July 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL GRANTHAM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-01-0042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges A. A. Rodriguez and Ashrafi.
Following a jury trial, defendant was convicted of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); ten counts of fourth-degree credit card theft, N.J.S.A. 2C:21-6(c)(1); one count of third-degree unlawful use of a credit card, N.J.S.A. 2C:21-6(d)(1); and one count of third-degree theft by deception, N.J.S.A. 2C:20-4. Trial Judge Robert C. Billmeier granted the State's motion for an extended term covering the theft conviction and the ten convictions for credit card theft, and imposed a ten-year term with a five-year parole ineligibility. The judge also imposed a consecutive five-year term subject to a two-and-a-half year parole disqualification for third-degree unlawful use of a credit card. We affirm.
These were the State's proofs. On August 11, 2007, at approximately 11:45 a.m., Carol Schoenberg and her six-year-old son arrived at a Panera Bread restaurant in Princeton for lunch. Schoenberg removed her wallet from her pocketbook, retrieved a $20 bill to pay for her food, and placed the wallet back into her pocketbook. After eating lunch, she left the store and noticed that her wallet was missing from her pocketbook, which she had placed underneath the table where she had eaten lunch. At that time, she reported the theft to the Princeton Borough Police Department, including a description of the credit cards stored in her wallet. She also contacted her credit card companies. She then learned that one of her credit cards had been used at a Lowe's Home Center store in West Windsor to purchase two $1,000 gift cards and two cans of bug spray. The purchases totaled $2017.06. This transaction had taken place at 12:55 p.m., on the same day Schoenberg noticed the wallet missing.
Later that day, Princeton Borough Police Sergeant Jonathan Bucchere went to Panera Bread to investigate the theft, and reviewed the restaurant's videotape surveillance footage. According to him, the footage showed a black male wearing a white and black striped shirt standing behind Schoenberg at the time she paid for her food. Then the man sat at a table behind Schoenberg. There the videotape showed the man bent down and placed his jacket over Schoenberg's chair. Also, the videotape purportedly showed the man engaged in a brief conversation with a female wearing light blue clothing.
Bucchere asserted that he asked Panera Bread to preserve the entire footage. However, Panera Bread did not keep the portion of the videotape that showed Schoenberg in line at the ordering counter.
Two days later, West Windsor Detective Stephen J. Skwierawski asked Lowe's to check its surveillance archives to locate the transaction involving Schoenberg's credit card. He watched the tape, which depicted the same female who was present at Panera Bread using Schoenberg's credit card.
On September 24, 2007, Princeton Borough Police Detective Michael Bender sent still photographs of the two suspects to other police departments. Subsequently, a West Windsor Police Department sergeant identified the male suspect as defendant. Detective Bender obtained an arrest warrant and sent it to defendant's last known address. Princeton Borough Police Detective Sergeant Christopher Quaste interrogated defendant in a recorded interview. During the interrogation, Quaste showed defendant the Panera Bread surveillance videotape. According to Quaste, at one point, he froze a shot of the female accomplice. Defendant identified her as "Kim Porter." Quaste was never able to locate a "Kim Porter." During the interrogation, defendant asserted that he received a portion of the proceeds from the transaction at Lowe's.
On appeal, defendant contends:
THE STATE VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AS RECOGNIZED IN BRADY V. MARYLAND WHEN IT FAILED TO COLLECT AND PRESERVE THE EXCULPATORY PORTIONS OF THE PANERA BREAD VIDEOTAPE.
Defendant argues that the State violated the rule articulated in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), by failing to "collect and preserve all material portions" of the Panera Bread surveillance tape. Defendant argues that the jury should have seen other portions of the tape showing that "other individuals had an equal opportunity to take Ms. Schoenberg's wallet."
Because the State had relied heavily on the video, the result of the proceeding would have likely been different had the jury been shown the omitted portions. We disagree.
Defendant did not object to the introduction of the surveillance video at trial. Therefore, the plain error rule applies. That is, we will reverse only where the error was "clearly capable of producing an unjust result." R. 2:10-2.
It is a deprivation of an accused person's due process rights for the State to suppress exculpatory material evidence. Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218; see also R. 3:13-3(c) (governing criminal defendant's right to discovery from prosecution).
We conclude that defendant did not demonstrate a violation of his Brady rights because the police never had possession of a small portion of the surveillance video that showed defendant standing in line behind the victim of the theft, and nothing in the record indicates that the missing footage contained exculpatory evidence. Furthermore, the police did not act in bad faith in failing to obtain the entirety of the surveillance recording before Panera Bread failed to preserve that part of the recording.
Defendant also contends:
THE TRIAL COURT ERRED WHEN IT ADMITTED THE PANERA BREAD VIDEOTAPE INTO EVIDENCE AS
THE STATE FAILED TO PROPERLY AUTHENTICATE SAID VIDEOTAPE.
Defendant argues that the Panera Bread surveillance footage was not properly authenticated because Detective Bucherre was not present at Panera Bread at the time of the crime and the State did not offer the testimony of anyone from the restaurant to describe the tape's "creation" or segregation. Although we agree that Detective Bucherre was not qualified to authenticate the video, it was not plain error because Schoenberg later authenticated the video as an accurate representation of the August 11, 2007 events.
Defendant did not object to the introduction of the surveillance video at trial, so, pursuant to Rule 2:10-2, this court will reverse only for plain error.
A party seeking to authenticate evidence must simply introduce evidence "sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. The actual person filming the video is not the sole person qualified to authenticate the video. See State v. Wilson, 135 N.J. 4, 14-15 (1994) (approving authentication of motion pictures in the same manner as photographs). Rather, any witness with sufficient personal knowledge can "verify that the [video] accurately represents its subject." Id. at 14.
For example, in State v. Nemesh, 228 N.J. Super. 597, 603
n.3 (App. Div. 1988) the defendant argued on appeal that a video depicting him taking a breathalyzer test was improperly authenticated at trial. We disagreed, noting that because a police officer "testified that the tape accurately and faithfully depicted the administration of the breathalyzer test and the physical tests as he saw them," the video was validly authenticated. Ibid.
The Supreme Court affirmed this method of authentication in Wilson. There, the State offered a video made by police that retraced the steps of a defendant as he allegedly robbed a store. Wilson, supra, 135 N.J. at 9-10. A detective who assisted with the video, but who was not present at the scene of the crime, authenticated the video. Id. at 10. On appeal, the Supreme Court held that this was insufficient. Id. at 190. Instead, the Court explained that the detective could have authenticated the video had he been present at the time of the crime, so that he could testify that the video accurately portrayed the events in question. Ibid. Similarly, two of the witnesses who were present at the time of the crime could have testified that the video "accurately represented the scene as they had witnessed it." Ibid.
Here, both Bucherre and Schoenberg authenticated the video. Because Bucherre did not see the events in question, defendant correctly argues that Bucherre was not qualified to authenticate the video as accurately depicting the scene.
Schoenberg, to the contrary, was the victim and had been present for the entire scene that was the subject of the video. According to the holding in Wilson, her testimony that the video represented an accurate depiction of her trip to Panera Bread on August 11, 2007, was sufficient to authenticate the video. Because no objection was raised to Bucherre's authentication and Schoenberg's subsequent authentication was proper, this error was not "clearly capable of producing an unjust result." R. 2:10-2.
Defendant further contends:
THE TRIAL JUDGE ABUSE[D] ITS DISCRETION WHEN IT DENIED DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE PRODUCED AT TRIAL. Defendant argues that his motion for a new trial should have been granted because the State did not prove beyond a reasonable doubt that he ever "physically [took] Ms. Schoenberg's wallet." We disagree.
Defendant moved pro se for a new trial before sentencing, arguing that the jury's verdict was against the weight of the evidence. Counsel for defendant argued at sentencing that "the video did not actually show [defendant] taking the purse or putting his hands in the purse or anything of that sort." The judge summarized the evidence when ruling on the motion. The jury had seen the video from Panera Bread; the surveillance video from Lowe's that showed defendant and his female accomplice using or buying the stolen credit cards; and the video of a police interview in which defendant admitted that, in the judge's words, "he didn't get very much out of this enterprise." Based on this evidence, the judge explained that "[i]t does not appear clearly and convincingly that the jury's verdict was a manifest denial of justice under the law."
Due to the standard of review in Rule 2:10-1 and the overwhelming evidence of defendant's guilt, we agree and further discussion is not merited. R. 2:11-3(e)(2).
Defendant also argues:
THE TRIAL COURT ABUSED ITS D[I]SCRETION WHEN IT IMPOSED CONSECUTIVE MAXIMUM SENTENCES.
Defendant contends that consecutive sentences were inappropriate because the two crimes for which he was convicted "were dependent on one another[,] shared a common objective" and had the same victim. We disagree.
Judge Billmeier imposed consecutive sentences because there were "two distinct crimes" that occurred at different times and in different places. Further, the elements of the crime of theft were different from those required for unlawful use of a credit card.
We review sentencing pursuant to an abuse of discretion standard. See State v. Roth, 95 N.J. 334, 364 (1984). Provided "substantial evidence" supports the judge's findings, reversal is only justifiable where the application of the sentencing guidelines "shocks the judicial conscience." Id. at 364-65; State v. Pierce, 188 N.J. 155, 166 (2006).
The Supreme Court articulated the following standard to guide a judge's decision whether to impose consecutive sentences:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous
(4) there should be no double counting of aggravating factors . . . .
[State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded by statute, N.J.S.A. 2C:44-5.]
Here, the judge found that the theft of the wallet from Schoenberg and the subsequent use of the credit card at Lowe's were two independent crimes with different objectives. Those findings are supported by the record. Defendant's bald assertion to the contrary is insufficient to demonstrate why the imposition of consecutive sentences should shock this court's conscience.
THE TRIAL COURT ABUSED ITS D[I]SCRETION WHEN IT GRANTED THE STATE'S MOTION FOR AN EXTENDED TERM.
Defendant contends that the imposition of an extended term for his conviction was improper because his criminal record does not contain "any violent or serious crimes." We disagree.
Judge Billmeier granted the State's motion for an extended term pursuant to N.J.S.A. 2C:44-3(a) for several reasons. Defendant had nine prior convictions and "a continuous life of committing economic crimes that . . . limited sentences [and] limited probation ha[ve] not deterred." This history combined with defendant's lack of remorse was sufficient for the judge to find defendant to be a persistent offender.
An abuse of discretion standard applies to this court's review of the judge's decision to impose an extended term. Pierce, supra, 188 N.J. at 166 n.4.
The State can move for the imposition of an extended term where the defendant that was convicted of a first, second or third degree crime and is a "persistent offender." N.J.S.A. 2C:44-3(a). A persistent offender is defined as:
[A] person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced. [Ibid.]
This requires the sentencing judge to "examine the defendant's prior record and his or her age at the time of any prior convictions." Pierce, supra, 188 N.J. at 162.
Contrary to defendant's assertions, neither N.J.S.A. 2C:44-3 nor subsequent judicial interpretation of that statute defines "persistent offender" to only include those defendants with a history of violent offenses. Indeed, the "protection of the public" standard on which defendant relies was abrogated in Pierce. 188 N.J. at 170. ("[A] finding of 'need to protect the public' is not a precondition to a defendant's eligibility for . . . [an] extended-term . . . .").
Here, defendant has a long criminal record beginning in 1989 which includes nine convictions for theft, theft by deception, credit card fraud, and receiving stolen property. These convictions are similar to the conviction at issue in this appeal and satisfy the criteria in N.J.S.A. 2C:44-3(a). The judge did not, therefore, abuse his discretion in imposing an extended term.
Defendant additionally contends:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED THE DEFENDANT'S REMOTE CONVICTIONS.
