STATE OF NEW JERSEY v. HEATHER L. WALLS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5176-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HEATHER L. WALLS,

Defendant-Appellant.

_______________________________

June 3, 2011

Submitted May 11, 2011 - Decided

Before Judges Cuff and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-02-00244.

Yvonne Smith Segars, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Kathleen E. Dohn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from her conviction for third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a. Defendant argues that the judge erred by (1) admitting into evidence summaries of two surveillance DVD tapes, and (2) allowing the jury to see the words "mishandled transaction" on one of the two tapes. We disagree and affirm.

The United States Post Office employed defendant as a sales and service associate (associate). After noticing repeated retail floor stock shortages, the Office of the Inspector General for the United States Postal Service sent Special Agent Francisco Morales to investigate. Morales's duties included investigating allegations of "fraud, waste, abuse, corruption, theft of postal funds, mail theft allegations, workers' compensation fraud, [and] any case for any allegation in which the postal service is the victim."

Morales investigated defendant and installed two covert video surveillance cameras on the premises to monitor defendant's conduct during sales transactions. Morales also installed a video text inserter, which allowed him to observe what each associate placed into the cash register system during a sale. Each associate has their own log-on identification number allowing Morales to run tendered transaction reports on a particular associate's transaction history. After comparing defendant's video surveillance conduct with her tender transaction report, Morales discovered eighty-five transactions that were mishandled and under-reported by defendant. Morales then made a summary of the eighty-five transactions found on the surveillance camera and a summary of defendant's actions closing out her register. Each summary compared defendant's actions with her tender transaction report.

During the jury trial, the State introduced into evidence the DVD showing defendant conducting eighty-five allegedly improper transactions; a second DVD showing defendant's actions closing out her register; and defendant's tender transaction report. The State then introduced into evidence Morales's summary comparing the first DVD with defendant's tender transaction report; and his summary comparing the second DVD with defendant's tender transaction report. The judge overruled defendant's objection to Morales's testimony regarding the summaries.

Defendant also objected to the admission of the DVD showing her conducting eighty-five allegedly improper transactions because it displayed a caption on the bottom of the screen entitled "[m]ishandled [t]ransaction." The judge overruled the objection and stated to the jury in his curative instruction:

Do you see the word mishandled? That word mishandled is a conclusory statement that relates to what the post office thinks occurred here. That's not dispositive of anything. That doesn't mean anything and must not be considered by you as being determinative of anything as it relates to [defendant's] conduct or the conduct of the post office. That's just the term that they use in compiling this information. It's not to be viewed by you as influencing your decision at all. Do you understand that? It should not prejudice the defendant in any way whatsoever. Do you understand that?

The jury found defendant guilty of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a. The judge sentenced defendant to a two-year term of probation with 120 days to be served in jail. The judge ordered defendant to pay $1121.09 in restitution to the United States Postal Service, and imposed the appropriate fines and penalties.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT IMPROPERLY ADMITTED MORALES' HIGHLY PREJUDICIAL HEARSAY INVESTIGATION REPORTS BECAUSE THAT EFFECT WAS TO ALLOW THE STATE'S ONLY WITNESS TO ACCOMPANY THE JURY INTO THE JURY ROOM

A. Morales' Investigation Reports Were Not Summaries Of Voluminous Records Pursuant To N.J.R.E. 1006

B. Morales' Investigation Reports Were Inadmissible Because They Were Prepared In Anticipation Of Litigation And They Were Offered By The Prosecution

POINT II

THE PLAY BACK OF VIDEO SURVEILLANCE FOOTAGE WITH THE CAPTION "MISHANDLED TRANSACTION" DISPLAYED TO THE JURY THROUGHOUT DEPRIVED WALLS OF A FAIR TRIAL

Defendant argues the judge abused his discretion in admitting Morales's summaries into evidence under N.J.R.E. 1006 because the underlying records were not voluminous; the summaries contained information not present in the underlying records; and Morales's summaries were police reports and were not admissible pursuant to N.J.R.E. 803(c)(6), as records of regularly conducted business activity. Defendant's arguments are without merit.

We grant substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a general rule, a trial court's evidentiary ruling will not be disturbed unless there is a clear abuse of discretion. Bd. of Educ., supra, 409 N.J. Super. at 430; Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

N.J.R.E. 1006 states:

The contents of voluminous writings or photographs which cannot conveniently be examined in court may be presented by a qualified witness in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The judge may order that they be produced in court.

Here, Morales, a qualified witness, summarized voluminous material that could not be conveniently examined in court. The camera surveillance DVDs contained approximately two hours worth of footage, while the tender transaction report consisted of 123 pages of material. The summaries condensed technical material, and all of the underlying reports were introduced into evidence and available for cross-examination. See Associated Metals & Mineral Corp. v. Dixon Chemical & Research Inc., 82 N.J. Super. 281, 307-10 (App. Div. 1963) (admitting summary testimony of accounting books measuring four inches thick from member of bookkeeping department), certif. denied, 42 N.J. 501 (1964); Heinzerling v. Goldfarb, 359 N.J. Super. 1, 13 (Law Div. 2002) (allowing nurse to summarize voluminous and technical medical records). Contrary to defendant's position, the summaries were not police reports and were not admitted under N.J.R.E.

803(c)(6). The summaries fully complied with N.J.R.E. 1006 and were properly admitted into evidence by the judge.

Next, defendant argues that the caption "mishandled transaction" on the video surveillance DVD deprived her of a fair trial and the judge's curative instruction magnified rather than corrected this error. Curative instructions should be given immediately, and specifically address any error in order to ameliorate any potential harm to defendant from inadmissible evidence. State v. Vallejo, 198 N.J. 122, 134-35 (2009). "The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." State v. Winter, 96 N.J. 640, 647 (1984). "[E]ven in the context of an error of constitutional magnitude, . . . [t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid. (internal citations and quotation marks omitted).

Here, the judge immediately provided to the jury a curative instruction. The judge called the caption a "conclusory statement," "was not dispositive of anything," and explained at least three times that the caption was not to be considered. Furthermore, the evidence against defendant was overwhelming. Thus, the curative instruction was adequate because the caption was not capable of producing "a verdict that could not otherwise be justly reached."