Opinion
DOCKET NO. A-2295-11T1
2013-09-10
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LIANA D. HOWARD, Defendant-Appellant.
Charles M. Moriarty, L.L.C., attorneys for appellant (Charles M. Moriarty, of counsel and on the briefs; Timothy C. Moriarty, on the briefs). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Barbara N. Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-04-00610.
Charles M. Moriarty, L.L.C., attorneys for appellant (Charles M. Moriarty, of counsel and on the briefs; Timothy C. Moriarty, on the briefs).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Barbara N. Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In the summer of 2009, defendant, an Asbury Park police officer and an inactive member of the Army Reserves, vacated her Long Branch apartment before the lease term ended. Under federal law, a landlord may not penalize a service-member if forced to break a lease because of military duty. To avoid early-termination penalties for breaking her lease, forged military orders assigning defendant out of state were submitted to the landlord.
See 50 U.S.C.A. § 535.
Defendant was indicted along with her friend, Michele Randon, a former servicemember. Both were charged with various offenses relating to the forgery. Randon admitted she altered her own old military orders to make them appear to be current orders for defendant. Although Randon claimed in pre-trial statements that she prepared and submitted the forgery without defendant's knowledge, she entered an open plea of guilty on the eve of trial, and then testified that she conspired with defendant.
After a three-day trial in September 2011 before Judge Anthony J. Mellaci, Jr., a jury found defendant guilty of third-degree conspiracy, N.J.S.A. 2C:5-2; fourth-degree forgery, N.J.S.A. 2C:21-1(a)(1); fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1a(3); and fourth-degree falsifying records, N.J.S.A. 2C:21-4a. The court sentenced defendant to four concurrent terms of eighteen months probation, and ordered that she forfeit her position as a police officer, N.J.S.A. 2C:51-2. Defendant appeals from her conviction, identifying various alleged trial errors. We affirm.
The court dismissed a fifth count, charging third-degree tampering with public records, N.J.S.A. 2C:28-7a(2), on the grounds the statute did not cover tampering with federal government records.
I.
The following facts were developed at trial. Defendant entered a lease for an apartment at Pier Village in February 2009, with an April 1, 2009 start date. Defendant took advantage of a ten percent discount for members of the military. As of February 2009, she was still an active member of the Army Reserves.
Shortly after moving in, she complained about noise from a gym in her building. Her complaints were well-documented. The property manager, Gladys Koechlein, testified the landlord tried to abate the noise by installing soundproofing. The landlord also offered to relocate defendant to a different apartment, but she declined. Defendant did not pay rent for June or July. In mid-June, she called Koechlein, complained that the noise had not abated, and said she wanted to vacate the apartment.
Koechlein testified that she and defendant played "phone tag" in mid-July. Defendant left four voice mail messages for Koechlein. Both Koechlein and a sergeant at the Asbury Park Police department identified defendant's voice on the voice mails. The voice mail messages were presented as evidence of defendant's active participation in the effort to falsely persuade her landlord that she had been reassigned to military service in Kentucky, justifying the termination of her lease.
The audio recordings of the voice mail messages were admitted into evidence, but were not included in the appellate record.
In the first voice mail, defendant identified herself and provided her phone number, ending in 4602. She said, "I was just wondering if you got my fax. I'm actually already out um I'm having a friend of mine move the rest of my belongings[.]" She said, "My last day of work was last week and I've just been busy ever since." She told Koechlein that she could call her back at the 4602 number, "or I can give you my friend um Michele's telephone number. She's . . . pretty much um handling everything for me."
Although defendant stated she stopped working "last week," a police department witness testified that defendant continued to work as an Asbury Park police officer, and filled a regular assignment during July. Although she had July 15 and 16 off, employment records were admitted into evidence showing that defendant was on duty as a police officer at 4 p.m. on July 17. An Army witness also testified defendant completed her reserve obligation on June 4, 2009, so she had no current military service obligations.
In a second message that, from context, appeared to follow quickly after the first, defendant provided Koechlein with Michele Randon's telephone number. She stated, "[I]t's Liana Howard calling again. . . . I just wanted to give you my friend's um Michele, her last name is Randon . . . her telephone number is [ ]-6296." Defendant advised Koechlein that her own cell phone service "is actually um getting cut today[.]" A police witness who obtained defendant's cell phone record testified that defendant's cell phone service was terminated on July 15, 2009, effectively dating the second voice mail as being left on July 15, 2009.
In the third voice mail message, defendant stated she "of course [is] no longer in the apartment. . . . [S]omeone should be turning in the key by next Friday." She asked Koechlein to return her call at the 6296 number.
In the fourth voice mail message, defendant stated, "I've been out of the apartment for about a week and a half now." The fourth voice mail apparently followed the third, as by this time, defendant had acquired a "throw away cellular phone" and did not know the number.
Defendant also referred to a conversation she just had with "my friend Michele." She stated that Michele had power of attorney to act on defendant's behalf, as did defendant's parents. She gave Koechlein Randon's number as well as defendant's mother's number. Defendant represented that she was on her way to Kentucky. "I'm actually I'm driving[.] I'm on my way to Kentucky[.] I'm out of state[.]"
Koechlein testified that on July 17, the same day she received the fourth voice mail message, defendant and Koechlein actually spoke to each other by phone. Koechlein informed defendant that defendant had failed to pay rent in June and July, and that she breached the contract. Defendant explained to Koechlein that she was en route to a military base because she was being relocated. Koechlein testified she requested a copy of the military orders, which were faxed to her later that day. The order purported to require defendant to report to Fort Campbell, Kentucky on August 20, 2009, after a temporary assignment beginning August 7, 2009. When Koechlein received the military order, she felt "it didn't look as it should have," as she had seen military orders in the past.
Koechlein ultimately confirmed with military personnel that the document was a forged order. The forgery altered a 2007 order pertaining to the assignment of a person holding a paralegal position, and not a military police officer. Randon testified she altered the order which was originally directed to her, when she served in the military as a paralegal at Fort Campbell. She testified that she faxed the order to Koechlein, but did so with defendant's agreement.
Randon was called as a witness for the defense, apparently because in two pre-trial statements she asserted that she created the forgery and faxed it on her own. She stated she and defendant were best friends and Randon was aware of defendant's noise complaints. She stated that after defendant vacated her Pier Village apartment, she moved back in with her parents, who lived near Randon. She suggested she changed her version of events because her attorney, who was also her uncle, had convinced her that she should tell the truth. She testified that she received no promises regarding her sentence in return for her testimony.
Although Koechlein testified generally regarding the timing of the four voice mail messages, the State presented the testimony of Detective Richard Bruccoliere, a computer crimes detective from the prosecutor's office. Bruccoliere testified regarding when the voice mail messages were left. He explained, based upon his investigation and interview of the landlord's information technology manager, that the landlord maintained a system in which voice mail messages were attached as audio files to emails, which were sent to the intended recipient of the voice mail. Bruccoliere examined the properties screen accompanying the computer file of each voice mail. He stated that the first message's property file listed the "modified" time as July 15, 2009 at 12:51:58 p.m.; the second message's "modified" date was July 15 at 12:52:24 p.m.; the third message had a "modified" time of July 17 at 1:29:12 p.m.; and the fourth message had a "modified" time of July 17 at 2:10:38 p.m. The "created" date of the four messages was much later, coinciding with when the voice mail messages were copied for law enforcement investigators.
Although the emails apparently contained the date and time of delivery, the court barred the State from introducing them into evidence because of its failure to disclose them to the defense before trial.
The court overruled defendant's objection that Bruccoliere should not be permitted to explain the meaning of "modified" and "created" in the properties screen, particularly how the voice mails could be "modified" long before they were apparently "created." The court rejected defendant's argument that Bruccoliere's explanation would constitute expert testimony. Bruccoliere explained:
So when a file is created, originally created, it gets three date and time stamps:
Your created, your modified, and your accessed. Created refers to when it was placed on that piece of media. So if I create a Word document, say, on my laptop and I save it today's date, it gets all three date and time stamps. If tomorrow I come in and I take that Word document and I put it on a CD, it will get a new created date. That's the date that that's created on the media.
So I know it's a little bit difficult to understand. However, the modified date will always match the creation date, its original source. So, by putting it on a DVD, it could be a week from now, it will have the new created date, but that modified date will always reflect when it was originally created on my computer.
And access refers to the day you access it. So if I access it that day, it's going to give me a date and time stamp of that day.
On cross-examination, defense counsel elicited that Bruccoliere himself did not personally retrieve the voice mails from the server, and the "communication system, the way it worked, was explained to me by the information technology manager[.]" However, the detective stated he personally "observed the entire process." The court apparently did not permit the State to introduce into evidence the replicas of the screen views containing the properties of the voice mails; however, Bruccoliere testified regarding their substance.
In summation, defense counsel did not dispute that the orders were forged. He questioned whether the voice mail messages were left in mid-July 2009. He highlighted that in Koechlein's pre-trial statement, she asserted defendant vacated the apartment in June. Defense counsel also questioned whether the voice mails, in which defendant merely asked Koechlein if she received her fax (rather than the military order specifically), demonstrated defendant's involvement. The defense attorney also questioned Randon's credibility.
However, in a pre-trial statement Koechlein gave to police and about which she was cross-examined, Koechlein asserted that defendant resided in the apartment only ninety to one-hundred days. With an early April move-in date, that would imply she vacated the apartment in early July. At trial, Koechlein also explained that in her pre-trial statement, she meant defendant moved out around June to July.
The prosecutor's summation focused on defendant's noise complaints; the substance of the voice mails, which were identified as left by defendant; and Koechlein's testimony that defendant stated she was being transferred, and then the forged orders were submitted in response to Koechlein's request. The prosecutor also argued defendant falsely stated in the fourth voice mail on July 17, that she was going to Kentucky, though her employment records reflected she was on duty as an Asbury Park police officer at 4 p.m. that same day.
In response to defense counsel's statements about Randon's testimony, the prosecutor emphasized that defendant, and not the State, called Randon as a witness at trial. He also asserted that the jury "[didn't] have to believe her" to convict defendant because of other evidence presented. The prosecutor then stated:
When you don't tell the truth during the course of an investigation, that's not a good thing, of course. However, there's no penalty attached to that because you're not under oath. So in statement one to [detectives] . . . she did not put her hand on the oath to swear to tell the truth. . . .
And when I asked her why you, Michele Randon, initially took responsibility for this and said, all by yourself, you took sole responsibility for this, her answer was she wanted to protect Liana Howard, her best friend.
In a charge conference, the court had rejected defense counsel's request for a false-in-one-false-in-all instruction. However, in the course of his charge, he included the instruction.
Defendant appeals her conviction, and presents the following points on appeal:
I. THE TRIAL PROSECUTOR IMPROPERLY BOLSTERED THE CO-DEFENDANT'S MICHELE RANDON'S TESTIMONY.We reject these arguments and affirm.
II. THE TRIAL COURT ERRED IN DENYING FALSE IN ONE FALSE IN ALL JURY CHARGE ON THE ISSUE OF MICHELE RANDON'S TESTIMONY.
III. EXPERT TESTIMONY REGARDING THE VOICEMAILS WAS ERRONEOUSLY PERMITTED WITHOUT THE WITNESS BEING QUALIFIED AS AN EXPERT.
II.
We address first defendant's claim of prosecutorial misconduct. She asserts the prosecutor misstated the law when he stated, in summation, that Randon would suffer "no penalty" for lying in her pre-trial statement to police, but faced harsh consequences if she lied in her sworn testimony. We review the argument under a plain error analysis, as defendant did not interpose an objection. See State v. Papasavvas, 163 N.J. 565, 626 (2000) (stating that plain error standard must be applied where defense counsel did not object to statements alleged to constitute prosecutorial misconduct). Moreover, the failure to object to a summation argument suggests the alleged error was not consequential. State v. Ingram, 196 N.J. 23, 42 (2008) (citations omitted).
We agree that the prosecutor misstated the law. A person may be criminally liable for purposely making false statements to an investigating officer, as Randon admitted she had done. See N.J.S.A. 2C:29-1 (obstruction of justice); N.J.S.A. 2C:29-3 (hindering apprehension or prosecution). However, the misstatement does not warrant reversal.
"[R]eversal based upon prosecutorial misconduct requires an evaluation of the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Nelson, 173 N.J. 417, 460 (2002). In determining whether prosecutorial misconduct is egregious to justify reversal, this court must consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). As noted, no objection was raised.
We do not view the prosecutor's statement as vouching for Randon's credibility. Cf. State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.) (stating although a "prosecutor may argue that a witness is credible . . . [he or she] may not personally vouch for the credibility of a State witness or suggest that the witness's testimony has been 'checked out'" (citing State v. Marshall, 123 N.J. 1, 156 (1991))), certif. denied, 151 N.J. 466 (1997). The prosecutor did not assert that Randon's statements were independently verified, as in Marshall, supra, 123 N.J. at 156. The Marshall Court held the prosecutor's statement was improper because the prosecutor personally vouched for the witness's credibility, and "referr[ed] to matters outside the record" when he stated that the witness's statement had been verified. Ibid. Nor was the prosecutor's statement like that in State v. Walden, where the prosecutor's comments could be considered "an expression of the prosecutor's personal belief in Green's truthfulness," and the statement "implie[d] that the jury can accept the witness's credibility based upon information outside the trial evidence." 370 N.J. Super. 549, 561 (App. Div.), certif. denied, 182 N.J. 148 (2004).
The misstatement of law also did not pertain to an element of the offenses for which defendant was charged. Cf. State v. Lopez, 359 N.J. Super. 222, 232 (App. Div.) (reversing on grounds of plain error prosecutor's uncorrected misstatement of the law regarding drug distribution in drug prosecution), appeal dismissed, 178 N.J. 372 (2003); State v. Murray, 151 N.J. Super. 300, 310-12 (App. Div.) (reversing where prosecutor incorrectly stated law on possession in drug prosecution), certif. denied, 75 N.J. 541 (1977). Also, the court instructed the jury that its interpretation of the law, and not the attorneys', controlled. Generally, we presume a jury will follow the court's instructions. See State v. Burris, 145 N.J. 509, 531 (1996) ("the Court presumes that juries will understand and abide by the court's instruction as to the correct use of evidence" (citation omitted)), certif. denied, 152 N.J. 187 (1997) .
Under the circumstances, we do not view the prosecutor's statement to be "'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Williams, 168 N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Randon's inconsistency was apparent. Although Randon's trial testimony implicated defendant, the State did not call Randon as a witness, and was prepared to make its case without her.
We consider next defendant's argument the court erred in allowing Bruccoliere to testify about when defendant left her voice mail messages by interpreting the "modified" and "created" times in the properties screens accompanying each voice mail. "In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citation omitted) (reinstating trial court's decision to admit expert opinion); see also Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010) ("[T]he latitude initially afforded to the trial court in making a decision on the admissibility of evidence . . . requires that appellate review, in equal measures, generously sustain that decision, provided it is supported by credible evidence in the record."). The trial court exercises discretion in determining "[t]he necessity for, or propriety of, the admission of expert testimony, and the competence of such testimony[.]" State v. Zola, 112 N.J. 384, 414 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).
On appeal, an evidentiary decision should not be overturned "'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted.'" Brenman v. Demello, 191 N.J. 18, 31 (2007) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)) (reviewing decision applying N.J.R.E. 403); see also State v. Feaster, 156 N.J. 1, 82 (1998) (stating an appellate court will disturb an evidentiary ruling only if there has been a "clear error in judgment" or a ruling "so wide of the mark that a manifest denial of justice resulted" (citations and quotations omitted)).
Applying this deferential standard of review, we discern no basis to disturb Judge Mellaci's determination that expert testimony was not required to establish that the time and dates that the voice mails were "modified," as stated in the properties screen, reflected when defendant actually left the voice mails on the landlord's voice mail system. Bruccoliere was not offering an opinion. Nor was he explicating technical attributes of the voice mail files that were hidden, embedded, or unavailable to a computer user not technically proficient. The properties field, which includes the modified, created and accessed times, is accessible to the average computer user. Expert testimony is required when "the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable." Scully v. Fitzgerald, 179 N.J. 114, 127 (2004) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 283, (1982)).
Similar information is available to the user of a word processing program, Microsoft Word, simply by right-clicking on a document name in a directory, and selecting "Properties." The "created" and "modified" information is a form of "metadata", "frequently referred to as 'data about data' . . . that describes the 'history, tracking, or management of an electronic document.'" Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 354 (S.D.N.Y. 2008) (citation omitted).
--------
Bruccoliere explained "created" describes the time a file is placed in a particular media. The "modified" date does not change if the substance of the file is unchanged. So, when the voice mail messages were placed on the disks for investigators, it reflected a new "created" date on the disk, while the modified dates referred to July 15 and 17, 2009. We recognize that not every computer user may understand how a document can be "created" after it was "modified." However, the system is apparent to anyone who is attentive to how the properties field is recorded after a file is originally created and modified in one medium, and then saved in another. There is no claim that the "created" or "modified" dates were altered.
Finally, even if Bruccoliere should have been qualified as an expert to explain the meaning of "modified" and "created" in relation to the voice mails' history, the error was not "clearly capable of producing an unjust result." R. 2:10-2; see State v. Federico, 198 N.J. Super. 120, 131 (App. Div. 1984) (finding "[a]dmission of the complained of evidence was harmless error in view of the other similar proofs before the jury"), aff'd, 103 N.J. 169 (1986).
First, the voice mails could be dated based on Koechlein's testimony, and circumstantial evidence. As we discussed above, the first two voice mails appeared, based on their references to defendant's contact number, to follow quickly one after the other. In the second one, defendant asserted her phone service was being cut off that day. A police officer who obtained defendant's cell phone records testified that defendant's cell phone service was terminated July 15, thereby dating those two voice mails. Koechlein also testified that she spoke to defendant on July 17, 2009, the same day she received the fourth voice mail, thereby dating that voice mail. Based on the subject matter of the voice mails, it was apparent the third voice mail was also delivered between July 15 and July 17.
Second, there was substantial evidence of defendant's guilt, even absent precise dating of the voice mails. Koechlein testified that defendant claimed — falsely — that she vacated the apartment because she was transferred. Randon testified that defendant agreed that Randon should submit the forged military order. Defendant did not dispute that the order was a forgery. The evidence reflected that defendant was working on the day she claimed to be driving to Kentucky, ostensibly to assume a new military assignment. Randon also testified that after defendant vacated Pier Village, she moved back to her parents' home, and not to Kentucky. Moreover, the misrepresentation was played out against the backdrop of defendant's dissatisfaction with her apartment and her statement in mid-June that she wanted to leave.
Defendant's remaining point lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION