STATE OF NEW JERSEY v. JOANNE E. SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4271-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOANNE E. SCOTT,

Defendant-Appellant.

_____________________________________

July 6, 2011

 

Submitted February 9, 2011 Decided

 

Before Judges Fisher, Sapp-Peterson and Simonelli.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-06-00681.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Charles P. Savoth, III, Designated Counsel, on the brief).

 

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

PER CURIAM

Following a jury trial, defendant Joanne Scott was convicted of third-degree theft by unlawful taking from the person, N.J.S.A. 2C:20-3a, and third-degree conspiracy, N.J.S.A. 2C:5-2a(1), (2). The charges stemmed from defendant's involvement in a purse snatching scheme on February 24, 2007, with co-defendant Deanna Bush, who pled guilty and testified against defendant at trial. We affirm.

We derive the following facts from the evidence presented at trial. Bush and defendant agreed to engage in purse snatchings. Bush would steal a purse, defendant would act as a lookout or distract the victim, and they would split the money. In furtherance of their agreement, the pair engaged in purse snatchings at the Super Fresh store in Evesham Township on February 22 and 24, 2007.

On February 22, 2007, Bush drove defendant to the store in Bush's 1992 yellow Oldsmobile station wagon, which had wood grain side panels. After the two women entered the store, Bush stole a purse from Regina O'Hara. Bush exited the store through the left exit and defendant exited through the right exit. They both entered the station wagon and drove away. O'Hara did not see the theft occur; however, the incident was captured on video surveillance.

Laurie Phillips, who was sitting in her parked car outside of the store, saw an old tan or yellow station wagon with old brown side panels back up into a parking spot in front of her car. She also saw two individuals, whose hands were empty, exit the station wagon and walk into the store. A few minutes later, Phillips saw the individuals walking rapidly from the store with a pocketbook in their possession. They jumped into the station wagon and "took off." Phillips then entered the store and reported what she saw.

On February 24, 2007, Bush and defendant returned to the same store in Bush's yellow station wagon. After entering, defendant distracted Natalie Phelan as Bush stole the woman's purse. Bush then exited the store; however, an individual grabbed her and tried to get the purse. Bush threw the purse at the individual, ran away, and left in her car. Phelan did not see defendant, and she only saw the back of the person who stole her purse; however, the incident was captured on video surveillance.

Charles Yoos saw two women, later identified as defendant and Bush, in the store on February 24, 2007, and found their behavior "a little strange." After hearing that someone's purse had been stolen, Yoos rushed to the front door and looked toward the parking lot, where he saw a woman run toward and enter a yellow station wagon with wood side panels. He wrote down the vehicle's license plate number.

Kathleen Lannon was also in the store on February 24, 2007. She was waiting on line to pay for her groceries when she heard someone screaming and saw two men run out of the store. She followed the men to a brown station wagon that was "an older model, with wood on it, brown and tan[,]" which left the parking lot with a woman in the driver's seat. After the car left, Lannon spoke to defendant, who admitted that the driver of the station wagon was her friend. Defendant added, "I wouldn t do anything . . . I wasn't I just came from the ride."

The police arrived at the store and handcuffed defendant. The following exchange later occurred between defendant and Detective Jammie Clements from the Evesham Township Police Department:

[CLEMENTS]: . . . Can you tell me what happen [sic] today?

 

[DEFENDANT]: Nope I'm done.

 

[CLEMENTS]: You're done?

 

[DEFENDANT]: Yup ya'll can take me down [to jail].

 

[CLEMENTS]: Ok do you wish to give me a statement today?

[DEFENDANT]: Nope.

 

[CLEMENTS]: Ok like I said you are looking at conspiracy uh at the bare minimum but you can help yourself out by giving us a statement.

 

[DEFENDANT]: I already did.

 

[CLEMENTS]: You already gave a statement?

 

[DEFENDANT]: I said everything that happened and nobody believe [sic] me [they're] gonna tell me somebody was involved that wasn t there. I don t even know what the heck was going on until I didn t know what was going on until I was [--]

 

[CLEMENTS]: Like I said that's why, when you first came into contact it was with the patrol division they called me in to get an official statement from you. If you had no involvement in that that's fine. Obviously we know that you came with this girl Dee. You already told patrols that you came with Dee.

 

[DEFENDANT]: Yes I did yeah I didn t know what was going on[,] I didn t know that that was the plans or whatever.

 

[CLEMENTS]: Ok so you saying you had no idea that was her plan [--]

 

[DEFENDANT]: No.

 

[CLEMENTS]: [--] of stealing the purse?

 

[DEFENDANT]: No.

 

Defendant was originally indicted for third-degree theft by unlawful taking from the person, N.J.S.A. 2C:20-3a (count one) and third-degree conspiracy, N.J.S.A. 2C:5-2a(1), (2) (count two) stemming from the February 24, 2007 theft; and third-degree theft by unlawful taking from the person, N.J.S.A. 2C:20-3a (count four), and third-degree conspiracy, N.J.S.A. 2C:5-2a(1), (2) (count five) stemming from the February 22, 2007 theft. Defendant moved to dismiss the indictment. The judge granted the motion as to counts one and two and denied it as to counts four and five.

In a subsequent indictment, a grand jury indicted defendant for third-degree theft by unlawful taking from the person, N.J.S.A. 2C:20-3a (count one), and third-degree conspiracy, N.J.S.A. 2C:5-2a(1), (2) (count two) stemming from the February 24, 2007 theft; and third-degree theft by unlawful taking from the person, N.J.S.A. 2C:20-3a (count three), and third-degree conspiracy, N.J.S.A. 2C:5-2a(1), (2) (count four) stemming from the February 22, 2007 theft. Defendant moved to dismiss this indictment, as well, based on prosecutorial misconduct for failing to present exculpatory evidence -- defendant's statement to Detective Clements -- to the grand jury. After reviewing defendant's statement and the evidence presented to the grand jury, the judge concluded the statement was not "clearly exculpatory evidence such that the failure to present it to the Grand Jury distorts the Grand Jury result[,]" and there was other sufficient evidence supporting an indictment.

The matter proceeded to trial. At the close of the State's case, defendant filed a motion pursuant to Rule 3:18-1 for judgment of acquittal on all counts. Relying on State v. Mancine, 124 N.J. 232 (1991), and State v. Lucas, 30 N.J. 37 (1959), defendant argued there was no corroborating evidence apart from Bush's confession or testimony on which a jury could convict defendant beyond a reasonable doubt. The judge denied the motion, finding there was other circumstantial evidence from which the jury could reasonably find defendant guilty on counts one and two relating to the February 24, 2007 theft. Although the judge found the evidence "much thinner" as to counts three and four relating to the February 22, 2007 theft, she concluded the circumstantial evidence was sufficient to corroborate Bush's testimony.

The jury found defendant guilty on both counts relating to the February 24, 2007 theft, and acquitted her on both counts relating to the February 22, 2007 theft. Thereafter, defendant filed a motion pursuant to Rule 3:18-2 for judgment of acquittal n.o.v., raising the same argument she raised on the Rule 3:18-1 motion. The judge denied the motion, concluding,

The totality of the evidence presented, which includes defendant's presence and association with Ms. Bush, along with the circumstantial evidence provided from other witnesses, enabled this jury to make its own determination as to what, if any inference, should be drawn about the defendant's involvement in the conspiracy to commit a theft.

 

After . . . I had the opportunity to review the evidence in this case in its entirety, . . . and giving the State the benefit of all of its favorable testimony, as well as all the inferences that could be drawn from that, I am satisfied that there . . . was, in this case, sufficient evidence to enable the jury to find that the State's charges were established, beyond a reasonable doubt, [beyond] the testimony of Ms. Bush, whether you consider it to be simply truthful testimony given it's part of a plea bargain, or a confession as argued by [defense counsel].

 

. . . .

 

It's clear to me, however, . . . that looking at all this evidence, it was sufficient to sustain a conviction both for theft and for conspiracy. And the motion for acquittal is denied.

 

It is against these facts that defendant raises the following contentions:

LEGAL POINT I

 

THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO DISMISS THE INDICTMENT DUE TO THE STATE'S REFUSAL TO PROVIDE DEFENDANT'S EXCULPATORY STATEMENT TO THE GRAND JURY, WHEN EXPRESSLY ASKED FOR SUCH INFORMATION BY A GRAND JUROR, CONSTITUTED PLAIN ERROR, NECESSITATING REVERSAL

 

LEGAL POINT II

 

THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTIONS FOR JUDGMENT OF ACQUITTAL

 

LEGAL POINT III

 

THE LOWER COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A FALSE IN ONE, FALSE IN ALL CHARGE TO THE JURY

 

 

I.

Defendant contends in Point I that the judge erred in denying her motion to dismiss the second indictment based on the State's failure to present her exculpatory statement to Detective Clements to the grand jury. We disagree.

"Whether an indictment should be dismissed or quashed lies within the discretion of the trial court." State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18 (1984). The trial court's discretion should only be "exercised . . . on the 'clearest and plainest ground'" and only when the indictment is "'palpably defective.'" Id. at 18-19 (quoting State v. Weleck, 10 N.J. 355, 364 (1952)); see also State v. Hogan, 144 N.J. 216, 228-29 (1996); State v. Perry, 124 N.J. 128, 168 (1991). The trial court's decision should not be overturned unless the court's discretion was "clearly abused." Hogan, supra, 144 N.J. at 229. However, our Supreme Court has "demonstrated a greater willingness to review grand jury proceedings where the alleged deficiency in the proceedings affects the grand jurors' ability to make an informed decision whether to indict." Ibid.

The Court has imposed only a limited duty on prosecutors "that is triggered only in the rare case in which the prosecutor is informed of evidence that both directly negates the guilt of the accused and is clearly exculpatory." Id. at at 237. In other words, "the prosecutor's duty arises only if the evidence satisfies two requirements: it must directly negate guilt and must also be clearly exculpatory." Ibid. Evidence that "directly negates guilt" is evidence that "squarely refutes an element of the crime in question . . . . " Ibid. Evidence that is "clearly exculpatory" must be reliable and of high exculpatory value. See id. at 237-38.

More importantly, "an accused's self-serving statement denying involvement in a crime, although such a statement directly negates guilt, ordinarily would not be sufficiently credible to be 'clearly exculpatory,' and need not be revealed to the grand jury." Id. at 238. Accordingly, the prosecutor engaged in no misconduct by not revealing defendant's statement. Thus, the judge did not abuse her discretion in denying defendant's motion to dismiss the second indictment.

II.

Defendant contends in Point II that the judge erred in denying her motions for judgment of acquittal. Relying primarily on Mancine, supra, 124 N.J. 232, defendant argues that in order to be connected to or associated with Bush's crimes, the State had to support Bush's testimony by other sufficiently corroborating evidence. Defendant also argues the State failed to prove all of the elements of the crimes because it did not satisfy the elements set forth in Model Jury Charge "Liability for Another's Conduct ([N.J.S.A.] 2C:2-6) Accomplice."

In reviewing a motion for judgment of acquittal at the close of the State's case pursuant to Rule3:18-1, this court uses the same standard as the trial judge. State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.), certif. denied, 144 N.J. 587 (1996); State v. Tarver, 272 N.J. Super. 414, 425 (App. Div. 1994). We must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)); see also R. 3:18-1; State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 81 (2002).

Under Rule 3:18-1, "the court 'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). "If the evidence satisfies that standard, the motion must be denied." Spivey, supra, 179 N.J. at 236.

In deciding a motion for judgment of acquittal n.o.v. pursuant to Rule 3:18-2 after the return of the guilty verdict, the trial court uses the same standard as that used to decide a motion for acquittal made at the end of the State's case. See State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, this court applies the same standard as the trial court. See State v. Kittrell, 145 N.J. 112, 130 (1996). Applying these standards, we discern no reason to disturb the judge's rulings.

"A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3a.

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

 

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

 

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

 

[N.J.S.A. 2C:5-2a.]

 

Thus, the crucial question in this case was whether the State produced sufficient evidence, direct or circumstantial, that defendant agreed with Bush to steal purses or to aid Bush in the planning or commission of the purse-snatchings.

Defendant's reliance on Mancine, supra, 124 N.J.232, and Lucas, supra, 30 N.J.37, is misplaced. In those cases, the defendants were convicted based on corroborated out-of-court confessions. That is not what occurred here. The State did not present evidence of an out-of-court confession; rather, Bush testified at trial about defendant's involvement in the crimes. Moreover, the record contains evidence corroborating Bush's testimony inculpating defendant in the purse-snatchings, such as evidence that defendant was in the store and in Bush's company when the thefts occurred. Where, such as here, substantial evidence exists to corroborate any part of the statement made, it merely serves to enhance its reliability. Mancine, supra, 124 N.J. at 251.

Moreover, "[i]t is settled law in New Jersey that a jury may convict . . . upon the testimony of an accomplice alone, if, in their judgment, it is entirely credible and worthy of belief." State v. Spruill, 16 N.J. 73, 78 (1954). "'[T]here is no rule of law at all that an accomplice cannot be believed unless he is confirmed.'" Id. at 80 (citation omitted). In addition, any issues posed by statements made by accomplices are "cured . . . by the defendant's ability to cross-examine the declarant." State v. Gross, 121 N.J. 1, 11-12 (1990).

We are satisfied that the evidence at the close of the State's case and following the guilty verdict was sufficient for a reasonable jury to find defendant guilty of third-degree theft by unlawful taking from the person and third-degree conspiracy stemming from the February 24, 2007 theft beyond a reasonable doubt. Accordingly, the trial court properly denied defendant's motions for judgment of acquittal.

III.

Defendant contends in Point III that the judge erred in denying her request for a "False in One - False in All" jury charge. She argues the charge was appropriate based on Bush's testimony that defendant created a distraction while Bush snatched a purse, which no other witness corroborated. We disagree.

Model Jury Charge (Criminal), "False in One - False in All" (1991), provides as follows:

If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.

 

The "False in One - False in All" charge is not mandatory; rather, it is within the judge's discretion to give this charge in situations where the judge "reasonably believes a jury might find a basis for its application." State v. Ernst, 32 N.J.567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). The charge may be given"when a witness intentionally testifies falsely as to some material fact." State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.), certif. denied, 33 N.J.109 (1960). To justify the charge, there must be willful falsification or "conscious falsehood," and the falsehood must be on a material, not a collateral, point. Ernst, 32 N.J.at 583.

We discern no error in the judge's failure to give the "False in One - False in All" charge. There is nothing in the record indicating Bush testified falsely as to a material fact. Moreover, the judge instructed the jury on credibility in general and on Bush's credibility in particular. Thus, the jury was already adequately instructed to consider any inconsistent statement in assessing Bush's credibility.

Affirmed.