Opinion
DOCKET NO. A-1079-13T1
07-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHERYL A. SATORIS, Defendant-Appellant.
Cheryl A. Satoris, appellant, argued the cause pro se (William H. Buckman, on the briefs). Joseph H. Enos, Jr., Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Enos, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-07-0722. Cheryl A. Satoris, appellant, argued the cause pro se (William H. Buckman, on the briefs). Joseph H. Enos, Jr., Assistant Prosecutor, argued the cause for respondent (Sean F. Dalton, Gloucester County Prosecutor, attorney; Mr. Enos, on the brief). PER CURIAM
Defendant Cheryl A. Satoris appeals from a September 13, 2013 judgment of conviction, entered following a jury verdict finding her guilty of third-degree arson, N.J.S.A. 2C:17-1(b)(2). She also appeals from her five-year probationary sentence, conditioned on her serving 981 days in county jail, the amount of time she was incarcerated waiting for her trial to commence. On appeal, she argues, among other things, she is entitled to a new trial because the trial court not only erroneously permitted the State to introduce evidence concerning a canine's detection of an accelerant on evidence removed from defendant's residence, but also erroneously permitted the State to present expert testimony based on the canine's accelerant-detecting activity. Further, defendant contends her sentence is illegal. We agree with these arguments. Accordingly, we reverse defendant's conviction, vacate the sentence, and remand for a new trial.
Early on the morning of January 6, 2011, in Washington Township, a fire severely damaged a two-story building containing eight condominium units, seven of which were occupied. Defendant lived in unit 35. Washington Township Police arrested defendant on the day of the fire and charged her with aggravated arson.
In July of the same year, a Gloucester County grand jury charged defendant with second-degree aggravated arson, N.J.S.A. 2C:17-1(a). Defendant entered a plea of not guilty on September 23, 2011. By March 26, 2012, the prosecutor was prepared to proceed with the trial. Defendant, however, needed additional time for her expert to prepare a report. Throughout the remainder of 2012 the court conducted ten conferences, and at each conference defendant requested additional time to permit her expert to prepare a report. Defendant finally served the report during the third week of December 2012. The case was tried during the last week of July and first week of August, 2013. The jury found defendant not guilty of aggravated arson, but guilty of third-degree arson, N.J.S.A. 2C:17-1(b)(2), for "placing a building or structure of another in danger of damage or destruction."
On September 13, 2013, the court sentenced defendant to a five-year probationary term. When imposing sentence, the court noted defendant "has 981 days of credit for time served." The court ordered defendant to pay $48,333.50 in restitution, and imposed appropriate penalties and assessments. The judgment of conviction states the probationary period is conditioned on a 981-day county jail term, with credit for 981 days served.
The State developed the following proofs at trial. Shortly before 6:00 a.m. on January 6, 2011, Washington Township Police and Fire personnel were dispatched to the condominium building. Police helped residents evacuate the building. Firefighters from Washington Township and other municipalities contained the fire by approximately 7:00 a.m. and fully suppressed it by approximately three o'clock that afternoon.
During the ensuing investigation, one of the neighboring unit owners told investigators about a strange conversation he had with defendant around noon the previous day. He was walking from his unit to his car when defendant called him over to the steps where she was sitting "with some scriptures, cigarettes, [and] a steak knife." She asked if he was part of the conspiracy among the Commissioner, Illuminati, and other people to kill her. She told him she dies three times each day and then comes back to life, and the end of the world was coming. She asked if he had renter's insurance. When he said he did not, she asked, "do you know these units are going to burn down?" She told him the Commissioner and others were pumping gas into her attic in an effort to kill her, and she attempted to determine whether the neighbor and his grandson were part of the conspiracy.
The next morning, after someone knocked, the neighbor opened his unit door and saw defendant's unit on fire. He alerted each of the other unit owners, who evacuated the building. He testified that the building burned down and had since been rebuilt. Defendant told him she did not burn it down, she only lit a candle.
The State qualified Washington Township Fire Department Investigator Steven Finn as an expert in the investigation of origin and cause of fires. Investigator Finn led a team of investigators in an effort to determine the fire's cause and origin. In doing so, they followed the guidelines in National Fire Protection Agency (NFPA) 921, Guide for Fire and Explosion Investigations. The team inspected the exterior of the building, as well as the electric and gas meters, none of which had malfunctioned.
