NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5467-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KIMBERLY A. WATSON, a/k/a KIMBERLY WATSON,
Defendant-Appellant. _________________________
Submitted September 27, 2021 – Decided July 18, 2022
Before Judges Sumners, Vernoia and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 15-06- 0426.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Andrew J. Bruck, Acting Attorney General, attorney for respondent (Daniel Finkelstein, Deputy Attorney General, of counsel and on the brief).
PER CURIAM A jury convicted defendant Kimberly A. Watson of second-degree theft
by unlawful taking, N.J.S.A. 2C:20-3(a). At sentencing, the court imposed a
nine-year prison term with a three-year period of parole ineligibility, and
ordered defendant pay $2,606,856 in restitution.
Defendant appeals from her conviction and sentence, arguing the court
erred by: denying her motion to dismiss the single-count indictment on speedy
trial grounds; denying her motion to suppress her statements to the police during
a custodial interrogation; granting the State's motion for admission of evidence
prepared by Sears, Roebuck and Co. (Sears), her employer and the victim of the
alleged theft; denying her motion to strike testimony as an inadmissible expert
opinion; improperly instructing the jury concerning its review of the recording
of defendant's statement to the police during deliberations; imposing an
excessive sentence; and ordering restitution without a restitution hearing.
Having considered the parties' arguments, the record, and the guiding legal
principles, we affirm in part, reverse in part, and remand for a new trial.
I.
A grand jury charged defendant in an indictment with second-degree theft
by unlawful taking, N.J.S.A. 2C:20-3(a). The indictment alleged that between
June 1, 2012 and October 16, 2014, defendant unlawfully took or exercised
A-5467-18 2 control over Sears's property valued in excess of $75,000. At the time of the
alleged offense, defendant was employed by Sears as an inventory clerk at its
Logan Township distribution center. As part of her job duties, defendant was
responsible for the distribution center's inventory and the delivery of products
sold from Sears's retail locations.
The genesis of the criminal charge against defendant was an investigation
made by Sears's loss prevention unit, in conjunction with the Logan Township
Police Department (LTPD) and the Gloucester County Prosecutor's Office, into
a report of an alleged "scheme" by "[a]n employee . . . [who] had defrauded
Sears to the tune of millions of dollars . . . in retail products from the distribution
center."
On October 16, 2014, following the interdiction of a "fraudulent delivery"
of Sears merchandise by law enforcement, defendant was interviewed by Sears
loss prevention personnel. James Perillo, a Sears regional loss prevention
manager, participated in the interview of defendant. Perillo testified at trial that
during the interview, defendant admitted to arranging to have Sears merchandise
fraudulently delivered to individuals who had not paid Sears but who instead
paid a percentage of the merchandise's retail price directly to her. Defendant
A-5467-18 3 told Perillo she had done this for "approximately two years" and she had caused
a "loss to the company" in the millions of dollars.
After her interview with the Sears loss prevention unit, defendant was
brought to the LTPD for what turned out to be a custodial interrogation. The
interrogation was recorded and conducted by Sergeant Joseph Lombardo of the
LTPD and Detective Brin Wilden of the Gloucester County Prosecutor's Office.
The recording was played for the jury during defendant's trial.
Wilden testified that during the interrogation defendant was advised of her
Miranda1 rights, and waived those rights. Wilden also testified defendant
explained how, beginning in 2012, she utilized her access to Sears's computer
system and inventory to create orders which caused Sears merchandise to b e
delivered to individuals who had not paid Sears, but who instead paid defendant
a percentage of the retail price of the merchandise. Immediately following the
interrogation, the LTPD arrested defendant and charged her with second-degree
theft.
On June 10, 2015, the grand jury returned the indictment against
defendant. Almost two years later, on May 26, 2017, the court heard argument
on defendant's motions to dismiss the indictment on speedy trial grounds and to
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-5467-18 4 suppress her statements to the police during the custodial interrogation at the
police station.
On the same day, the court also heard argument on the State's motion for
leave to admit at trial five reports compiling information that had been
automatically entered into Sears's computer system as orders were processed or
were otherwise contemporaneously entered in the system. More particularly,
the court considered the State's request for permission to admit the following
exhibits at trial: S-1, a report containing certain "record[s] of returns"
documenting customer returns or exchanges that Sears created using "quer[ies]"
to search its business records; S-2, which was similarly created by Sears through
the use of queries to search its business records, and which contained certain
"CME 78's," or "credit memo transactions" which are used by Sears to maintain
and adjust the records of its inventory; S-3, a report of "fraudulent records of
returns," which consolidated the records in S-1 and S-2 and matched fraudulent
records of return to their corresponding credit memo transactions; S-4, which
contained payroll records, in particular, the "time card records for [defendant]"
A-5467-18 5 showing the times she was working at the Sears distribution center; and S-5,
which contained "screenshots of a particular delivery transaction."2
In support of its motion for leave to admit the exhibits, the State presented
Perillo as a witness, and the State argued the exhibits were admissible as Sears's
business records under N.J.R.E. 803(c)(6), or alternatively, under N.J.R.E. 1006
as summaries of documents, which would amount to "tens of thousands of"
pages if individually printed. The court granted the State's motion, finding S-1
through S-5 admissible as business records, N.J.R.E. 803(c)(6), and,
alternatively, as summaries of documents, N.J.R.E. 1006.
