R. v. Berhe, 2013 ONCJ 368

COURT FILE No. Toronto Citation: R. v. Berhe , 2013 ONCJ 368 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. T. Dimuzio ) for the Crown ) — AND — ) ) YOHANNES BERHE ) ) Mr. M. Kerbel ) for the Accused ) ) Heard: June 18, 19, 2013 ) ) NAKATSURU J.: [ 1 ] The accused, Mr. Yohannes Berhe, is charged that on July 7, 2012, he committed the offences of indecent act in public and mischief to private property by masturbating on a Toronto subway car.

Identity is a key issue at the trial. [ 2 ] During the course of the trial, a voir dire regarding the admissibility of lay recognition opinion evidence was conducted. The Crown seeks to lead the opinions of two police officers to the effect they recognized the suspect in a photograph taken by the complainant while on the subway train as the accused before the court. [ 3 ] I ruled that the evidence was not admissible. The following are the reasons explaining that decision.

OVERVIEW OF THE EVIDENCE [ 4 ] In the late evening hours of July 7, 2012, a young woman and her friends were taking the subway home from a music festival in the Beaches area of Toronto. While heading westbound on the subway, she observed a man standing with a black briefcase stuffed with newspapers. He was pretending to read a newspaper. As the subway train travelled along the westbound line, the complainant observed the man furtively masturbating while at the same time using the newspaper as a shield. He stopped when he saw her looking in his direction.

The complainant described the man as brown skinned, about 6 feet tall with a black beard, perhaps in his forties, wearing black dress pants, shoes, black and blue shirt not tucked in and a black baseball cap on his head. Before she got off at her station, she discretely took a photograph of the man. The next day, she emailed this photograph to the Toronto Transit Commission (the “TTC”) complaining about the incident. [ 5 ] This photograph taken by the complainant was entered as exhibit #1 at the trial.

Depicted in this photograph is a man leaning with his back against the doors of the subway car with a newspaper covering the front of his body. There appears to be a briefcase on the floor beside him. The man’s face is visible but is partially obscured by a metal pole and a partition by the subway car door. The man has a black beard and his hairline appears covered by a cap. The subway car is well lit and the image, while not sharp, is clear enough to make out some facial features.

The photograph is taken from a few short meters away. [ 6 ] When asked at trial, the complainant could not identify anyone in court as the person she observed masturbating on the subway train on July 7, 2012. [ 7 ] On July 13, 2012, P.C. Blonde and P.C. DeOliveira received a call to attend Ossington subway station regarding an incident. When they arrived, they were told that a TTC employee was following the suspect. They jogged to catch up to the men who were now walking west bound on Bloor Street West. The TTC employee spotted the police officers and pointed to the accused, Mr.

Berhe, as the man they should investigate. The accused matched the description of the suspect put over the police radio: he had dark skin, a long beard, wore a baseball cap and a blue suit and carried a black briefcase and newspapers. He was detained and arrested. Both officers transported the accused to 14 Division where he was paraded and lodged in an interview room. P.C. DeOliveira had further dealings with Mr. Berhe as he needed to use the washroom and also had some complaints about chest pain.

Both police officers were able to identify the accused before the court as the individual they arrested on July 13, 2012. [ 8 ] Neither police officer had any prior dealings with the accused before July 13 th . Both officers were asked whether they recognized the man in the photograph marked as exhibit #1. They both testified that this man looked like the same man they arrested on July 13 th , Mr. Yohannes Berhe. [ 9 ] A photograph taken of the accused on July 13 th by the police when he was arrested, a “mug shot”, was admitted into

evidence as exhibit #3. It is a black and white photograph. It is a full frontal photograph of the face of the accused. It is clear and takenfrom close range. THE LAW ON THE ADMISSIBILITY OF RECOGNITION OPINION EVIDENCE [10] It is a well-established principle that a lay person can express an opinion about the identity of a person. Further, it issettled law that a lay person can give an opinion to the effect that he or she recognizes the image of a person seen in a relevantphotograph or video based upon a prior connection or an acquaintance with that person.

However, before such an opinion is receivable,the trial judge is tasked with a gatekeeping function to ensure only properly admissible evidence is heard by the trier of fact. [11] It is important to keep distinct the threshold test for admissibility and the ultimate weight to be attributed to the opinionevidence once admitted. Similar factors may inform both but the two are legally distinct.

Once satisfied by the evidence on the voir direthat the opinion is admissible, the ultimate weight to be given to the opinion will be up to the trier of fact. [12] A voir dire regarding the admissibility of the opinion is necessary: see R. v. Leaney, (SCC), [1989] 2S.C.R. 393; R. v. Berhe (2012), 2012 ONCA 716 , 292 C.C.C. (3d) 456 (Ont. C.A.). At this voir dire, the circumstances of theprior acquaintance can be fully explored without concern that prejudicial evidence may be divulged before the trier of fact.

For instance,it is not uncommon that police officers who have had prior dealings with the accused are called by the Crown to give lay recognitionopinion evidence. The details of those dealings may raise prior discreditable conduct or criminal offences by the accused that ifpresented before the jury could lead to a mistrial application. If ruled admissible, the trial judge can place limits on the questioningregarding the admission of the circumstances under which the witnesses came into contact with the accused in order to minimize theprejudice: see R. v. Brown (2006), (ON CA), 215 C.C.C. (3d) 330 (Ont.

C.A.) at para. 36. In addition, if thefrailties regarding the testimony of these witnesses cannot be understood without the prejudicial evidence being examined, the trial judgeon the voir dire can also decide whether this evidence should be excluded on the basis that its prejudicial effect outweighs its probativevalue: see R. v. Brown, [1999] O.J.

No. 4865 (S.C.) affirmed, supra, at para. 38. [13] The substantive content of the test to be applied on the voir dire was stated by Blair J.A. in Berhe, supra, at paras. 20-21: At the voir dire, the judge may or may not conclude that the potential witness is sufficiently familiar with the person whose identity is inquestion to be in a better position than the trier of fact to assist in making the identification…Both of these benchmarks are wellestablished.

The “prior acquaintance” branch of the Leaney/Brown test enables the trial judge, on a voir dire, to sort out whether thepotential witness is sufficiently familiar with the person sought to be identified to have “some basis” for the opinion – or, “an articulatedbasis” as some have said – and the “better position” branch ensures that the evidence will only be admitted if it is helpful to the trier offact because the potential witness has some advantage that can shed light on the evidence in question. [14] As noted, both branches of the test must be met.

At the same time, the two aspects of the test are closely interrelated. Inassessing the evidence heard on the voir dire, I would suggest that the following analytical framework may prove to be of some use. [15] In my opinion, once the witness testifies to some form of prior acquaintance or connection with the accused, this part ofthe test is established. This is a bright line that is easy to understand and apply. If the witness has no prior personal familiarity with theaccused, any recognition opinion evidence is superfluous and a waste of time: see Leaney, supra, at para. 33.

However, any prioracquaintance, whether particularly meaningful or not, should suffice. The only other additional requirement is that the acquaintance orfamiliarity be a personal one, not something gained through third hand sources such as the media or through investigation.

Other thanthat, this threshold should not have any further quantitative or qualitative burden. [16] Some authorities have held that the prior acquaintance requirement must achieve a certain sufficiency based upon theconsideration of indicia such as the length of the prior relationship between the witness and the accused, the circumstances of the priorrelationship between the witness and the accused, and the recency of the contact between the witness and the accused prior to the eventwhere the witness recognizes the accused: see R. v. P.T.C., 2000 BCSC 342 , [2000] B.C.J.

No. 446 (S.C.) at paras. 66-67; R. v.Anderson, [2005] B.C.J. No. 305 (S.C.) at para. 25; R. v. Muncey, [2013] B.C.J. No 793 (S.C.). At the same time, these authorities findthat the second element of the test, “helpfulness”, to be a low threshold. [17] Respectfully, I am of the view that such an analysis is inverted. The focus should be on the question of whether theproffered opinion evidence will be of assistance to the trier in making the identification. This question must be answered contextuallyand on a case-by-case basis.

In the course of determining that question, the afore-mentioned factors may be useful. [18] I have come to this view because of the inherent difficulties in defining how much familiarity is enough familiarity for thepurpose of the voir dire. Conceptually, prior acquaintance has import only when it is measured against some other factor. Therefore,investing the test of prior acquaintance with ill-defined standards such as “sufficient”, “significant”, or “meaningful” is unhelpful.

Awitness who has a fleeting encounter with the accused may not be able to give admissible recognition opinion evidence but this is notbecause the acquaintance was “fleeting”. Rather, it is because an opinion about identity gained in such a circumstance is unlikely toassist the trier of fact. [19] An easily applicable test of prior acquaintance of any kind can screen out recognition opinion evidence of the type thatwas found to be inadmissible in Leaney, supra.[1] In this manner, this facet of the gatekeeping function can be readily and swiftlyaccomplished.

Under this branch of the test, it will be incumbent upon the party who seeks to introduce such evidence to have thewitness testify about the circumstances of the prior acquaintance. To this extent, this branch of the test serves a limited but valuablepurpose. [20] In my opinion, this analysis is consistent with the judgment in Berhe, supra. Blair J.A. in Berhe, supra, clearly did notenvision a high threshold when he referred to the prior acquaintance branch of the test as requiring “some basis” or “an articulated basis”.The language referred to by Blair J.A. comes from the cases of R. v.

Cuming (2001), (ON CA), 158 C.C.C. (3d) 433

(Ont. C.A.) at para. 21 and R. v. Brown, supra, at paras. 38-39. In Cuming four still photographs from the store security video cameracapturing the robbery in progress were enhanced. The officer-in-charge of the investigation identified the appellant from these enhancedstills. However, there was no evidence as to how this officer had a better opportunity to make a visual comparison between the accusedand the stills than the jury did.

There was no evidence that he knew the appellant other than through his investigation of the robbery andno particulars were given regarding the extent of his dealings with the appellant. The Court of Appeal concluded that unless there was“some basis” given for his recognition opinion evidence, it had no weight. In my view, if this officer had testified to any prior personaldealings with the appellant, this would have met the standard.

He would then have had some articulated basis on which the judge on thevoir dire could assess admissibility and the trier of fact could assess the ultimate weight of the officer’s opinion. [21] Furthermore, in Berhe, supra, Blair J.A. rejected the adoption of the dissent of Harradence J.A. in R. v. Leaney (1987),1987 ABCA 206 , 81 A.R. 247 (C.A.) where Harradence J.A. added another layer to the test requiring the recognition evidencewitness to have sufficient prior familiarity with the accused’s unique features to enable the witness to describe the accused’sidiosyncrasies as portrayed on the video.

Blair J.A. held that the present test was sufficiently flexible to permit the trial judge to performthe gatekeeping role on the voir dire. Again, this supports my view that the test of prior acquaintance should not be given undueemphasis. [22] That this being said, pivotally, it is not any and all prior acquaintance with the accused that will satisfy the second prongof the test. The witness must as a result of the prior acquaintance have an advantage or be in a better position to identify the person in thephoto or video than the trier of fact.

This is the key measure by which admissibility must be gauged. [23] The starting point is the fact that the trier of fact will be able to compare the accused before the court and the image ofthe suspect on the photo or video to determine whether it is the accused who committed the offence. The trier of fact may determineidentification solely on the basis of the photo or video: see R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197. The trier offact undertakes this task by simple comparison of the photo or video with the accused before the court.

Thus, in assessing whether thesecond branch of the test has been met, the witness in question must be able to offer the trier of fact some assistance beyond what thetrier can do through such a comparison. [24] It is in this regard that the factors mentioned in the authorities become relevant. The length and nature of the relationshipbetween the witness and the accused may be important. It can be presumed in most cases that a close and long relationship would givethe witness a greater ability to recognize a photo of the accused than a shorter and more distant one.

A parent of the accused is morelikely to have an advantage in recognizing the accused than a stranger to the accused. It is noteworthy to point out that the triers of factare essentially just that, strangers to the accused.

Someone who has known the accused closely for a long time is likely to be morefamiliar with traits such as subtle physical characteristics, idiosyncratic movement, posture, and facial expression than the trier of fact.On the other hand, depending on the case, a close and long relationship may not on its own put the witness in an advantageous positionas compared to that of the trier of fact depending on other relevant factors.

If the relationship was in the distant past and the appearanceof the accused had changed substantially by the relevant time when the offence was committed, then this witness’s opinion may not onlybe unhelpful but it could also be misleading. The trier may be overly persuaded by nature of the relationship without giving their ownvisual abilities in making a comparison sufficient credit. [25] Recency in time to the offence can be an important factor. This is so especially when the accused’s appearance from thetime of the offence to the trial has indeed changed.

Many personal characteristics such as hair style and facial hair are easy to alter. Otherpersonal characteristics, while more difficult, such as weight and build, can also change if the trial is delayed and these changes candramatically alter a person’s features. In such circumstances, a witness who has familiarity with the accused closer in time to the offencewould be in a superior position to the trier of fact in his or her ability to recognize and identify the suspect in the photo or video.

Thismay be so even when the length and nature of the witness’s relationship with the accused is not particularly significant. Witnesses suchas police officers may find themselves in this position. This factor has uniformly been accepted as important in deciding the issue ofadmissibility: see Brown, supra, at para. 39; R. v. John, 2010 ONSC 6085 , [2010] O.J. No. 4738 (S.C.). [26] The opportunity to observe the accused in the prior interaction may also be a significant consideration when therelationship with the accused is not close.

As previously mentioned, a witness who has had a “fleeting” or “momentary” acquaintancewith the accused on a prior occasion may be of no real assistance to the trier of fact who will have a greater opportunity to make acomparison in court. Furthermore, if the prior interaction was not one in which the witness could be expected to have made any notableobservations of the accused or to recall his appearance, then the witness may not be in any greater advantaged position than the trier offact.

It is easy to think of numerous personal, occupational, and commercial interactions, potential witnesses could have with an accusedas he or she goes through daily life. Some of those potential witnesses, such as a shopkeeper or a server at a coffee shop that an accusedfrequents regularly, may even have a long-term relationship with the accused.

However, given how limited their interactions are, thoughit may even be on a daily basis, it cannot simply be assumed that this prior relationship would put the potential witness in a betterposition to identify a suspect in a photo or video. [27] On the other hand, even a single “fleeting” interaction may put the witness in a better position than the trier of fact ifthere are other counterbalancing factors in play. For example, if the potential witness had a brief encounter with an accused that was amemorable one and the accused had a relatively unique characteristic such as in his gait, this may suffice.

If the suspect in the video isseen with a similar gait, this witness despite the apparent limitations in his or her prior observations could be in a better position to makean identification than the trier of fact. The latter’s ability to make a comparison would be limited to a visual observation of the accusedwho would be in a static position in the artificial and formal courtroom setting. [28] Finally, the form of the visually captured out-of-court depiction of the suspect may be an important consideration.

Awitness with a prior acquaintance with the accused may be in a better position than the trier of fact to recognize someone in a video thana still photograph. Such a witness may have had the opportunity to see the accused move and interact with others that a trier of factcannot in the courtroom environment. If the depiction of the suspect in the video makes this opportunity meaningful and important, thenthe witness’s opinion can offer help to the trier. Conversely, if there is only a still photograph of the suspect, then the witness’sadvantageous position may not have much tangible value.

The trier of fact could as readily make an identification based upon a stillphotograph and the accused before the court as the proffered witness. In such situations, there is a real danger that the witness is

effectively doing no more than the trier of fact. In other words, rather than using the witness’s prior knowledge and familiarity with theaccused in offering the recognition opinion, the witness is merely making a visual comparison between the photograph and the accusedbefore the court.

This danger is compounded by the fact that this mental process that is being used may not even be fully appreciated bythe witness. [29] Conversely, although a witness is largely making a comparison between the photograph and the appearance of theaccused before the court, if the circumstances of the prior acquaintance put the witness in close quarters with the accused, this may, inthe right case, make a difference.

If the witness had an opportunity and did make close observations of certain facial features, forexample, that a trier of fact cannot, given the distance between the position of the accused seated in the courtroom and the trier, this mayplace the witness in a superior position even though the witness is mainly engaged in a comparative exercise. [30] In the final analysis, the question of admissibility will depend on the facts of the case. As it is often the situation, it is amatter of balance; weakness in one set of factors may be offset by strength in others.

The key question that must be answered is whetherthe proposed recognition opinion will be helpful to the trier of fact, not in general or because of some presumed advantage due a priorrelationship, but on the particular realities of the individual case. [31] Now I appreciate that much of the inquiry comes close to the issue of the ultimate reliability or the weight of therecognition opinion. This issue, of course, must be left to the trier of fact. However, the gatekeeping function cannot be simply fulfilledby a superficial assessment of whether the witness has a better position.

I say this because of the policy concerns behind permitting suchevidence. [32] These concerns were explored in the seminal case of R. v. Graat, (SCC), [1982] 2 S.C.R. 819. In Graat,Dickson J. (as he then was) held that lay opinion regarding intoxication and the impairment of a person’s ability to drive due to alcoholwas admissible. In returning to first principles, Dickson J. found that lay persons may offer their opinions based upon personalobservations when that opinion is a compendious mode of speaking about facts that the witness could not as accurately and adequatelynarrate separately.

In turning to those first principles of whether the evidence should be admissible, Dickson J. first asked himselfwhether the evidence sought to be admitted was relevant. After relevance was established, the question which had to be answered waswhether, though probative, the evidence should be excluded by a clear ground of policy or law. In assessing this question, Dickson J.held that the probative value of the lay opinion evidence was not outweighed by such policy considerations as the danger of confusingthe issues or misleading the jury.

It did not unfairly surprise a party who had not had reasonable grounds to anticipate such evidencebeing offered and the adducing of the evidence did not necessitate undue consumption of time: see Graat, supra, at p. 836. [33] In Graat the police officers who testified that the appellant’s ability to drive was impaired by alcohol had personallyobserved him on the night in question. They were in an understandably superior position to the trier of fact since the trier was not presenton that night to make those observations. The trier of fact very much required the help of these witnesses in resolving this issue.

This isto be contrasted to the situation in the case at bar. Recognition witnesses are not per se in a better position to the trier because of aknowledge or ability not held by the trier. The trier does through the existence of the photograph or video have some ability to make anidentification. It is a question of degree.

In my opinion, when the litmus test of helpfulness is applied in this situation, as compared toGraat, one cannot as freely dismiss the policy concerns that may argue for the exclusion of the opinion evidence. [34] A number of the policy considerations mentioned in Graat have greater prominence when applied to lay recognitionopinion. Here, there is a potential that a jury could be misled and confused. The frailties of identification evidence in general are wellknown. Confident expressions of identification are not always reliable and probative identifications.

There have been miscarriages ofjustice due to mistaken identifications. Care is required before permitting recognition opinions to be heard by the trier of fact given thatwithout a rigorous gatekeeping function being exercised, the dangers of misidentification can be compounded with each lay opinionadmitted. In addition, there is a potential that an undue amount of time will be taken up with such recognition evidence. There may benumerous witnesses who have known the accused in the past and who may feel assured enough in proffering an opinion about whetherthe person in the video or photo is or is not the accused.

This applies to both potential Crown and defence witnesses. If such witnessescan because of their advantageous position truly help the trier of fact, then any time spent in the examination or cross-examination ofthose witnesses cannot be said to be unwarranted.

At the same time, the prospect of a seemingly endless parade of witnesses beingshown a photo or a video and being asked to try and recognize a figure within, should be avoided unless there is a real gain in the pursuitof truth at the particular criminal trial. [35] Whether the probative value of the opinion evidence is outweighed by the policy concerns is a justifiable consideration indetermining the admissibility of this type of opinion evidence. It is recognized that trial judges exercise by necessity a large measure ofdiscretion in deciding whether the opinion is admissible: see Graat, supra, at pp. 840-41.

APPLICATION OF THE LAW TO THE CASE AT BAR [36] The Crown submitted that the opinions of P.C. Blonde and P.C. DeOliveira should be admitted. Both officers had close face-to-face encounters with the accused on July 13th as they investigated and interacted with Mr. Berhe. Furthermore, it was more recent in time to the July 7th offence date. Finally, the accused had changed his appearance considerably from that time.

He has shavedoff his beard, has grown out the hair at the sides of his head, and is wearing eyeglasses. [37] Having giving careful consideration to the evidence and the submissions of counsel, I find that I am in as good a positionto make the identification as the two police officers. I find that their opinions based upon this one encounter with the accused are of noassistance to me given the particular circumstances of this case.

I have decided so for the following reasons. [38] First of all, close scrutiny of the testimony of both officers do not support a conclusion that by this one encounter theyhave a significant advantage in making the identification. I appreciate that they both had close face-to-face encounters with the accusedat a time closer to the relevant event in question. However, their recognition opinions are far from being definitive. While I am mindful

that the ultimate weight to be given their opinions is a matter that must be decided after the voir dire, some attention must be paid to theissue of whether the witness has actually purported to recognize the person. [39] P.C. Blonde was shown the photograph taken by the complainant in the subway. P.C. Blonde paused for a considerablelength of time after being shown it. She testified that it looked like accused to her. When asked why, she referred to his beard, skincoloring, face, and stature.

She pointed out the newspaper the man was carrying but immediately self-censored herself acknowledging itwould be inappropriate to use that as an identifying characteristic. In cross, she agreed a person’s height can change depending on thecamera angle. She admitted she dealt with the accused face-to-face at the scene of his arrest for about 2 to 3 minutes. She did not lookat him during the transport to the station. Back at the police station, she could not recall how long the parade before the officer-in-charge of the station took place but in her experience such parades usually took about 5 to 10 minutes.

The overall state of P.C. Blonde’stestimony, as recognized by the Crown in submissions, is far from being unequivocal in her identification of the accused as the person inthe photograph. [40] On the other hand, P.C. DeOliviera did not hesitate when she was shown exhibit #1. She immediately stated that the manin the photograph was the accused. He had the same facial hair and skin color, the height was consistent, and he was wearing darkcolored clothes, collared shirt and a baseball cap.

In sum, she testified that she had about forty minutes with the accused not counting thetime in the scout car when she was not looking at him. [41] The problem I have with this officer’s opinion is the answers she gave on cross-examination. She admitted that bylooking at that photograph for a few moments did not put her in any better position than I, the judge.

She further admitted that in thephotograph the man’s face was a bit obstructed by the pole and that the man “resembled” the accused before the court. [42] I agree with the Crown that it is a legal determination whether recognition opinion evidence would be helpful to the trierof fact and the police officer’s testimony is not conclusive on the issue. Nevertheless, I find that the officer’s admission indicates thather present ability to offer an opinion on the photograph marked as exhibit #1 is no greater than that held by the trier of fact.

In other words, she acknowledged that whatever familiarity or knowledge she gained on July 13th about the accused which may be helpful inmaking an identification, did not give her any greater advantage than me. [43] Had this been the only factor, I may have been persuaded that these frailties in the officers’ evidence were matters ofweight that could be explored before the trier of fact and that their opinions should be admitted.

However, there are other factors thatmust be considered. [44] One of the strongest arguments in favour of admissibility would have been the fact that the accused had significantly changed his appearance since July 7th. Both police officers had dealings with the accused much closer in time and before he had made such a marked change in his appearance. However, it is the photograph taken on July 13th when arrested by P.C. Blonde and P.C.DeOliveira marked as exhibit #3 that extinguishes the force of this argument.

I am permitted to compare this photograph to the persondepicted in exhibit #1 to determine the question of identity. The principle in Nikolovski, supra, also applies when comparing a knownimage of the accused to the image of the perpetrator/suspect: see R. v. Panghali, 2012 BCCA 407 , [2012] B.C.J. 2115 (C.A.) atpara. 77. [45] This “mug shot” is very clear and detailed. It shows Mr. Berhe as he was on the date of his arrest in a close full facialshot.

By comparing this “mug shot” to the photograph taken by the complainant on the subway, I am in some ways in a superiorposition to that of the police officers in making the identification. Their recollection of what the accused looked like on the date of hisarrest suffers from the passage of time and the limited opportunity to observe the accused. I have a fixed image of the accused takenfrom the same date prior to any change in his appearance to scrutinize and compare without the limitation of time or the frailty ofdiminished memory.

I am mindful that the mere fact that I am in a position to make an identification from a photograph or, in this case,two photographs, does not mean that lay recognition opinions are not helpful and inadmissible but it remains an important consideration. [46] Finally, in this case, exhibit #1 is a two dimensional still photograph and not a video or an audio/video depiction. Fromthis one photograph, one cannot meaningfully gain any information about the suspect’s height, stature, posture, manner of movement,facial expression, voice, or physical manifestation of personality.

Given this, the fact that the officers had personal interaction with theaccused at close quarters does not provide them any advantage that I do not have by simply making the comparison between the “mugshot” and exhibit #1. [47] In conclusion, I find that the lay recognition opinion evidence of the two police officers is not admissible. In theparticular circumstances of this case, they are not in a better position than me based upon their one prior encounter with the accused onhis arrest and I do not find their opinions to be of any assistance on the crucial issue of identity. Released: July 4, 2013 Signed: