, Sloan-El was unable to identify Williams in the photo array, although she stated that his picture "resembled the suspect." At trial, Sloan-El was asked whether she saw anyone in the courtroom who "resembles who robbed you." She identified Williams as that person. She also identified Williams as the person shown in the picture that she thought "resembled" the criminal. Nevertheless, she did not categorically identify Williams as the man in the bank. David Williams testified at trial that he was not able to identify the person he saw in front of the bank.

Over the objection of defense counsel, the trial judge permitted Townsend to testify that Williams was the person shown in the bank photographs.3 Although he was not offered or qualified as an expert witness, Townsend gave the following explanation for his lay opinion:

The cheek bones, if you take a look at Mr. [Williams'] cheek bones, they're consistent with the image there. Also, the hard features of his nose, his complexion. The fact that he's not wearing gloves is also consistent with the fingerprint being left behind. His complexion, his build, his height.

 

Consequently, the State was permitted to offer a definitive identification of Williams as the man in the bank by someone who was neither an eyewitness nor an expert in photographic identification.

When Williams testified at trial, he denied being at the bank on the day of the crime. When his attorney asked him whether he had "any personal knowledge of who committed the crime," the following colloquy took place:

THE COURT: I'm going to send the jury out. I'm going to conduct a 104 hearing. Don't reach any conclusions yet.

 

(Jury dismissed.)

 

THE COURT: Continue on with that line of questioning.

 

[DEFENSE COUNSEL]: Q. Mr. Williams, you didn't see --

 

THE COURT: I know the State's going to object to the next question, so let's find out how he obtained personal knowledge.

 

Were you there in the bank on the day in question?

 

[DEFENDANT]: No, but I can look at the video footage and tell by the description who it is.

THE COURT: That objection would be then sustained because you did not see the commission of the offense, correct?

 

[DEFENDANT]: No, I didn't see --

 

THE COURT: You just think it looks like somebody else.

 

[DEFENDANT]: I've seen --

 

THE COURT: Answer the question. You think it looks like somebody else, right?

 

[DEFENDANT]: No, I know it looks like somebody else.

 

THE COURT: Sir, that's not personal knowledge. You're just -- that's speculation. It looks like somebody else, but you don't know who that person is, nor did you see the commission of the offense.

 

[DEFENDANT]: Neither did the detective.

 

[DEFENSE COUNSEL]: Judge, if I may, the detective looked at the video and testified before this jury that the picture in the bank was this person.

 

THE COURT: He said it resembled him, right?

 

[DEFENDANT]: No, he said it was me.

 

THE COURT: Okay.

 

[DEFENSE COUNSEL]: He said it was him. This man, I think, has the right to go in and . . . say I've looked at that and I know who that is.

 

THE COURT: He has no personal knowledge who committed the offense.

 

[DEFENSE COUNSEL]: That's correct, Judge, but the detective --

 

THE COURT: He just answered yes, I do have personal knowledge who committed the offense.

 

[DEFENSE COUNSEL]: Based on his view of the pictures.

 

[DEFENDANT]: Yeah.

 

[DEFENSE COUNSEL]: Judge, the detective had no more personal knowledge --

 

[DEFENDANT]: Than I did.

 

[DEFENSE COUNSEL]: -- than Mr. Williams and he was asked is that the guy who committed the offense and that was permitted by your Honor.

 

THE COURT: I'm not going to allow it. It calls for speculation. You always have the right to argue that it's not him. That's not an issue. We dealt with this issue previously.

 

I'm going to strike the last answer. Any other questions you want to ask him while he's on the stand to further complete the record?

 

So, his answer would be, then, I recognize the individual from the photograph.

 

Who do you recognize that individual to be? Is that the next question?

 

[DEFENSE COUNSEL]: Yes.

 

THE COURT: Okay. Who is it?

 

[DEFENDANT]: It's my father.

 

THE COURT: Okay. Anything else?

 

[DEFENSE COUNSEL]: No.

 

THE COURT: Is his father somewhere in the vicinity?

 

[DEFENDANT]: We have pictures of my father.

 

THE COURT: But he's not here, right?

 

[DEFENDANT]: He could have been here if they would have asked me.

 

THE COURT: Any other questions you would like to ask to make the record more complete?

 

[DEFENSE COUNSEL]: No, Judge.

 

THE COURT: So, the answer was I don't have personal knowledge who committed the offense. It just look[s] like someone else. The jury, as I said before, will make the determination, okay?

 

Anything else from the State?

 

[PROSECUTOR]: Judge, I'd ask that the yes be stricken.

 

THE COURT: It will be stricken.

 

[PROSECUTOR]: And I'd ask that you tell the jury that as a result of a hearing outside of their presence, it was determined that the answer to that question was no.

 

THE COURT: I'm going to tell them to just strike the answer. That's the fair way to deal with it.

 

[PROSECUTOR]: I would argue for some sort of curative instruction because now they have it in their mind.

 

[DEFENSE COUNSEL]: It's going to be struck, Judge. That's the --

 

THE COURT: It's going to be stricken. The bottom line is going to be the identification of whether or not he's the perpetrator is going to be left solely up to them, okay?

 

Williams argues that the judge erred in allowing Townsend to testify that Williams was the person in the bank photographs while prohibiting him from testifying that the person in those photographs was his own father. The State argues that both decisions by the trial judge were correct and that any error was harmless.

A.

In permitting Townsend to identify Williams as the man in the bank photographs, the trial judge relied on State v. Loftin, 287 N.J. Super. 76, 99-100 (App. Div.), certif. denied, 144 N.J. 75 (1996), and N.J.R.E. 701. In Loftin, we rejected the defendant's argument that one of the investigating police officers impermissibly usurped the jury's function by testifying at trial that the person shown in a composite sketch was the defendant. In doing so, we relied on the Law Division's opinion in State v. Carbone, 180 N.J. Super. 95, 96-98, 100 (Law Div. 1981). There was, however, minimal discussion of the issue of the identifications by investigating police officers in Loftin.

In Carbone, the judge was called upon to determine, prior to trial, whether several witnesses, who had known the defendant personally at the time the crimes were committed, should be permitted to testify at trial that the defendant was the person shown in video surveillance tapes involving several bank robberies. Although the tapes showed the perpetrator with a mustache and full beard, the defendant did not have a beard by the time he was arrested. In addition, the man in the video was wearing sunglasses, which made identification more difficult. The witnesses were prepared to testify that, at the time depicted in the videos, the defendant's appearance matched that of the person shown in the videos.

The judge in Carbone, supra, 180 N.J. Super. at 99, allowed the testimony, relying on several cases from other jurisdictions, particularly one from California:

A case more closely on point is People v. Perry, 60 Cal. App. 3d 608, 131 Cal. Rptr. 629 (D. Ct. App. 1976), which also involved lay opinion testimony of witnesses familiar with defendant that the individual depicted in a film of an alleged bank robber was in fact the defendant. The appellate court noted that

 

The witnesses each predicated their identification opinion upon their prior contacts with defendant, their awareness of his physical characteristics on the day of the robbery, and their perception of the film taken of the events. Evidence was introduced that defendant, prior to trial, altered his appearance by shaving his mustache. The witnesses were able to apply their knowledge of his prior appearance to the subject in the film. Such perception and knowledge was not available directly to the jury. The opinions of the witnesses were sufficiently based upon personal knowledge to permit their introduction; the question of the degree of knowledge goes to the weight rather than to the admissibility of the opinion.

 

[60 Cal. App. 3d at 613, 131 Cal. Rptr. at 632].

 

The court concluded that the testimony was admissible under Cal. Evid. Code, 800, which is virtually identical to federal Evid. R. 701 and our own Evid. R. 56.

 

The facts in Carbone, however, were significantly different from those in this case. Here, there was no evidence that Williams' appearance had changed significantly between the date of the crime and his arrest, other than that he may have shaved. In addition, Townsend was not familiar with Williams' appearance, other than through his role in the investigation. On the other hand, of the two eyewitnesses who had actually seen the perpetrator, one could not identify the perpetrator and the other was able to say only that Williams "resembled" the man in the bank. More significantly, there were differences between Williams' actual appearance and the descriptions given by the eyewitnesses, differences with respect to age, height, and build. Sloan-El had also described the man's stubble as being salt and pepper in color.

N.J.R.E. 701 provides:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

 

In State v. McLean, 205 N.J. 438, 459 (2011) (quoting Brindley v. Firemen's Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)), the Supreme Court held that "[t]he Rule does not permit a witness to offer a lay opinion on a matter . . . [']as to which the jury is as competent as he to form a conclusion[.]'"

Here, because Townsend was offered as a lay witness only and had no enhanced knowledge of Williams' appearance, he was testifying about something that the jury was "as competent as" he was to form a conclusion, that is, whether Williams was the man in the bank surveillance photographs. Indeed, the jury spent most of the five trial days in Williams' presence. In addition, Townsend was permitted to justify his opinion in terms reminiscent of expert testimony regarding comparisons of facial characteristics such as cheek-bone shapes and nasal features.

Finally, Townsend gave an opinion on an issue that should have been left for the jury to decide because it bordered on an opinion as to guilt. As the Supreme Court observed with respect to expert witnesses,

experts may not intrude on the province of the jury by offering, in the guise of opinions, views on the meaning of facts that the jury is fully able to sort out without expert assistance and that expert opinions may not be used to express a view on the ultimate question of guilt or innocence.

 

[McLean, supra, 205 N.J. at 461 (citing State v. Reeds, 197 N.J. 280, 300 (2009); State v. Odom, 116 N.J. 65, 80 (1989)).]

 

We believe the same principles apply to the opinions of lay witnesses. The trial judge further compounded the problem by charging the jury that Townsend had "testified that based on his evaluation of the surveillance video and stills, that the defendant, in his opinion, was the one who committed the crime."4

We conclude that the trial judge erred in permitting Townsend's identification testimony because it was not authorized by N.J.R.E. 701 and because it intruded on the province of the jury, especially as re-emphasized by the judge's clearly erroneous charge. To the extent Loftin would permit a different result, we decline to follow it.

B.

We now address the trial judge's decision to preclude evidence of third-party guilt. We review such a decision for abuse of discretion. State v. Koedatich, 112 N.J. 225, 300 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

"Courts must provide criminal defendants with a 'meaningful opportunity to present a complete defense.'" State v. Cotto, 182 N.J. 316, 332 (2005) (quoting State v. Garron, 177 N.J. 147, 168 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). In that regard, a defendant has a constitutional right to present evidence tending to show that a third party committed the crime of which the defendant is accused. State v. Timmendequas, 161 N.J. 515, 620 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

The Supreme Court articulated the standard for admission of such evidence as one requiring that it be capable of creating a reasonable doubt with respect to the State's case.

A defendant of course may seek to prove that another agency produced the death with which he is charged. It would seem in principle to be sufficient if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case. . . . We think it not enough to prove some hostile event and leave its connection with the case to mere conjecture. Somewhere in the total circumstances there must be some thread capable of inducing reasonable men to regard the event as bearing upon the State's case. The question of relevancy ultimately rests in a sound exercise of discretion.

 

[State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960).]

 

The Court re-affirmed that standard in Koedatich, supra, 112 N.J. at 300, adding that

[t]he issue of whether the trial court abused its discretion in excluding evidence of third-party guilt is a particularly fact-sensitive one. In cases in which courts have held that the evidence was improperly excluded, some link was demonstrated between the third party and the victim or crime. As we stated in State v. Sturdivant, supra, 31 N.J. at 179, in the total circumstances there was "some thread capable of inducing reasonable men to regard the event as bearing upon the State's case."

 

Even if there is no evidence linking another specific suspect to the crime, "courts have recognized that evidence that tends to create reasonable doubt that someone else, generically, rather than defendant, committed the offense, is admissible." State v. Loftin, 146 N.J. 295, 345 (1996) (citing State v. Jorgensen, 241 N.J. Super. 345, 351 (App. Div.), certif. denied, 122 N.J. 386 (1990)). Where there is evidence of the guilt of a specific third party, "[t]he evidence, in order to be admissible, need not establish a probability of a third-party['s] guilt. There need only be proof capable of raising a reasonable doubt on the issue of defendant's guilt." State v. Millett, 272 N.J. Super. 68, 100 (App. Div. 1994) (citations omitted).

Williams sought to offer testimony that the man in the bank photographs was his father.5 The judge appropriately started to hold a Rule 104 hearing outside the presence of the jury. However, he abruptly cut the process short before Williams was able to make a complete offer of proof, concluding that such testimony would be "speculative." The judge should have taken the proposed testimony in its entirety, and then made a ruling.

The record reflects that, although Williams' father was not present at the trial, defense counsel had pictures of the father, which presumably would have been authenticated by Williams' own testimony. Williams, like the witnesses in Carbone, was competent to identify his father in photographs because of his familiarity with his father's appearance.

Williams' assertion that the man in the bank photographs was his father offered a plausible explanation for (1) the fact that the envelope given to Sloan-El had Williams' fingerprint on it, (2) the fact that the man in the bank photographs resembled Williams, and (3) the fact that the eyewitnesses described the perpetrator as older, shorter, and slimmer than Williams. Given the facts of this case, we are satisfied that the evidence Williams proposed to offer in his defense was sufficiently plausible to satisfy the requirements for offering evidence of third-party guilt outlined above. It had "a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." Sturdivant, supra, 31 N.J. at 179. Based upon the record before us, the trial judge erred in precluding the proffered testimony.

C.

Based upon our determination that the judge erred in allowing Townsend to identify Williams as the man in the bank photographs and in precluding Williams from offering evidence of third-party guilt, we reverse the conviction and remand for a new trial.

III.

We need not discuss the remaining issues raised by Williams in detail.

We suggest that the judge assigned to conduct the new trial consult with counsel on how to refer to the criminal act at issue during the testimony without the constant use of the terms "robber" or "robbery" found in the transcript of the first trial. The crime was either a robbery or a theft, depending upon whether the jury makes a finding of the required elements of robbery set forth in N.J.S.A. 2C:15-1 (a)(1)(2), or (3). It may not be possible to preclude all testimony characterizing it as a robbery, but the issue should receive consideration and the jury should be given clear instructions at the start of the trial on the difference between common parlance and the legal definition of robbery.

We also suggest that careful consideration be given to whether Townsend's testimony concerning the handwriting on the note can be admitted as lay or expert testimony at the retrial, with attention to the danger of attempting to bolster a police officer's non-expert testimony by reference to years of training. McClean, supra, 205 N.J. at 461-62.

Reversed.

 

1 Commerce Bank is now known as TD Bank, N.A.

2 After Williams was arrested and fingerprinted, the police verified that one of his fingerprints matched the latent print from the envelope.

3 The judge gave the jury an instruction about lay witnesses, and also instructed the jurors that they were not bound by Townsend's testimony.

4 There was no objection to that aspect of the charge.

5 Although not entirely clear from the record, we assume that Williams did not give the State notice that he would offer evidence of third-party guilt involving his father. See Cotto, supra, 182 N.J. at 334. However, the State did not object on that basis during the trial, and has not raised the issue on appeal. It was not articulated as a basis for the judge's decision to preclude the evidence.