The court also denied defendant's motion to suppress her statements to the
police made during the police station interrogation. The court rejected
defendant's contention her statements should be suppressed because the police
officers failed to scrupulously honor her invocation of the right to counsel. The
court found that defendant's statement to the police, "Do you remember on that
thing that you were asking me at the time I was wondering if I could speak with
a lawyer before I went any farther," did not constitute an invocation of her right
2 We note the appellate record does not include exhibits S-1 to S-5. See R. 2:6- 1(a)(1)(I) (requiring the appellant's appendix or any joint appendix on appeal include "such . . . parts of the record . . . as are essential to the proper consideration of the issues"). A-5467-18 6 to counsel. The court also reasoned that even if the statement constituted an
equivocal invocation of the right to counsel, the officers properly sought
clarification from defendant about her intentions to proceed with or without
counsel, and defendant indicated she wished to continue the interrogation
without counsel.
The court also denied defendant's speedy trial motion, addressing the
factors pertinent to a determination of the request under the standard established
in Barker v. Wingo, 407 U.S. 514, 530 (1972).3 The court made findings as to
each of the factors and determined they did not weigh in favor of a finding
defendant's right to a speedy trial had been violated under the totality of the
extant circumstances.
The court conducted defendant's jury trial over six days in March 2019.
The State presented three witnesses. Wilden testified about the investigation
into defendant's fraudulent deliveries and the police station interrogation of
defendant during which she described how she committed the theft of Sears's
merchandise. The recording of the interrogation was played for the jury.
3 In Barker, the United States Supreme Court identified four factors that should be balanced to determine whether a defendant has been deprived of the right to a speedy trial: "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530. A-5467-18 7 The State's second witness, Edwin Sam, was a night shift supervisor at the
Sears distribution center where defendant worked. He explained he allowed
defendant to use his password to access Sears's computer system, and he did not
have any involvement with the entry or modification of records of return or
credit memo transactions. Sam's testimony corroborated statements made by
defendant during the police station interrogation, during which she admitted to
using Sam's password to create fraudulent orders. Based on Sam's testimony,
the State argued that any records of return or credit transaction memos entered
under his employee identification number in the Sears system were entered by
defendant.
The State's final witness, Perillo, testified about the Sears loss prevention
unit's investigation into the fraudulent deliveries. He testified concerning
defendant's inculpatory statements during the initial October 16, 2014 interview
conducted by Sears loss prevention personnel. He also testified about exhibits
S-1 through S-4—exhibits the court determined were admissible under N.J.R.E.
803(c)(6) and N.J.R.E. 1006—and he explained how the exhibits demonstrated
fraudulent deliveries were entered on at least eleven days defendant worked and
totaled $172,383 in losses to Sears. He also defined the terminology used in
exhibits S-1 through S-3 as part of his explanation concerning the information
A-5467-18 8 shown in the exhibits. He further testified the fraudulent deliveries were charged
to Sears's "online business" to conceal the percentage of merchandise lost to the
company.
Defendant did not present any witnesses at trial. The jury found defendant
guilty of second-degree theft by unlawful taking of property in excess of
$75,000. As noted, the court imposed a nine-year prison term with a three-year
period of parole ineligibility and ordered that defendant pay $2,606,856 in
restitution to Sears. The court did not conduct a restitution hearing. Its
restitution order was based on the prosecutor's interpretation of the information
contained in exhibits S-1 through S-3.
Defendant presents the following arguments for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN FAILING TO STRIKE THE IMPERMISSIBLE EXPERT AND ULTIMATE OPINION TESTIMONY OF A LAY WITNESS.
POINT TWO
THE ADMISSION INTO EVIDENCE OF SEARS'[S] REPORTS, SPECIFICALLY MADE TO INVESTIGATE AND PROVE THE ALLEGED CRIMINAL ACTIVITY OF [DEFENDANT], AND THE TESTIMONY ABOUT THOSE REPORTS FROM A SEARS EMPLOYEE WHO DID NOT
A-5467-18 9 MAKE THOSE REPORTS, VIOLATED [DEFENDANT]'S RIGHT TO CONFRONTATION.
POINT THREE
THE TRIAL COURT'S ADMISSION OF [DEFENDANT]'S STATEMENT VIOLATED HER CONSTITUTIONAL RIGHT TO COUNSEL. U.S. Const. Amends. V, XIV; N.J. Const. [a]rt. I, [¶] 1.
POINT FOUR
THE TRIAL COURT VIOLATED [DEFENDANT]'S RIGHT TO A FAIR TRIAL BY INSTRUCTING THE JURY THAT IT COULD NOT HEAR PARTS OF HER STATEMENT.
POINT FIVE
THE EXCESSIVE TIME DELAY OF ALMOST 4.5 YEARS BETWEEN [DEFENDANT]'S ARREST AND TRIAL VIOLATED HER RIGHTS TO A SPEEDY TRIAL AND TO DUE PROCESS. (U.S. Const. Amends. VI and XIV; N.J. Const. (1947), [a]rt. I, [¶] 10; R. 3:21-4.)
POINT SIX
THE TRIAL COURT ERRED IN FAILING TO HOLD A RESTITUTION HEARING AND IN IMPOSING $2,606,856[] IN RESTITUTION.
POINT SEVEN
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
A-5467-18 10 II.
We first address defendant's challenge to the court's denial of her motion
to dismiss the indictment on speedy trial grounds. "The right to a speedy trial
is guaranteed by the Sixth Amendment to the United States Constitution and
imposed on the states by the Due Process Clause of the Fourteenth Amendment."