The team was unable to physically enter unit 35, defendant's unit, or unit 36, due to the collapse of a stairway leading to those units and the partial collapse of unit 35. Notwithstanding this damage, the team was able to inspect units 35 and 36 from above, using an aerial ladder. According to Investigator Finn, the heaviest and lowest area of fire damage occurred in the sunroom, which would be the living room area of unit 35, near the unit's main entry door. Investigator Finn explained the heaviest and lowest area of damage was the area of the fire's origin.
After determining the area of origin, the investigative team attempted to locate accidental causes. Their inspection eliminated all items that could have been an accidental cause of the fire. The team did observe some evidence that could indicate an accelerant was involved. For example, there was damage in the space between unit 35 and the unit below it, suggesting the fire burned down. This phenomenon could have been caused by an accelerant dripping down from the floor. Irregular burn patterns could also be consistent with the use of an accelerant.
The investigative team found flammable objects such as curtains, blankets, some clothing, and an area rug piled in the center of defendant's sunroom. The team also retrieved a metal can containing liquid. The team removed these items for evidence.
Investigator Finn requested an accelerant detection canine from the Gloucester County Sheriff's Department. After the canine arrived, the investigators opened two tarps on the front lawn and the dog's handler had the dog sniff the tarps, with no results. The investigators placed the evidence they had removed from unit 35's sunroom on the tarps. The prosecutor attempted to elicit Investigator Finn's opinion as to the cause of the fire. The following occurred:
[Prosecutor]: After reviewing the examination of the exterior and interior areas of the structure, the interviews taken, the positive indications by the accelerant canine.The prosecutor continued without further objection:
[Defense Counsel]: Objection, Judge. That wasn't in evidence or that wasn't brought before this officer. . . .
[Prosecutor]: Your Honor, the State would be glad to strike the canine from the testimony. Officer Scott will be in to testify.
THE COURT: All right. All right. Well, the - - yeah, I'll sustain the objection. Maybe you can rephrase your question again and we'll go back, because I will sustain it.
Q. What was the cause of the fire?
A. We determined the cause of the fire to be an ignitable liquid being applied to the floor area of the sunroom in the area of the front door, and then ignited.
Q. Is your opinion within a reasonable degree of scientific certainty?
A. Yes, it is.
Investigator Finn did not immediately explain the basis for his opinion. Notwithstanding the court's sustaining an objection to the Investigator's reference to the canine, Investigator Finn referred to the dog three times during his cross-examination:
Q. Now, you just came to an opinion that the cause of the fire was an arson and you wrote that in your report; correct?
A. I wrote that it was an incendiary fire.
Q. Right, and when you did your report, you didn't have the lab results back; right?
A. That is correct.
Q. So you made - - came to the conclusion that it was arson, without having any lab results of anything taken from the building and knowing the results of the tests?
A. We relied on the canine handler who, again, advised there was positive indications. That the accelerant canine indicated positive for accelerants on the floor.
Q. So your opinion of what caused the fire was just what you had at that time?
A. That is correct.
Q. Would it have been important to get the lab results back before coming to an absolute conclusion that it was an arson?
A. Well, the canine handler has advised us many times that the canine is more sensitive than the lab equipment and lot of times, we use the lab equipment to tell us exactly what the liquid was. It may be a lighter fluid or something in that means.
. . . .
Q. Would your opinion change if, say, the items that you targeted to send to the lab were sent to the lab and it was determined, hypothetically, that none of the things you sent came back with any ignitable liquid on them.
A. Not after seeing the and [sic] speaking with the canine handler. He has stated many times that the canine was more sensitive than the lab equipment that's used to do the testing.
. . . .
Q. And you indicated in your report that you will have to wait to get the lab results from the samples that were collected, to determine the type of ignitable fluid that was applied; right?
A. That is correct.
Q. That was an important factor; correct?
A. That would just basically tell us what the sample was. If there was an ignitable liquid, again, they can usually
tell you what classification the ignitable liquid is.
Q. What commonly happens when your lab reports conflict with the canine sniffing dog and his reactions.
A. We rely heavily on the canine handler. Again, the canine handler has told us many times that the dog is, the canine, is more sensitive than the lab equipment. And sometimes the lab equipment, with the amount of water used, it dilutes the accelerant and they're not able to [detect] it.
Following Inspector Finn's testimony, the State presented the expert testimony of a forensic scientist who worked in the New Jersey State Police South Regional Laboratory. Using gas chromatography and mass spectrometry, she analyzed the can containing liquid and eleven other items of evidence investigators removed from defendant's condominium unit. The eleven other items included two carpet samples, two fire debris samples, a knit cap, two hooded sweatshirts, two pairs of socks, one pair of black leather pants, and another unidentified item. The can testified positive for a "medium petroleum product." The expert found no ignitable liquid residue on any of the other evidence. According to the expert, the absence of an ignitable liquid residue did not definitely mean there was no liquid accelerant on those items; the accelerant could have been washed away by the fire hose or evaporated into the air because they were highly volatile.
The prosecutor proposed to call the accelerant-sniffing dog's handler. Defense counsel objected to the testimony on multiple grounds. First, the defense expert informed him "a canine dog that is trained to sniff debris from a fire scene has to be certified annually" and the State had provided certifications for the canine only through 2004. Second, counsel understood "a canine fire debris sniffing dog must be tested on a daily basis" and the State had provided testing only through 2009. Third, the prejudice from the testimony would far outweigh its probative value "because the dog . . . mis-hit on every single thing it sniffed. Everything that the dog reacted to as being an ignitable liquid substance was brought to the lab and the lab confirmed that there was no ignitable liquid substance on any of those items." Fourth, State v. Sharp, 395 N.J. Super. 175 (Law Div. 2006) held such testimony scientifically unreliable and inadmissible absent confirmation through lab testing. In view of these objections, the court decided to conduct a hearing pursuant to N.J.R.E. 104 to determine the admissibility of the handler's testimony.
The handler, retired Sergeant Bruce Scott, had been employed by the Gloucester County Sheriff's Department for twenty-six years. He was the Sergeant in charge of court security and was also a canine handler. The canine involved in the arson investigation was named T.K.
Sergeant Scott testified T.K. was trained at the Maine State Police Academy in Alfred, Maine for four or five weeks, beginning in May 2000. He returned to Maine with T.K. in each of the following three years, for four or five days, so that T.K. could be re-certified. Thereafter, the dog was annually re-certified by the Cape May County Sheriff's Department.
The dog was also trained daily. Sergeant Scott explained that because T.K. was a "food reward dog, . . . her training was every day, unlike most of the play reward dogs that . . . don't train every day." In order for T.K. to be fed each day, she had to smell an accelerant.
In addition to her training for re-certification and her daily training, T.K. had "in-service days." Initially, T.K. participated in "a couple," but thereafter T.K. participated in four to ten in-service days annually. The sergeant could not, however, produce training logs for any year after 2009.
The court ruled that Sergeant Scott could testify about the dog's findings. The court acknowledged the NFPA guideline that stated, "in order for the presence of absence of an ignitable liquid to be scientifically confirmed in a sample, that sample should be analyzed in a laboratory. Any canine alert not confirmed by laboratory analysis should not be considered validated." In view of the guideline, the court determined Sergeant Scott could testify about T.K.'s positive indication concerning the can containing the liquid.
As to the items that did not include laboratory validation of the presence of an ignitable liquid, the court ruled "the risk of undue prejudice does not substantially outweigh its probative value." The court did not elaborate on its decision, other than to say if the prosecutor wished to elicit testimony about the dog's activities concerning the other evidence, defense counsel could cross-examine Sergeant Scott about such testimony. The court explicitly ruled inadmissible the sergeant's opinion that an accelerant-detection canine was more reliable than either gas chromatography or mass spectrometry.
Following the hearing, Sergeant Scott testified in front of the jury. During cross-examination on his qualifications, defense counsel asked the following question and the sergeant gave the following answer:
Q: Mr. Scott, it's your testimony you don't know how many times or what the error rate for T.K.; correct?
A. It - - in my professional opinion, I never checked her - - what is considered what you're saying is an error rate and the reason why is, a canine, an arson canine or any canine, can be trained to the smallest of minute things that a laboratory may not be able to pick up.
In other words, I could train her on, say a micro-liter, which is like less than a drop or so and I could get her nose down
that far. That's how accurate they are, but that would not be able to be picked up on a gas chromatogram or a mass spec.
So, you know, we always tried to keep that training level up to where the level would be able to be detected by those machines.
Sergeant Scott testified that, in addition to the can containing the liquid, T.K. "made a positive indication" on five other items of evidence investigators removed from defendant's sun room. The sergeant identified each item through photographs. Sergeant Scott explained that the dog made a positive indication by sitting by an item, putting her nose down on top of the item, and repeating that behavior until she was fed.
Defendant presented one witness, Laura Billon, a forensic arson expert employed in the Arson Department of the Department of Homeland Security, where she teaches forensic evidence collection, fire and arson investigation, and juvenile fire setting. She also works for the City of Los Angeles conducting fire investigations, hazardous materials investigations, and disaster investigations. Lastly, for seven years, she has done "fire setting profiling" for the Center of Arson Research. Billon considered the police investigative reports, scene photographs, witness interviews, "and all pertinent information that goes with such." She opined, "unequivocally that this was an accidental fire."
Billon testified that NFPA 921, the Guide for Fire and Explosion Investigations, is the treatise utilized throughout the country to conduct fire investigations. She was somewhat critical of the fire's investigation, but was particularly critical of Investigator Finn's opinion. For example, Billon rejected his suggestion that irregular burn patterns could indicate the use of an accelerant. Citing a fire "recreated by world renowned experts within our industry," Billon explained "it has been proven irrefutably, that you can get the exact same patterns, irregular as such, from fires in which there was no ignitable that was utilized. It's just regular burning and combustion and that's well documented." She also pointed out that in this case no samples of where the irregular burn pattern had occurred were tested in a laboratory for ignitable fluids.
Concerning the canine, Billon emphasized, "you cannot utilize the dog's reactions until they've been clearly verified from the laboratory." She explained that in all of our homes are certain ignitables such as cleaning materials, carpeting, wall treatments, and pesticides. Additionally, when pyrolysis — the breakdown of chemical makeup due to excessive heat — occurs, items will often release substances that smell very much like an ignitable liquid, and thus can cause a canine to make a false positive alert. She quoted NFPA standards as stating:
It should be noted that many plastic materials release hydrocarbon fumes when they pyrolysize or burn. These fumes may have an odor similar to that of petroleum products and can be detected by combustible gas indicators when no ignitable liquid accelerants have been used. A positive reading should prompt further investigation and the collection of samples for more detailed chemical analysis.
Quoting additional NFPA standards, she further testified: "The shear variety of pyrolysis products present in fire scenes suggest possible reasons for some unconfirmed alerts by canines. The discriminatory ability of the canine to distinguish between pyrolysis products and ignitable liquids is remarkable but not infallible." She emphasized, however, "you cannot utilize the dog's [positive] reactions [as evidence] until they've been clearly verified from the laboratory."
Billon agreed that the fire started in defendant's unit. Based upon the absence of verifiable evidence an accelerant had been used to start the fire, the inability of investigators to rule out an accidental cause, and defendant's statement she had gotten up during the night, lit five or six candles, and gone back to sleep, waking to a fire, Billon concluded the fire started accidentally.
Defendant raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED BY PERMITTING THE INTRODUCTION OF UNRELIABLE SCIENTIFIC EVIDENCE, WHICH DEPRIVED [DEFENDANT] OF HER DUE PROCESS RIGHT TO A FAIR TRIAL. (Partially raised below)
A: The trial court erred by permitting the State's witnesses to testify as to the canine's multiple uncorroborated alerts because an accelerant-detection dog's positive reactions are unreliable in the absence of laboratory confirmation.
B: The trial court erred by permitting the State's experts to opine that an accelerant-detection canine's olfactory abilities are superior to laboratory testing because this opinion is not generally accepted in the scientific community of arson investigators.
C: The trial court erred by permitting the State's fire investigator to opine that an accelerant was used to set the fire because this conclusion was based upon novel scientific evidence and net opinions that fail to meet the minimum threshold for admissibility. (Partially raised below)
D: The trial court erred by permitting the State to elicit net opinions that accelerants purportedly used to start the fire could have dissipated prior to laboratory testing and that fire hoses could have washed the accelerants away. (Not raised below)
POINT II: THE TRIAL COURT ERRED BY PERMITTING THE PROSECUTOR TO COMMENT UPON FACTS NOT SHOWN FROM THE EVIDENCE AND TO EXPRESS PERSONAL BELIEFS AS TO THE TRUTHFULNESS OF THE STATE'S WITNESSES. (Not raised below)
POINT III: THE DELAY OF NEARLY 33 MONTHS IN BRINGING THIS CASE TO TRIAL, OCCASIONED IN PART BY THE STATE'S UNEXPLAINED TWO-YEAR DELAY IN CONDUCTING FORENSIC ANALYSIS OF THE EVIDENCE, VIOLATED DEFENDANT'S RIGHT TO A SPEEDY TRIAL. (Not raised below)
POINT IV: THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE BY SENTENCING [DEFENDANT] TO FIVE YEARS OF PROBATION CONDITIONED UPON A JAIL TERM OF 981 DAYS TIME SERVED, BECAUSE N.J.S.A. 2C:43-2(B)(2) PROHIBITS IMPOSITION OF A JAIL TERM EXCEEDING 364 DAYS AS A CONDITION OF PROBATION. (Not raised below)
POINT V: THE TRIAL COURT ERRED IN FINDING [DEFENDANT] MENTALLY COMPETENT TO STAND TRIAL AND CAPABLE OF WAIVING A PSYCHIATRIC DEFENSE. (Partially raised below)
POINT VI: DEFENDANT IS ENTITLED TO RELIEF AS A RESULT OF THE CUMULATIVE PREJUDICIAL EFFECT OF THE ERRORS IN THIS CASE. (Partially raised below)
We have considered Points II, III, V, and VI in light of the record and controlling law, and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that defendant properly preserved for appellate review none of these arguments. This is particularly so concerning her competency and psychiatric claims, for which she has cited to no reference in the trial record where she even raised the issues. Defendant's argument concerning the State's delay in bringing the matter to trial is belied by her repeated requests over the course of one year for delays to permit her expert to prepare a report.
However, defendant's claim concerning the State's expert and the accelerant-detecting canine are meritorious. New Jersey Rule of Evidence 702, which governs the admission of expert testimony, provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.Thus, to be admissible, the expert testimony "must concern a subject matter that is beyond the ken of the average juror"; "be at a state-of-the-art such that an expert's testimony could be sufficiently reliable"; and be presented by a witness with "sufficient expertise to explain the intended testimony." State v. Harvey, 151 N.J. 117, 169 (1997) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).
Here, over defendant's objection, the court permitted the State to produce testimony of canine alerts to prove an accelerant had been used to start the fire, though only one of the canine's positive alerts had been confirmed by laboratory analysis. The expert's reliance on the uncorroborated canine alerts violated the standard set forth in NFPA 921, which both cause and origin experts acknowledged as the standard in fire investigation, and which defendant's expert cited as the treatise used throughout the country for such purposes. In short, the State failed to demonstrate the scientific community had sufficiently accepted uncorroborated canine alerts as evidence of an existence of an accelerant. Harvey, supra, 151 N.J. at 169.
The testimony concerning the uncorroborated canine alerts should not have been admitted into evidence, and consequently was an inadequate basis for Investigator Finn's expert testimony. The problem was exacerbated by Investigator Finn's reference to hearsay statements that uncorroborated canine alerts were more accurate than laboratory testing.
The State emphasizes that some of the improper testimony occurred during Investigator Finn's cross-examination, after the court had sustained an objection to the Investigator's references to the canine handler's hearsay statements. That may be so, but in at least two instances, Investigator Finn gave non-responsive answers to defense counsel's questions, gratuitously volunteering hearsay statements concerning a subject on which the court had sustained an objection. Moreover, Investigator Finn's opinion testimony, to the extent it was based upon uncorroborated canine alerts, should not have been presented to the jury. The testimony was the only direct proof of an accelerant being used to start the fire. Under those circumstances, we cannot conclude the error was harmless. R. 2:10-2.
The State concedes the sentence imposed is illegal. N.J.S.A. 2C:43-2(b)(2). The sentence is vacated for that reason as well as the reversal of defendant's conviction.
Reversed and remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION