Opinion
DOCKET NO. A-4853-12T2
03-09-2015
STATE OF NEW JERSEY, Plaintiff-Appellant/Cross-Respondent, v. DEBORAH A. MEEHAN, Defendant-Respondent/Cross-Appellant.
Joseph D. Coronato, Ocean County Prosecutor, attorney for appellant/cross-respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent/cross-appellant (Gilbert G. Miller, Designated Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-12-2154. Joseph D. Coronato, Ocean County Prosecutor, attorney for appellant/cross-respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent/cross-appellant (Gilbert G. Miller, Designated Counsel, on the brief). PER CURIAM
The State appeals from defendant's judgment of conviction imposing a three-year prison term, contending that the judge erred by downgrading defendant's second-degree conviction to a third-degree range. Defendant cross-appeals from her conviction for second-degree theft by unlawful taking, N.J.S.A. 2C:20-3. On the State's appeal, we vacate defendant's sentence and remand for resentencing. On defendant's cross-appeal, we affirm.
I.
We discern the following facts from the evidence adduced at the jury trial. Defendant worked as a bookkeeper for a law firm (the "firm"). Defendant was in charge of the firm's payroll, bills, and expenses, and would issue checks by affixing a partner's (the "partner") signature using an ink stamp. Over eight years, defendant issued and stamped the partner's signature on checks, totaling over $100,000, for her own personal use (the "checks"). Then, while defendant was out of the office for a few days, the partner discovered a $20,000 withdrawal from the firm's bank account and learned that there was a tax lien on the firm. The partner confronted defendant, hired an accountant to review the firm's books, and reported the matter to the Ocean County Prosecutor's Office.
Two detectives, along with several police officers, arrested defendant and executed a search of defendant's house pursuant to a warrant. The detectives found clear plastic bags containing mail addressed to the firm in defendant's garage.
The detectives transported defendant back to the station and conducted a videotaped interview. The detectives informed defendant of her rights and defendant signed a form acknowledging her rights and waiving them. Initially, defendant maintained that she had permission to issue the checks, but later conceded that she did not obtain permission for each check.
At trial, the State played the video of the interview to the jury and provided the jury with the interview transcript. At the conclusion of trial, the jury found defendant guilty of the theft offense. The judge denied defendant's application for probation, downgraded defendant's second-degree offense to third-degree, and then sentenced defendant to prison and imposed restitution in the amount of $113,191.92.
On cross-appeal, defendant argues:
Due to the nature of defendant's arguments, we address defendant's points on the cross-appeal first.
POINT I
DEFENDANT DID NOT EFFECTIVELY WAIVE HER CONSTITUTIONAL RIGHT TO REMAIN SILENT, AND HER CUSTODIAL STATEMENT WAS NOT VOLUNTARILY AND INTELLIGENTLY GIVEN.
A. The advisement and waiver of rights form used in this case improperly required declarants to simultaneously acknowledge and waive their rights under the Fifth and
Fourteenth Amendments to the United States Constitution and New Jersey's common-law privilege against self-incrimination, defendant's signature on the form did not establish that she in fact waived her constitutional and common-law right to remain silent, and the State failed to establish that she effectively waived that right.
B. Defendant's statement should have been suppressed because it was not voluntarily and intelligently given.
POINT II
DEFICIENCIES IN THE JURY INSTRUCTIONS DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III
THE TRIAL COURT'S REJECTION OF DEFENDANT'S APPLICATION FOR SENTENCING TO A TERM OF PROBATION WAS A MANIFEST ABUSE OF DISCRETION.
On appeal, the State argues:
POINT [IV]
THE TRIAL COURT ABUSED ITS DISCRETION BY DOWNGRADING DEFENDANT'S SENTENCE BASED ON THE COURT'S SUBJECTIVE AND UNSUPPORTED JUDGMENT THAT A "THEFT OFFENSE" WAS NECESSARILY LESS SERIOUS THAN OTHER SECOND-DEGREE CRIMES.
II.
We reject defendant's contention that the judge erred in denying her motion to suppress her statements.
When reviewing a trial court's decision on a motion to suppress, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal quotation marks omitted). The trial court's legal conclusions are subject to de novo review. State v. Smith, 212 N.J. 365, 387 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
"A confession obtained during a custodial interrogation may not be admitted in evidence unless law enforcement officers first informed the defendant of his or her constitutional rights." State v. Hreha, 217 N.J. 368, 382 (2014) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966)). A defendant may then waive his or her rights, but only if that waiver is made "voluntarily, knowingly, and intelligently." Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.
The State has the burden of proving beyond a reasonable doubt that a defendant's confession was voluntary and that "the police did not overbear the will of the defendant." Hreha, supra, 217 N.J. at 383 (citing State v. Galloway, 133 N.J. 631, 654 (1993)). Courts are to assess the totality of the circumstances, evaluating the characteristics of the defendant and the nature of the interrogation by looking at factors like "the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved." Galloway, supra, 133 N.J. at 654. Moreover, courts should consider "whether the defendant has had previous encounters with law enforcement and the period of time between when Miranda rights were administered and when [the] defendant confessed." Hreha, supra, 217 N.J. at 383.
A.
Defendant's contention that she could not have effectively waived her rights, by signing a form that simultaneously acknowledged receipt, understanding, and waiver of her rights, is unpersuasive. Here, the judge found that
the detectives clearly informed [defendant] of her Miranda rights at the beginning of the interview. After the Miranda form was read to her, [defendant] acknowledged that she reads, writes and understands the English language. [Defendant] further acknowledged that she understood her rights, took the time to read over the Miranda form, and signed right below the waiver portion of the form, which stated that [defendant] understood her rights and was willing to answer questions without a lawyer being present. Although [defendant] argues that a "less confusing form" could have been used, [defendant] was given the opportunity to read and review the form before she signed it.
[(Footnote omitted).]
A review of the interview transcript, along with the video, indicates that defendant orally waived her rights as well. Defendant indicated that she was "cognizant," that she knew where she was, who she was, and who the detectives were. She acknowledged that "[i]f, at any point, [she did not] want to talk to the [detectives] anymore," or if she felt her medications were making her "drowsy" or "unclear about anything," she would let the detectives know. After receiving her rights, both orally from the detectives and in written form, defendant read and signed the form, and then began to answer the detectives' questions.
In a separate application for admission into the Drug Court program, defendant presented evidence that she has been diagnosed with, and treated for, bipolar disorder, post-traumatic stress disorder, adjustment disorder with anxiety and depression, and obsessive compulsive disorder, in addition to a history of sedative, opioid, cocaine, and alcohol abuse.
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Therefore, even if the form could have benefitted from two separate signature lines, as defendant suggests, it makes no difference here. See State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994) (noting that "Miranda does not require a written waiver"), certif. denied, 140 N.J. 277 (1995). Defendant demonstrated a sufficiently "clear manifestation of a desire to waive" her rights. State v. Graham, 59 N.J. 366, 376 (1971) (citations and internal quotation marks omitted).
B.
Defendant's next contention, that her statements were not voluntarily and intelligently given, is equally without merit. The judge found that
defendant appeared normal, although on a few occasions [defendant] was sobbing. . . . At no time did [defendant] appear to not understand or not know what she was doing.
[T]his [c]ourt finds that [defendant] was responsive to the questions that were being asked and showed no signs of confusion or not being alert.
. . . .
Here, the interrogation lasted approximately an hour and ten minutes. [Defendant] did not appear to be pressured or coerced in any way. There were no signs of physical coercion . . . . The detectives even provided [defendant] with water and tissues when needed. Although [defendant] did appear to become distressed towards the end of the interview, this would be a normal reaction considering that [defendant] finally spoke about and realiz[ed] what she had done. [Defendant] never indicated that she was tired, wanted to take a break or wanted to speak with an attorney. Even at the end of the interview, [defendant] acknowledged that she was not threatened or coerced in making the statement, no promises were made to her, and everything she stated was true and correct. [Defendant] also acknowledged that she was still cognizant of everything that was going on. Therefore, this [c]ourt finds that the nature of the interrogation was not such that [defendant's] will was overborne; [defendant's] statement was given voluntarily, knowing[ly], and intelligently.
Looking at the totality of the circumstances, there is sufficient credible evidence in the record to support the judge's finding that defendant's statement was given voluntarily, knowingly, and intelligently. Defendant was adequately advised of her constitutional rights and the entire interview lasted just over an hour. Although defendant had existing mental health issues and had taken medication before the interview, she was cognizant and aware of her surroundings, as depicted in the video and transcript. See State v. Glover, 230 N.J. Super. 333, 342 (App. Div. 1988) (noting that mental illness does not necessarily invalidate a confession), certif. denied, 121 N.J. 621 (1990); Warmbrun, supra, 277 N.J. Super. at 64 (holding that a confession given when an individual is under the influence is not per se involuntary).
Furthermore, there were no signs of coercion. According to the transcript and video, defendant became emotional towards the end of the interview on her own accord. Defendant first began to cry and told the detectives that she was ashamed of herself in response to the detectives suggesting that defendant stole the firm's money because she was not "being treated fairly," was "under-compensated" and had a gambling problem. The detectives immediately consoled defendant, offered her water and tissues, and the interview concluded shortly thereafter. Therefore, the judge's denial of defendant's motion to suppress was proper.
III.
We also reject defendant's contention that deficiencies in the jury charge deprived her of her right to a fair trial, and that the assistant prosecutor made inappropriate remarks in summation.
It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Id. at 287-88. Upon review, we must read the jury charge as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008). Furthermore, when a party objects, the "reviewing court should reverse on the basis of that challenged error unless the error is harmless." Toto v. Ensuar, 196 N.J. 134, 144 (2008). An error is harmful if it is "clearly capable of producing an unjust result." R. 2:10-2.
A.
The jury charge on evaluating the voluntariness of defendant's statements to the police was neither inaccurate nor prejudicial, and did not downplay the effect of psychological interrogation tactics on the voluntariness of defendant's statements, as defendant contends. At the conclusion of trial, the judge provided the jury with the following instructions:
You must be firmly convinced in the voluntariness of [defendant's] statement. To be voluntary, the statement must be the product of a free and deliberate choice and must be done with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
. . . .
An involuntary statement can result from mental as well as physical coercion. Unlike the use of physical coercion, however, use of a psychologically-oriented technique during questioning is not inherently coercive. The questioning of a suspect almost necessarily involves the use of psychological factors. Appealing to a person's sense of decency and urging him/her to tell the truth for his/her own sake are applications of physiological principles. The real issue is whether the change of mind was voluntary and not an overbearing of the suspect's will.
[(Emphasis added).]
This language comes directly from our Supreme Court. Galloway, supra, 133 N.J. at 654 ("Unlike the use of physical coercion, however, use of a psychologically-oriented technique during questioning is not inherently coercive."); State v. Miller, 76 N.J. 392, 405 (1978) ("Questioning of a suspect almost necessarily involves the use of psychological factors. Appealing to a person's sense of decency and urging him to tell the truth for his own sake are applications of psychological principles.").
We also conclude that the judge's misstating "use of a physically-oriented technique" instead of "use of a psychologically-oriented technique" was at most harmless error. Not only did defense counsel waive a re-reading of the charge, the judge provided the jury with typed copies of the jury charge containing the correct language.
B.
Defendant next argues that the combined effect of the jury charge on the reasonable doubt standard with the prosecutor's repeated comments, that the jury's role is to find the truth, potentially led the jury to apply a lower standard of proof than beyond a reasonable doubt. We disagree. The judge gave the jury the following charge:
A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of [defendant] after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of [defendant's] guilt. In this world, we know very few things with absolute certainty. In
criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that [defendant] is guilty of the crime charged, you must find her guilty. If, on the other hand, you are not firmly convinced of defendant's guilt, you must give defendant the benefit of the doubt and find her not guilty.The language above comes directly from the model jury charge on reasonable doubt and deliberations, and was therefore proper. See Model Jury Charge (Criminal), "Reasonable Doubt" (Jan. 2013); Model Jury Charge (Criminal), "Criminal Final Charge, Deliberations" (Jan. 2013).
. . . .
There is nothing different in the way a jury is to consider the proof in a criminal case from that in which all reasonable persons treat any questions depending upon evidence presented to them. You are expected to use your own good common sense; consider the evidence for only those purposes for which it has been admitted and give it a reasonable and fair construction in the light of your knowledge of how people behave. It is the quality of the evidence, not simply the number of witnesses that control.
C.
There was also no misconduct in the assistant prosecutor telling the jury that their job was to discern the truth. A prosecutor is permitted to present the State's case in a "'vigorous and forceful'" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). It is the "exclusive purview of the jury after reviewing all the evidence" to "decide where the truth ultimately lies." State v. Ways, 180 N.J. 171, 197 (2004); see also State v. Jenewicz, 193 N.J. 440, 451 (2008) (referencing the "jury's truth-seeking function").
It is well-established that "'[a] defendant is entitled to a fair trial but not a perfect one.'" State v. Loftin, 146 N.J. 295, 397 (1996) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953)). Here, the judge properly charged the jury, the prosecutor did not commit any misconduct, and the judge's minor misstatement was harmless error at most.
IV.
We conclude that the judge properly denied defendant's application for a sentence to probation, but agree with the State that it was an abuse of discretion for the judge to downgrade defendant's second-degree conviction to a third-degree range.
Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed that is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.
A.
There was sufficient credible evidence in the record to deny defendant's request for probation.
N.J.S.A. 2C:44-1d mandates prison sentences for convictions for second-degree crimes "unless, having regard to the character and condition of the defendant, it is of the opinion that his [or her] imprisonment would be a serious injustice which overrides the need to deter such conduct by others." This presumption of imprisonment is overcome only in the "truly extraordinary and unanticipated cases where the human cost of punishing a particular defendant to deter others from committing his [or her] offense would be too great." State v. Evers, 175 N.J. 355, 389 (2003) (citation and internal quotation marks omitted).
To determine if imprisonment would result in a serious injustice, courts are to consider (1) the "character and condition" of the defendant and (2) the role of deterrence. Id. at 392-95. For the "character and condition" prong, "a trial court should determine whether there is clear and convincing evidence that there are relevant mitigating factors present to an extraordinary degree" and that "they so greatly exceed any aggravating factors that imprisonment would constitute a serious injustice overriding the need for deterrence." Id. at 393-94. As for the role of deterrence, the trial court is to consider the severity, nature, and circumstances of the offense, such that the more serious the offense and the more deliberate the conduct, the greater the need for deterrence. Id. at 394.
At sentencing, the judge denied defendant's application for probation because defendant "failed to satisfy the burden which would warrant such a sentence." In reaching this conclusion, the judge found aggravating factors three, nine, and twelve, and mitigating factors two, six, and seven:
I did find aggravating factor number three, that there is a risk [defendant] will commit another offense. It's not because of the prior record, it's because of substance abuse history. And the [c]ourt will note there was a substantial amount of different checks that were found, [defendant] was found guilt[y] during the trial. I gave light weight to that.
I gave heavy weight to factor number nine, the need to deter this defendant and others from violating the law. Both counsel made reference to white collar crime, how it's perceived. There is a need to deter such conduct, both to this defendant and . . . also to the public at large. I gave heavy weight to that.
Regarding aggravating factor number [twelve], [defendant] committed an offense against a person who she knew[,] should or have known[,] who is [sixty] years old. I did find it. I give light weight to that. I will consider that the victim was undergoing stress based on the loss of his son.
Regarding the mitigating factors, I did find mitigating factor number two, [defendant] did not contemplate that her conduct would cause or threaten serious harm. Yes, there was nature of thefts taking place. But she didn't contemplate that it would cause serious harm to that firm.
I did find mitigating factor number six, because [defendant] will compensate the victim for the loss in which she caused. And I will be ordering restitution.
I will find mitigating factor number seven, [defendant] has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period
of time before the commission of the present offense.
We reject defendant's argument that the judge should have sentenced her to probation simply because the judge downgraded her offense. Evers, supra, 175 N.J. at 389 (noting that the "standard for overcoming the presumption of imprisonment is distinct from that for downgrading an offense" and that "the reasons offered to dispel the presumption of imprisonment must be even more compelling than those that might warrant downgrading an offense").
Furthermore, the judge clearly provided his basis in the record for finding each factor, considered the character and condition of defendant, her substance abuse history, her clean criminal record, and the role of deterrence. Although the judge did find that "the mitigating factors substantially outweighed the aggravating factors," the mitigating factors cannot be said to have been present to such "an extraordinary degree" to "greatly exceed" the aggravating factors. Id. at 393-94. Therefore, the judge did not err by denying defendant's application for probation.
B.
The judge did, however, err by downgrading defendant's offense because the record lacks compelling reasons to warrant the downgrade.
N.J.S.A. 2C:44-1f(2) provides for the downgrading of sentences:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he [or she] was convicted.This standard is a demanding one; defendant must provide compelling reasons for the downgrade, "in addition to, and separate from, the mitigating factors which substantially outweigh the aggravating factors, that the trial court finds." State v. Megargel, 143 N.J. 484, 496-502 (1996) (citations and internal quotation marks omitted). The focus is not on the offender, but on the offense, its nature, severity, and surrounding circumstances. State v. Lake, 408 N.J. Super. 313, 326 (App. Div. 2009).
Here, the judge stated that he
was clearly convinced that the mitigating factors substantially outweighed the aggravating factors. And the [c]ourt will find that in the interest of justice it does require a downgrade for certain of the compelling reasons. This conviction did not involve a violent offense. It wasn't an aggravated offense, it was a theft crime.
There was questionable oversight in the bookkeeping operation of the business.
The State cites to State v. Jones, 197 N.J. Super. 604, 607 (App. Div. 1984), where we reversed the downgrading of the defendant's second-degree theft by deception, N.J.S.A. 2C:20-4, conviction to the third-degree, finding an abuse of discretion. We reasoned:
The Legislature has classified the seriousness of this type of crime by the amount taken. This theft was a second[-]degree offense because it exceeded $75,000. N.J.S.A. 2C:20-2(b)(1). By downgrading it for sentencing purposes, the trial judge treated it as a theft of $500 to $75,000. N.J.S.A. 2C:20-2(b)(2)(a). The legislative mandate should be followed in the absence of some compelling reason to the contrary. The trial judge's desire to rehabilitate the defendant is understandable but must give way to the requirement that the sentence "reflect the Legislature's intention to focus on the degree of the crime."The same reasoning applies here. Although defendant's theft offense did not involve violence, it was nonetheless a serious one. Defendant stole over $100,000 from the firm, clearly placing her offense in the second-degree range. Furthermore, just like in Jones, the judge's reasoning here that the firm's "questionable oversight" and employment of defendant somehow facilitated the theft is not compelling. Id. at 607 (holding that there was "no support in law or reason" for the lower court's conclusion that the defendant's employer's "failure to audit" her facilitated the commission of the crime). Although the judge's finding that the mitigating factors substantially outweighed the aggravating factors is supported by the credible evidence in the record, as discussed above, there lacked separate compelling reasons to justify the downgrade.
[Jones, supra, 197 N.J. Super. at 607-08 (quoting State v. Hodge, 95 N.J. 369, 377 (1984)).]
We affirm defendant's conviction but vacate her sentence and remand for resentencing consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION