On appeal from Superior Court of New Jersey, Law Division, Union County.
Antell, Dreier and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
Defendant was indicted for theft by deception, contrary to N.J.S.A. 2C:20-4; theft by failure to make required Disposition of property received, contrary to N.J.S.A. 2C:20-9; misapplication of entrusted property, contrary to N.J.S.A. 2C:21-15; perjury, contrary to N.J.S.A. 2C:28-1; and false swearing, contrary to N.J.S.A. 2C:28-2a. During trial, the court dismissed the perjury charge and amended the false swearing charge to allege that the statutory provision violated by defendant was N.J.S.A. 2C:28-2c. A jury found defendant guilty of the remaining charges. The court merged defendant's convictions for theft by failure to make required Disposition of property received and misapplication of entrusted property into his conviction for theft by deception and sentenced him to a three year term of imprisonment. In addition, the court ordered defendant to make restitution of $7,637.50 to the victim of the theft. The court also imposed a concurrent nine month term of imprisonment on defendant's conviction for false swearing.
Defendant was a member of the bar of this State. His convictions for theft and misapplication of entrusted property
were based on the receipt of money from a client for legal services which were never performed and for an expert witness's fee and other litigation expenses which were not actually incurred. The client paid this money in connection with defendant's purported representation in a lawsuit brought by E.I. DuPont DeNemours and Company, Inc. Defendant's conviction for false swearing was based on his alleged knowingly inconsistent statements in testimony he gave before a Union County grand jury and in a certification he executed in connection with the DuPont litigation.
On appeal, the Public Defender has filed a brief on defendant's behalf which makes the following arguments:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S PRETRIAL MOTION TO SEVER THE COUNTS CHARGING PERJURY AND FALSE SWEARING.
II. THE TRIAL COURT COMMITTED PLAIN ERROR BY PROVIDING THE JURY WITH A VAGUE, AMBIGUOUS DEFINITION OF THE TERM "FIDUCIARY" (Not Raised Below).
III. THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO TRIAL BY JURY IN PERMITTING A GUILTY VERDICT BY A JURY THAT DID NOT UNANIMOUSLY AGREE UPON THE FALSITY OF THE STATEMENTS IN ISSUE (Not Raised Below).
IV. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY ON THE STATUTORY DEFENSE OF CLAIM OF RIGHT (Not Raised Below).
V. THE PROSECUTOR IMPROPERLY ATTACKED DEFENDANT'S TESTIMONY ON CROSS-EXAMINATION WITH QUESTIONS CONCERNING HIS FAILURE TO VOLUNTARILY PROVIDE RECORDS TO INVESTIGATORS (Not Raised Below).
VI. THE PROSECUTOR WAS IMPROPERLY PERMITTED TO CROSS-EXAMINE DEFENDANT WITH DOCUMENTS NOT SUPPLIED IN DISCOVERY.
In addition, defendant pro se has filed a supplemental brief which makes the following argument:
BY NOT CHARGING THE JURY AS TO THE CLAIM OF RIGHT DEFENSE, THE COURT BELOW EFFECTIVELY RELEASED THE PROSECUTION FROM ITS BURDEN OF PROOF, THEREBY DENYING THE DEFENDANT ESSENTIAL CONSTITUTIONAL RIGHTS.
We conclude that the trial court's instructions regarding false swearing improperly permitted the jury to return a non-unanimous verdict. Therefore, defendant's conviction for false swearing must be reversed. Defendant's other arguments are clearly without merit. R. 2:11-3(e)(2). Accordingly, we affirm defendant's conviction for theft by deception.
The New Jersey Constitution "presupposes a requirement of a unanimous jury verdict in criminal cases." State v. Parker, 124 N.J. 628, 633, 592 A.2d 228 (1991), cert. denied, U.S. , 112 S. Ct. 1483, 117 L. Ed.2d 625 (1992). However, the scope of the unanimity requirement is sometimes unclear. See State v. Parker, supra, 124 N.J. at 633-37, 592 A.2d 228; James J. McClure, Schad v. Arizona: Diminishing the Need for Verdict Specificity, 70 N.C.L.Rev. 936 (1992); Comment, Right to Jury Unanimity on Material Fact Issues: United States v. Gipson, 91 Harv.L.Rev. 499 (1977). On the one hand, it has been broadly stated that "the unanimity rule . . . requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged." United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir.1977). On the other hand, it has been stated that "plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." Schad v. Arizona, 501 U.S. , , 111 S. Ct. 2491, 2497, 115 L. Ed.2d 555, 565
(1991) (Souter, J., plurality opinion) (quoting McKoy v. North Carolina, 494 U.S. 433, 449, 110 S. Ct. 1227, 1236-37, 108 L. Ed.2d 369, 385 (1990) (Blackman, J., Concurring)).
One test used to determine whether a jury verdict is unanimous when a defendant is alleged to have committed separate acts, any one of which could constitute the offense charged, is whether those acts are "conceptually distinct." See United States v. Gipson, supra, 553 F.2d at 458; State v. Parker, supra, 124 N.J. at 646, 592 A.2d 228 (Pollock, J., Dissenting). Another test is whether a statute recognizes that a single offense may be committed by different means and those means are not "so disparate as to exemplify two inherently different offenses." Schad v. Arizona, supra, 501 U.S. at , 111 S. Ct. at 2503, 115 L. Ed.2d at 572 (Souter, J., plurality opinion); see also State v. Parker, supra, 124 N.J. at 634-35, 592 A.2d 228. In applying the latter test, "historical and contemporary acceptance of [a state's] definition of the offense and verdict practice is a strong indication that they do not [offend Due Process]." ...