Defendant argues that the judge erred in admitting his prior convictions because of their "extreme remoteness." We disagree.
At the Sands*fn1 hearing, Judge Billmeier ruled that defendant's 1989 and 1990 convictions would not be admissible because of their remoteness. Defendant's argument that it was error to admit these convictions clearly misstates the record, as the judge did not admit these two convictions. As to defendant's other convictions, the judge found that the two 1994 convictions for theft by deception and criminal attempt were admissible because they were part of a "series of convictions through the years." The judge also admitted defendant's 1998, 1999 and 2005 convictions on the same grounds.
A Sands ruling is an evidentiary decision that this court reviews pursuant to the abuse of discretion standard. State v. Ramseur, 106 N.J. 123, 266 (1987). Only "clear error[s] of judgment" justify reversal. State v. DiFrisco, 137 N.J. 434, 496-97 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Although defendant did not testify at trial, the Supreme Court has held that a defendant's choice not to testify does not preclude appellate review of the Sands decision. State v. Whitehead, 104 N.J. 353, 361-62 (1986).
The State may impeach the testimony of a criminal defendant with his prior convictions. N.J.R.E. 609. Because prior convictions are irrelevant to the issue of a defendant's guilt, a Sands hearing must be conducted to determine which convictions will be admissible as relevant to the defendant's veracity as a witness. Prior convictions are inadmissible where their "probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice." Sands, supra, 76 N.J. at 147. Admissible convictions are "sanitized" by limiting the evidence of that conviction to the degree of the crime, the sentence and the date of the offense. State v. Brunson, 132 N.J. 377, 390-91 (1993).
The Court in Sands explained that "[t]he key to exclusion is remoteness." 76 N.J. at 144. The remoteness of a conviction, however, does not depend solely on the "passage of time," but also includes the nature of the crime. Ibid. Because a defendant's prior conviction is admissible only to impeach the defendant's veracity as a testifying witness, convictions involving a "lack of veracity, dishonesty or fraud should be considered as having a weightier effect . . . ." Ibid.
Here, defendant's contention that his prior convictions were too remote to be admitted is without merit. Defendant's admissible convictions included theft by deception in 1994; theft by deception and credit card fraud in 1998; receiving stolen property and credit card fraud in 1999; and two convictions for theft in 2005. These crimes all involved dishonesty and fraud and were particularly relevant to defendant's veracity, and many had occurred within the last ten years. Thus, the judge did not abuse his discretion in ruling that sanitized evidence of these convictions could be admitted to impeach defendant if he testified.
Defendant also contends:
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED [DEFENDANT] TO MAXIMUM SENTENCES AS THE TRIAL COURT FAILED TO FIND MITIGATING FACTORS AMPLY SUPPORTED BY THE RECORD.
Defendant argues that he presented sufficient evidence to justify application of the excessive hardship mitigating factor in his favor. N.J.S.A. 2C:44-1(b)(11). We disagree.
Defendant's counsel did not argue that incarceration would cause excessive hardship. Instead, defendant addressed the judge and explained that a long sentence would prevent him from caring for and seeing his two minor children. Nevertheless, the judge did not find the presence of any mitigating factors.
We accord great deference to a judge's imposition of a sentence, overturning that sentence only where it constitutes a "patent and gross abuse of discretion." Roth, supra, 95 N.J. at 364 (internal quotations omitted). Provided "substantial evidence" supports the application of the aggravating and mitigating factors, a sentence justifies reversal only where it is within the sentencing guidelines but "shocks the judicial conscience." Ibid.
Before sentencing, a defendant may introduce evidence to show that "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11). As with the aggravating factors, a mitigating factor must only be considered where it is "supported by credible evidence." State v. Dalziel, 182 N.J. 494, 505 (2005).
Here, defendant's presentence report indicates that although he has two minor children, he does not have primary custody of those children or pay support for them. Further, his third child is an adult. Thus, the record does not demonstrate that defendant's incarceration would cause excessive hardship to his dependents.