State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North
Carolina, 386 U.S. 213, 222-23 (1967)). This "right . . . attaches upon
defendant's arrest." Ibid. (quoting State v. Fulford, 349 N.J. Super. 183, 190
(App. Div. 2002)); State v. Szima, 70 N.J. 196, 199-200 (1976).
Speedy trial claims are governed by the Barker four-factor balancing test,
which, as noted, requires consideration of the "[l]ength of delay, the reason for
the delay, the defendant's assertion of his [or her] right, and prejudice to the
defendant." 407 U.S. at 530; State v. Cahill, 213 N.J. 253, 258 (2013); Szima,
70 N.J. at 201. In applying this standard, "a trial court must weigh the 'societal
right to have the accused tried and punished' and a defendant's right to be
prosecuted 'fairly and not oppressively.'" Tsetsekas, 411 N.J. Super. at 10
(quoting State v. Dunns, 266 N.J. Super. 349, 380 (App. Div. 1993)). "No single
factor is a necessary or sufficient condition to the finding of a deprivation of the
A-5467-18 11 right to a speedy trial"; instead, "the factors are interrelated, and each must be
considered in light of the relevant circumstances of each particular case." Ibid.
We review the court's assessment and balancing of the Barker factors
deferentially, see Doggett v. United States, 505 U.S. 647, 652 (1992), and we
will reverse a trial court's determination as to whether a defendant has been
deprived of a speedy trial "only if the court's determination is clearly erroneous,"
Tsetsekas, 411 N.J. Super. at 10 (citing State v. Merlino, 153 N.J. Super. 12, 17
(App. Div. 1977)). While we "have been loath to sponsor the more severe
sanction of dismissal because the demands of justice require adjudications on
the merits to the greatest extent possible," State v. Farrell, 320 N.J. Super. 425,
447 (App. Div. 1999), where there is a violation of the right to a speedy trial,
"dismissal of the indictment . . . is the only possible remedy," Barker, 407 U.S.
at 522.
Defendant does not challenge any of the court's factual findings
supporting its denial of her speedy trial motion; she instead claims the court
erred in weighing the Barker factors and the factors required dismissal of the
indictment. She argues there were lengthy delays following her arrest; the
reason for the delays was largely "due to the [S]tate's failure to provide
discovery to the defense"; she asserted her right to a speedy trial in October 2014
A-5467-18 12 and June 2015; and she suffered prejudice during the pendency of the charges
due to difficulty obtaining employment and supporting herself, excessive legal
fees, and the "extreme anxiety and humiliation" brought on by "excessive court
dates and waiting for trial." We reject defendant's arguments and affirm the
court's denial of her speedy trial motion.
Defendant claims the length of the delay in bringing the matter to trial
weighs in favor of dismissal. She was arrested in October 2014, and the court
heard her motion to dismiss on speedy trial grounds thirty-one months later in
May 2017. Our Supreme Court has "recognized that longer delays can be
tolerated for serious offenses or complex prosecutions," and it has held that
"once the delay exceeds one year, it is appropriate to engage in the analysis of
the remaining Barker factors." Cahill, 213 N.J. at 265-66. Additionally, our
Supreme Court has expressly declined to establish a fixed amount of time in
which a defendant must be tried or in which defendant's speedy trial rights are
presumptively violated. Id. at 269.
Here, the court found the length of the delay in bringing the matter to trial
was at least in part explained by the complexity of the case against defendant.
Although defendant was charged in a single count, the court noted defendant
was accused of causing millions of dollars of losses to Sears over the course of
A-5467-18 13 more than two years, and Sears was required to review several thousand
fraudulent transactions to determine the nature and extent of defendant's actions.
Defendant does not dispute the court's finding or that the nature of the crime
charged required consideration of thousands of transactions occurring over a
multi-year period.
Moreover, consideration of the interrelated second factor, the reason for
the delay, supports the court's conclusion the length of the delay was not
unreasonable. Under Barker's second factor, reason for the delay, "because of
the imprecision of the right to speedy trial, the length of delay that will provoke
such an inquiry is necessarily dependent upon the peculiar circumstances of the
case." Barker, 407 U.S. at 530-31; Cahill, 213 N.J. at 265 ("[T]he lapse of time
that might trigger a violation of the constitutionally guaranteed speedy trial right
depends on the nature of the charges lodged against the defendant"). As noted,
defendant was charged with committing an extensive course of unlawful takings;
allegedly involving thousands of transactions over the course of two years, all
of which she attempted to conceal. See Barker, 407 U.S. at 531 ("The delay that
can be tolerated for an ordinary street crime is considerably less than for a
serious, complex conspiracy charge"); State v. Gaikwad, 349 N.J. Super. 62, 88
A-5467-18 14 (App. Div. 2002) (holding "the complexity of the subject matter of the case"
may render a delay reasonable).
The court also found additional reasons for the delay, many of which were
attributable to defendant. "[A]ny delay that defendant caused or requested
would not weigh in favor of finding a speedy trial violation." State v. Long, 119
N.J. 439, 470 (1990) (quoting State v. Gallegan, 117 N.J. 345, 355 (1989)). The
motion court found the proceedings were delayed by nine-months due to
defendant's prosecution of her application to drug court, and that "many of the
adjournments" of the trial related proceedings "were at the defense's request."
The requested adjournments were to allow defendant to obtain additional
discovery defendant sought from Sears that, as defendant conceded during the
motion hearing, was discovery not in the State's possession.
Again, defendant does not challenge the court's findings or point to a
single circumstance during the pretrial proceedings where actions by the State
resulted in an adjournment or delay. Cf. Barker, 407 U.S. at 531 (explaining
"deliberate attempt[s] to delay in order to hamper the defense should be
weighted heavily against" the State). And, the court affirmatively found,
"[t]here is absolutely no indication that the prosecution intentionally delayed the
proceedings to gain an unfair, tactical advantage."
A-5467-18 15 The court also considered Barker's third factor—defendant's assertion of
the right to a speedy trial. The court noted defendant included a request for a
speedy trial in her counsel's initial letter of representation and request for
discovery on October 20, 2014, and in a June 22, 2015 letter to the Gloucester
County Prosecutor's Office, but defendant did not file her speedy trial motion
until March 10, 2017.
In analyzing whether a defendant properly invoked his or her speedy trial
right, a court may consider "the frequency and force of the [defendant's]
objections." Barker, 407 U.S. at 529. "Whether and how a defendant asserts his
right is closely related" to the length of the delay, the reason for the delay, and
any prejudice suffered by defendant. Id. at 531.
Here, we are unable to assess the force of defendant's speedy trial requests
because the October 24, 2014 and June 22, 2015 letters to which the motion
court made reference, and upon which defendant relies, are not included in the
record on appeal. See R. 2:6-1(a)(1)(I); Soc'y Hill Condo. Ass'n v. Soc'y Hill
Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). Thus, we are unable to
determine if the demands were anything more than "pro forma" assertions of the
right to a speedy trial. See Barker, 407 U.S. at 528-29 (discouraging the
A-5467-18 16 attachment of "significant weight to purely pro forma" assertions of the right to
a speedy trial).
In any event, because there appears to be no dispute the letters included
some assertion of defendant's speedy trial right, the third factor weighs in
defendant's favor. See ibid. However, any weight under the third Barker factor
that might otherwise inure in defendant's favor is necessarily tempered, and
substantially so, by the court's finding that many of the delays were the result of
defendant's actions and requests, including her application to the drug court
program and the adjournments she sought to obtain discovery from Sears, and
the court's determination the State took no action to delay the proceedings.
Defendant cannot delay the proceedings, and, at the same time, claim she made
credible requests for a speedy trial that should be given great weight in the
analysis required under Barker. See generally id. at 527 (explaining "[i]f
counsel is willing to tolerate some delay because he finds it reasonable and
helpful in preparing his own case, he may be unable to obtain a speedy trial for
his client at the end of that time").
The court also found defendant did not demonstrate prejudice weighing in
favor of dismissal under Barker's fourth factor. "[P]rejudice is assessed in the
context of the interests the [speedy trial] right is designed to protect," Cahill,
A-5467-18 17 213 N.J. at 266, including "prevention of oppressive incarceration, minimization
of anxiety attributable to unresolved charges, and limitation of the possibility of
impairment of the defense," ibid.
Here, defendant was not incarcerated while she awaited trial, and she
offered no evidence the delay in bringing the matter to trial impaired her ability
to defend her case. See Szima, 70 N.J. at 202 (rejecting a speedy trial claim in
part based on the fact a defendant was not incarcerated during the twenty-two-
month delay, and he claimed "no impairment to his ability to defend").
Moreover, defendant did not present the motion court with any competent
evidence she was unable to find work, was unable to support herself, incurred
an inordinate amount of legal fees, or suffered excessive anxiety or humiliation
as a result of the charge pending against her. We recognize that "significant
prejudice may . . . arise when the delay causes the loss of employment or other
opportunities, humiliation, the anxiety in awaiting disposition of the pending
charges, the drain in finances incurred for payment of counsel or expert witness
fees," Tsetsekas, 411 N.J. Super. at 13, but defendant does not cite to any
competent evidence, see R. 1:6-6, supporting her conclusory claims of prejudice.
Based on our review of the record and balancing of the applicable factors,
we find nothing "clearly erroneous" in the court's disposition of defendant's
A-5467-18 18 speedy trial claim. Tsetsekas, 411 N.J. Super. at 10. The court considered and
found the factors, balanced them, and concluded they did not warrant dismissal
of the indictment. Defendant offers no basis to reverse the court's determination.
III.
Defendant argues the court erred by denying her motion to suppress the
statements she made during the October 16, 2014 custodial interrogation. She
claims she invoked her right to counsel and Wilden failed to "scrupulously
honor" the invocation because he failed to cease questioning and he used her
request for counsel "as an opportunity to manipulate her into further
interrogation."
When reviewing a trial court's denial of a motion to suppress, our "scope
of review . . . is limited." State v. Ahmad, 246 N.J. 592, 609 (2021). We "must
uphold the factual findings underlying the trial court's decision so long as those
findings are supported by sufficient credible evidence in the record." Ibid.
(quoting State v. Elders, 192 N.J. 224, 243 (2007)). Factual findings of the trial
court should only be set aside when those findings are "clearly mistaken." State
v. Zalcberg, 232 N.J. 335, 344 (2018) (quoting State v. Hubbard, 222 N.J. 249,
262-63 (2015)). Factual findings based on "[v]ideo-recorded evidence is
reviewed under the same standard." State v. Hagans, 233 N.J. 30, 38 (2018)
A-5467-18 19 (citing State v. S.S., 229 N.J. 360, 381 (2017)). We owe no such deference to a
trial court's legal interpretations, which we review de novo. State v. Hathaway,
222 N.J. 453, 467 (2015).
The Fifth Amendment guarantees the "privilege against self-
incrimination," and the United States Supreme Court's opinion in Miranda, 384
U.S. at 444, provides the "framework for our analysis." State v. Alston, 204
N.J. 614, 619 (2011). Under Miranda, law enforcement must "advise suspects
subject to custodial interrogation that they possess certain fundamental rights,
including the right to an attorney—even an appointed attorney if they were
unable to afford one." State v. Rivas, ___ N.J. ___, ___ (2022) (slip op. at 27).
"[I]f the accused 'indicates in any manner and at any stage of the process that he
wishes to consult with an attorney before speaking there can be no questioning.'"
Alston, 204 N.J. at 619-20 (quoting Miranda, 384 U.S. at 444-45).
In this state, the privilege against self-incrimination "offers broader
protection that its Fifth Amendment federal counterpart." State v. O'Neill, 193
N.J. 148, 176-77 (2007). "Under our state law privilege against self-
incrimination, 'a suspect need not be articulate, clear, or explicit in requesting
counsel; any indication of a desire for counsel, however ambiguous, will trigger
entitlement to counsel.'" Rivas, ___ at ___ (slip op. at 27) (quoting Alston, 204
A-5467-18 20 N.J. at 622). "[I]f a suspect's 'words amount even to an ambiguous request for
counsel, the questioning must cease,' unless the officer makes additional neutral
inquiries that clarify that the suspect desires to waive the presence of counsel."
Id. at 27-28 (quoting Alston, 204 N.J. at 624). "[T]he State bears the burden to
show scrupulous compliance with" these requirements. State v. Dorff, 468 N.J.
Super. 633, 651 (App. Div. 2021).
In determining whether a suspect has invoked their right to counsel, the
court employs "a totality of the circumstances approach that focuses on the
reasonable interpretation of defendant's words and behaviors." State v. Diaz-
Bridges, 208 N.J. 544, 564 (2011). "[A]ny words or conduct that reasonably
appear to be inconsistent with defendant's willingness to discuss his case with
the police are tantamount to an invocation of the privilege against self-
incrimination." Alston, 204 N.J. at 622 (quoting State v. Bey, 112 N.J. 123, 135
(1988)). "[B]ecause the right to counsel is so fundamental, an equivocal request
for an attorney is to be interpreted in the light most favorable to defendant."
State v. Wright, 97 N.J. 113, 119 (1984).
If an ambiguous invocation is made, further questioning of a suspect is
only permissible if those further questions are aimed at clarifying the meaning
of the statement. Alston, 204 N.J. at 623. Such clarification is necessary where
A-5467-18 21 the statement "leave[s] the investigating officer 'reasonably unsure whether the
suspect was asserting that right.'" Diaz-Bridges, 208 N.J. at 564 (quoting State
v. Johnson, 120 N.J. 263, 283 (1990)). In clarifying the meaning of a suspect's
statement, an officer is limited "to neutral inquiries." Rivas, ___ N.J. at ___
(slip op. at 28). Critically, these clarifying inquiries must not "operate to delay,
confuse, or burden the suspect in his [or her] assertion of his rights." Alston,
204 N.J. at 623 (quoting Johnson, 120 N.J. at 283).
Measured against these principles, the officers conducting the October 16,
2014 interrogation failed to scrupulously honor what we find, and what the State
concedes, was defendant's equivocal invocation of her right to counsel. The
officers properly informed defendant of her Miranda rights at the outset of the
interrogation, but approximately twenty-one minutes after the interrogation
began, defendant made an ambiguous invocation of her right to counsel, and
Wilden's response impermissibly burdened defendant's assertion of that right.
Ibid.
Defendant disputes the accuracy of the transcript of the interrogation
relied on by the court in deciding the suppression motion, asserting the court
misconstrued what was said. We have reviewed the recording of the
interrogation that was considered by the court and, although we disagree with
A-5467-18 22 the court's legal conclusions concerning the admissibility of defendant's
statements, we accept the court's factual findings about what was said by
defendant in the "audio/video" recording of the interrogation. S.S., 229 N.J. at
381.
At the outset of the interrogation, after being advised of and
acknowledging her Miranda rights, defendant was asked by Wilden if she was
"willing" to "answer some more questions," and he informed her that whether
she did so was "entirely up to" her. He said he understood defendant told Sears
loss prevention personnel she thought she "might need a lawyer at some point"
and he asked if she wanted "to answer any . . . questions." She responded, "I
will try my best until—I need a lawyer." 4
In response to questions posed by Wilden, defendant then provided
inculpatory statements concerning actions she took while employed at the Sears
distribution center, including creating fraudulent deliveries in the Sears
computer system to be sent to individuals who paid her a percentage of the
delivered products' retail price. However, following these admissions,
approximately twenty-one minutes into the recorded statement, defendant broke
4 Defendant does not argue this statement constituted unambiguous invocation of her right to counsel. A-5467-18 23 off Wilden's questioning and said, "Do you remember on that thing that you
were asking me and at the time I was wondering if I could speak with a lawyer
before I went any farther."
We disagree with defendant's characterization of this statement as an
unambiguous invocation of her right to counsel because even viewed in the light
most favorable to defendant, we find the statement could have left Wilden
"reasonably unsure whether the suspect was asserting that right." Diaz-Bridges,
208 N.J. at 564 (quoting Johnson, 120 N.J. at 283). However, we find, and the
State concedes on appeal, defendant's statement, "I was wondering if I could
speak with a lawyer before I went any farther" constitutes an ambiguous
invocation of the right to counsel. See Dorff, 468 N.J. Super. at 649 (finding a
suspect's declaration "[t]hat's why I feel I might need a lawyer" to be an
invocation of their right to counsel).
Indeed, Wilden understood the statement as an equivocal invocation of
defendant's right to counsel. In response to defendant's statement, Wilden first
said, "Okay, [w]ell[,] that's up to you." That is, Wilden understood defendant's
statement as at least an ambiguous assertion of her right to counsel because he
told her "that[]"—the decision whether to have an attorney before she
continued—was up to her. Wilden then continued,
A-5467-18 24 since you mentioned lawyer [sic], that's why we communicated to you a lot of stuff earlier. If you feel like you need an attorney, I can't guide you either way on that. You can certainly understand that I can't do that. But if you want an attorney, absolutely we won't ask you any more questions, you can stop right now. That's up to you.
In response to Wilden's explanation, defendant then asked, "What's the
difference, I mean?"
Wilden answered defendant's question, stating:
Well[,] the difference is, like I said when we came in here, I said I don't know if there's still things that maybe we can try and get back for Sears because at this point there's a lot of stuff that's been delivered over the last two years that we're probably not going to be able to get back for Sears. And if there's any deliveries coming down the road in the future, maybe you can tell us, you know, at what point things are. Because the warehouse, a lot of this stuff, maybe if you tell us, maybe we can try and retrieve a substantial amount of inventory for Sears, it may help us in the long run. And we can go and we can say [defendant] was cooperative with us, she provided us with a statement detailing what she did, and she made her best effort to try and obtain some of the goods back or prevent more goods from going out that were scheduled for delivery, whether it's today, or tomorrow, or next week, or whatever the case may be. I don't know what the case is. Maybe there is stuff in there, maybe there's not. But you have to, if you want a lawyer, certainly we're not going to get you one now, we'll just stop asking you questions. But I can't recommend yes or no whether or not you need an
A-5467-18 25 attorney at this point. That's something you have to answer. I just want to put it out to you, hey look, I can't promise you anything. Like this thing we read earlier, we can't promise you, we can't threaten you with anything. I'm going to say I don't know what your situation is. If there's things you think you can get back, it might help when it comes down later on[,] six months from now, a year from now, whatever the case may be, hey look, you know what, she did make an effort to try and help us out to get things back. That's all.
[(Emphasis added).]
What is missing from Wilden's response to defendant's equivocal
invocation of her right to counsel is any effort to ask neutral clarifying questions
to determine whether defendant had, in fact, invoked her right to counsel. Rivas,
___ N.J. at ___ (slip op. at 27-28). Wilden's statements went well beyond the
limited scope of neutral questions that may be asked of a defendant who has
ambiguously invoked the right to counsel during a custodial interrogation. Ibid.;
Alston, 204 N.J. at 625-27. When confronted with the equivocal and ambiguous
invocation, the officers were "required either to cease questioning or to pose
only questions designed to clarify whether defendant was invoking her right to
consult with an attorney." Dorff, 468 N.J. Super. at 652. Wilden recognized
plaintiff's statement as an ambiguous invocation of her right to counsel, but he
never sought to resolve the ambiguity and clarify whether her statement was
A-5467-18 26 intended as an invocation of that right. See S.S., 229 N.J. at 382-83 (explaining
when a suspect's statement constitutes an ambiguous invocation of the right to
counsel "the interrogating officer must cease questioning and 'inquire of the
suspect as to the correct interpretation'" of the statement (quoting Johnson, 120
N.J. at 283)).
Wilden's lengthy statement offered defendant reasons she should speak
with him immediately, and outside the presence of counsel. Although he told
defendant he could not promise her anything if she answered his questions, he
nonetheless suggested defendant would benefit from cooperating because the
officers could then "go and . . . say [defendant] was cooperative with us." That
response impermissibly burdened defendant's assertion of her right to counsel.
Alston, 204 N.J. at 623.
In fact, the officers never clarified whether defendant's initial statement
constituted an invocation of her right to counsel. They simply never asked her
to clarify whether her statement was intended as such. Rather, in response t o
defendant's statement, Wilden ignored the putative invocation, shifted the
discussion to one about defendant's right to decide whether she wanted counsel,
attempted to persuade her it was in her interest to answer the questions without
counsel, and impermissibly suggested she would lose the benefit of providing
A-5467-18 27 cooperation if she delayed responding to his questions and ended the
interrogation to confer with counsel. That course of action was impermissible
because, following defendant's ambiguous invocation of her right to counsel, the
officers' only permissible task was to clarify whether defendant's statement
constituted an invocation of her right. That task was never completed by the
officers here.
The motion court therefore erred by denying defendant's motion to
suppress those portions of her statement following her equivocal invocation of
the right to counsel. We therefore must consider whether the error is harmless.
"The test for determining whether an error is harmless 'is whether there is a
reasonable possibility that the evidence complained of might have contributed
to the conviction.'" State v. Sanchez, 129 N.J. 261, 278 (1992) (quoting
Chapman v. California, 386 U.S. 18, 23 (1967)); see also R. 2:10-2 (providing
"[a]ny error . . . shall be disregarded by the appellate court unless it is of such a
nature as to have been clearly capable of producing an unjust result").
Based on our review of the evidence, we are convinced that introduction
of defendant's lengthy and detailed statements describing the manner in which
she committed the numerous thefts that comprised the offense for which she was
charged, as well as the amounts of the various thefts, contributed to her
A-5467-18 28 conviction. The State's case was otherwise founded on Perillo's testimony,
which is complicated, at times difficult to follow, and founded on his
interpretation of data from business records. Moreover, defendant's payroll
records show she was not present at the Sears distribution center on days some
of the alleged fraudulent deliveries were entered into the center's computers.
In our view, although defendant made general admissions of guilt during
her initial interview by the Sears loss prevention personnel and during the brief,
preliminary questioning at the police station following the administration of her
Miranda rights, any legitimate doubts the jury may have had about the strengths
of the State's record-based evidence discussed by Perillo during his trial
testimony, or on the evidence showing she was not working when the thefts were
committed, were effectively eliminated by the detailed information and
admissions defendant provided during the lengthy interrogation that followed
her equivocal invocation of her right to counsel. We therefore conclude the
admission of defendants' lengthy interrogation following her equivocal
invocation of her right to counsel was clearly capable of producing an unjust
result, and reverse defendant's conviction, R. 2:10-2; see O'Neill, 193 N.J. at
184; Sanchez, 129 N.J. at 278, and remand for a new trial.
A-5467-18 29 IV.
Defendant argues the court erred by admitting exhibits S-1 through S-3,
which, as noted, were prepared by Sears and used at trial to show fraudulent
transactions were entered on days defendant was working and the total loss
exceeded $75,000. Defendant argues the court erred by finding the exhibits
admissible under the business records exception, N.J.R.E. 803(c)(6), and under
the summaries of records exception, N.J.R.E. 1006, to the hearsay rule, N.J.R.E.
802. She further argues the admission of the exhibits violated her right to
confront the witnesses against her because Perillo did not create the reports and
the Sears employees who created the reports did not testify at trial. We review
the court's challenged evidentiary rulings for an abuse of discretion. State v.
Singh, 245 N.J. 1, 12 (2021).
We agree with defendant that exhibits S-1 through S-3 were not
admissible as business records under N.J.R.E. 803(c)(6). The business records
exception to the prohibition on hearsay provides that "[a] statement contained
in a writing or other record of acts" will be admissible when it is established the
record was: (1) "made at or near the time of observation"; (2) "by a person with
actual knowledge or from information supplied by such a person"; (3) "the
writing or other record was made in the regular course of business[;] and" (4)
A-5467-18 30 "it was the regular practice of that business to make such writing or other
record." N.J.R.E. 803(c)(6).
Printouts of records electronically stored and relied upon by businesses
will ordinarily satisfy the requirements of N.J.R.E. 803(c)(6), see, e.g. New
Century Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299, 327 (App. Div. 2014)
(printouts of credit card statements admitted where supported by certifications
of employees having personal knowledge of records and transactions); Garden
State Bank v. Graef, 341 N.J. Super. 241, 245-46 (App. Div. 2001) (finding a
bank's computer printouts of a customer's loan history admissible, and
explaining, "computers are universally used and accepted, have become part of
everyday life and work and are presumed reliable" (quoting Hahnemann Univ.
Hosp. v. Dudnick, 292 N.J. Super. 11, 16 (App. Div. 1996))).
However, although Perillo testified the underlying information shown in
exhibits S-1, S-2, and S-3, was obtained from business records satisfying the
requirements of N.J.R.E. 806(c)(6), none of the exhibits was prepared "at or near
the time of the occurrence"—the time the information was entered into the Sears
computer system—or prepared in "the regular practice of that business."
N.J.R.E. 803(c)(6). Although gleaned from business records, S-1 through S-3
were generated after the prosecution of defendant began, they contained
A-5467-18 31 information going back as far as two years prior to the initiation of the
prosecution, they were not prepared during the ordinary course of Sears's
business, and they did not satisfy the requirements for the admission of business
records under N.J.R.E. 803(c)(6). The court erred by finding those exhibits were
admissible as business records under N.J.R.E. 803(c)(6).
Nonetheless, exhibits S-1 through S-3 were properly admitted as
summaries under N.J.R.E. 1006, because they were "presented by a qualified
witness to prove the content of voluminous writings or photographs that cannot
conveniently be examined in court." In order to be admitted under the rule, "the
proponent shall make the originals or duplicates available for examination or
copying, or both, by other parties at a reasonable time and place or mode."
N.J.R.E. 1006. As Perillo established during his testimony at the Rule 104
hearing on the admission of the exhibits, the information contained in each
exhibit was reaped directly from records that qualify as business record under
N.J.R.E. 803(c)(6), and the exhibits themselves merely assembled and contained
summaries of portions of those business records pertinent to defendant's alleged
years-long thefts from the distribution center.
We are not persuaded by defendant's claim the exhibits were inadmissible
because she was denied access to the "underlying data." See N.J.R.E. 1006. The
A-5467-18 32 record is bereft of evidence of any refusal by Sears to make the underlying data
available to defendant, and the trial court otherwise expressly informed
defendant it would provide counsel with "the ability . . . to go look at all the
material that went into these documents and review them for trial," and advised
counsel he "should take that chance" and "have an expert" review the material.
A May 26, 2017 order further provided that "[d]efense counsel has [forty-five]
days to review the underlying documents from Sears." There is no evidence
Sears refused any effort by defendant to take advantage of the opportunity
provided by the court to review underlying data summarized in exhibits S-1
through S-3. The court therefore did not abuse its discretion by admitting the
exhibits under N.J.R.E. 1006.
We decline to address defendant's Confrontation Clause claim as to the
admission of exhibits S-1 through S-3 because she failed to raise the argument
at trial. See State v. Carrion, 249 N.J. 253, 273-74 (2021) ("By not demanding
the witness's testimony, the defendant waives his [or her] confrontation right.").
However, our determination does not preclude defendant from raising the issue
at any retrial on remand.
Defendant also argues Perillo's trial testimony regarding the content of the
reports amounted to inadmissible expert opinion testimony because he testified
A-5467-18 33 based on his experience rather than his personal observations, and he was not
qualified as an expert witness at trial. She further claims Perillo offered
impermissible ultimate opinion as to defendant's guilt.
Perillo was qualified by the court as an expert on the Sears computer
system, the company's record keeping, and its record retention policy at the
N.J.R.E. 104 hearing at which the court determined S-1 through S-3 were
admissible at trial. During his trial testimony, Perillo restated his qualifications
as an expert in those areas, but he was not offered as an expert. Without
objection, defendant nonetheless allowed Perillo to offer testimony concerning
the Sears computer system, retention system, and related issues, and waited until
his testimony was completed to move to strike it all as inadmissible expert
opinion.
To the extent Perillo offered expert opinion testimony, he should have
been properly qualified as an expert. See N.J.R.E. 702; see also Townsend v.
Pierre, 221 N.J. 36, 53 (2015) (explaining requirements for admission of expert
opinion testimony). It is, however, unnecessary to decide whether any error in
the admission of any expert opinion testimony he may have offered constituted
harmless error, see, e.g., State v. Hyman, 451 N.J. Super. 429, 457 (App. Div.
2017) (finding failure to qualify witness as an expert was harmless error wh ere
A-5467-18 34 the evidence otherwise established the witness was an expert); State v. Kittrell,
279 N.J. Super. 225, 236 (App. Div. 1995) (holding "[b]ecause enough evidence
was presented to qualify [the witness] as an expert in this area, the trial court's
error in failing to specifically qualify him as an expert was harmless"), because
on remand the court shall consider anew whether any testimony that may be
offered by Perillo or any other witness constitutes expert opinion and whether
the proffered witness qualifies to provide the opinion under N.J.R.E. 702.
Defendant also argues Perillo improperly offered testimony as to
defendant's guilt while describing the content of the exhibits in two instances.
Relying on information in the reports marked as exhibits S-1 through S-3, Perillo
testified, "we had a number of fraudulent transactions for [records of returns]
for deliveries that Ms. Watson—that we thought Ms. Watson had done. She had
used somebody else's number at that time[,]" and "[w]hat Ms. Watson was
doing, she was charging another unit—she was charging our online
business . . . so [the] Swedesboro inventory would balance."
We do not consider the merits of defendant's argument because she did
not object to Perillo's testimony at trial and the issue does not go to the court's
jurisdiction or involve a matter of great public interest. See State v. Robinson,
200 N.J. 1, 20 (2009). Nonetheless, we remind the court that at any trial on
A-5467-18 35 remand, a witness shall not be permitted to offer testimony expressing "a belief
in defendant's guilt" or "an opinion on matters that [are] not beyond the
understanding of the jury." State v. McLean, 205 N.J. 438, 463 (2011); see also,
State v. Watson ___ N.J. Super. ___, ___ (App. Div. 2022) (slip op. at 83)
(explaining "it is impermissible for a police witness to testify at trial as to
defendant's guilt or an ultimate issue to be decided by the jury").
Defendant also argues the court erred by instructing the jury that if it
sought a playback of defendant's recorded interrogation by the police, it would
be required to review the entire recording. This instruction was founded on the
court's understanding it was not technologically possible to play only the
specific portions of the recording that might be requested by the jury during its
deliberations.
Although they "have broad discretion as to whether and how to conduct
read-backs and playbacks," trial "[c]ourts should honor a jury's specific request
to hear only limited parts of a witness'[s] testimony." State v. Miller, 205 N.J.
109, 122-23 (2011) (emphasis added). Here, defendant did not object to the
court's statement to the jury, and, for that reason, and also because we remand
for a new trial, we do not consider the merits of her argument. See Robinson,
A-5467-18 36 200 N.J. at 20. In any event, at any retrial the court shall assess the technology
and, to the extent reasonable and practicable, impose upon the parties the
obligation to present recordings in a format permitting the playing of only those
portions requested by a jury during deliberations.
Defendant's final arguments address the court's sentencing following her
conviction. These issues are mooted by our remand for new trial. We note only
that in the event defendant is convicted on remand, the court shall conduct a
hearing to determine the appropriate amount of restitution if it orders restitution
as a condition of the sentence imposed. State v. Paladino, 203 N.J. Super. 537,
547 (App. Div. 1985).
To the extent we have not expressly referred to or addressed any of
defendant's remaining arguments, we find they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part, reversed in part, and remanded for a new trial. We do
not retain jurisdiction.
A-5467-18 37