STATE OF NEW JERSEY v. GORDON FULLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

GORDON FULLER,

Defendant-Respondent.

__________________________________

October 29, 2014

Argued October 8, 2014 Decided

Before Judges Waugh, Maven, and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 11-11-0133 and 12-04-0073.

Daniel I. Bornstein, Deputy Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General, attorney; Mr. Bornstein, Perry Primavera, Deputy Attorney General, and Heather V. Taylor, Deputy Attorney General, of counsel and on the briefs).

Alan L. Zegas argued the cause for respondent (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the brief).

PER CURIAM

By leave granted, the State appeals the Law Division's September 10, 2013 order precluding it from introducing testimony concerning an interview of defendant Gordon Fuller by detectives from the Division of Criminal Justice (DCJ). We affirm in part, vacate in part, and remand to the Law Division for further proceedings consistent with this opinion.

I.

We discern the following facts and procedural history from the record on appeal. Fuller was chief operating officer of the Morristown and Erie Railroad (M&E). He is the subject of two indictments arising out of his employment at M&E. Both indictments resulted from an investigation begun by DCJ in 2010.

Indictment No. 11-1-0133-S charged Fuller with second-degree conspiracy, N.J.S.A.2C:5-2, N.J.S.A.2C:21-4.6(b); second-degree insurance fraud, N.J.S.A.2C:21-4.6(b); second-degree attempted theft by deception, N.J.S.A.2C:5-1(a)(1), N.J.S.A.2C:20-4(a); and fourth-degree falsifying or tampering with records, N.J.S.A.2C:21-4(a). The indictment is based on allegations that Fuller conspired with other M&E employees to create and submit an inflated insurance claim for damages resulting from a March 2005 accident in which a delivery truck skidded off the road and hit an M&E switch.

Indictment No. 12-04-0073-S charged Fuller and fellow M&E employee Willard Phillips with second-degree conspiracy, N.J.S.A.2C:5-2, N.J.S.A.2C:21-9(c), N.J.S.A.2C:21-34(a), N.J.S.A.2C:28-7(a)(2); second-degree misconduct by a corporate official, N.J.S.A.2C:21-9(c); second-degree theft by deception, N.J.S.A.2C:21-34(a); and third-degree tampering with public records or information, N.J.S.A.2C:28-7(a)(2). The second indictment alleges that between 2003 and 2010, Fuller and Phillips conspired to submit false certifications to the New Jersey Department of Transportation (DOT) to obtain over $820,000 in reimbursement under a DOT grant program. The State contends that the certifications were fraudulent because M&E never actually completed or paid for the work for which reimbursement was sought.

During the State's investigation, two DCJ detectives, David Salzmann and Michael Behar, decided to interview Fuller about issues related to the transactions that formed the basis of the charges eventually filed against him. At the time of the interview, the detectives believed they already had sufficient evidence to charge Fuller. Salzmann and Behar went to Fuller's home on May 6, 2011, at 8:50 a.m. They knocked on the door and asked to speak with him. Fuller invited the detectives into his home.

Prior to beginning the interview, the detectives did not advise Fuller that he was a target of their investigation, nor did they inform him of his Miranda1 rights, or ask if he wished to have a lawyer present. They knew at the time that an attorney was present during Fuller's earlier interview by the Morris County Prosecutor's Office.

The interview lasted until shortly after noon. When the detectives left, they advised Fuller to have his lawyer contact the deputy attorney general at DCJ who was overseeing the investigation.

The interview was not recorded. The detectives took notes, which have been produced to Fuller. Salzmann prepared a report that included the parts of the interview he thought would be useful to the State. Fuller did not make any explicit admission to criminal wrongdoing during the interview, but he made statements the State contends would help prove its case.

Following his indictment, Fuller filed a motion to dismiss the indictments and also to suppress the statements made during the May 2011 interview at his home. Fuller's motion to suppress was premised on his assertion that the detectives violated his constitutional rights by failing to explain his Miranda rights and obtain a waiver prior to starting the interview. Phillips and defendants in a related indictment also made motions to dismiss the indictments at the same time.

On June 6 and 7, 2013, the motion judge heard oral argument on the motions to dismiss and held an evidentiary hearing on Fuller's suppression motion. Salzmann was the only witness. He testified about the circumstances surrounding the interview, but not about Fuller's specific statements or the reasons the State found them incriminatory.

In an order dated September 10, the judge denied the motions to dismiss the indictments. A statement of reasons was attached to the order. Although he found no Miranda violation warranting suppression of Fuller's statements, the judge nevertheless precluded the State from using them as part of its case-in-chief. The judge precluded use of the statements based on N.J.R.E. 403, finding that their probative value was outweighed by their prejudice to Fuller. We granted the State's motion for leave to appeal.

II.

The State raises the following issues on appeal

THE TRIAL COURT CLEARLY ERRED WHEN IT USED N.J.R.E. 403 AS A BASIS FOR SUPPRESSING DEFENDANT'S FREE AND VOLUNTARY STATEMENTS TO POLICE

a. N.J.R.E. 403

b. Rule 3.17(a)

A.

We begin our analysis with the merits of the suppression motion.2 Miranda warnings are required "'when an individual is taken into custody or otherwise deprived of his [or her] freedom by the authorities in any significant way and is subject to questioning.'" State v. Stott, 171 N.J. 343, 364 (2002) (quoting Miranda, supra, 384 U.S. at 478, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726). "'[T]he critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, and the status of the suspect.'" Id. at 365 (quoting State v. P.Z., 152 N.J. 86, 103 (1997)). Exculpatory or inculpatory statements made while a defendant is in custody are not to be used in the prosecution's case-in-chief if defendant was not advised of his Miranda rights. State v. Nyhammer, 197 N.J. 383, 400-01, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009); State v. Brown, 352 N.J. Super. 338, 351 (App. Div.), certif. denied, 174 N.J. 544 (2002).

The test employed to determine whether a custodial interrogation has taken place is an objective one. State v. Barnes, 54 N.J. 1, 6 (1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 580, 24 L. Ed. 2d 525 (1970); State v. Cunningham, 153 N.J. Super. 350, 353 (App. Div. 1977). We consider the totality of the objective circumstances surrounding the police questioning, such as "the length of the interrogation, the place and time of the interrogation, the nature of the questions, the conduct of the police and all other relevant circumstances." State v. Coburn, 221 N.J. Super. 586, 595-96 (App. Div. 1987) (citation omitted), certif. denied, 110 N.J. 300 (1988); see also Stott, supra, 171 N.J. at 368. The analysis looks to whether objective evidence of the surrounding circumstances would lead a reasonable person to believe that he or she was free to leave. Stott, supra, 171 N.J. at 367-68; Coburn, supra, 221 N.J. Super. at 596.

The fact that a defendant was a prime suspect at the time of the interview is also not definitive, as our Supreme Court held in Nyhammer, supra, 197 N.J. at 406. In Nyhammer, the Court emphasized the import of the custodial aspect of the interrogation to determination of the Miranda issue.

Significantly, we are not aware of any case in any jurisdiction that commands that a person be informed of his suspect status in addition to his Miranda warnings or that requires automatic suppression of a statement in the absence of a suspect warning. The essential purpose of Miranda is to empower a person--subject to custodial interrogation within a police-dominated atmosphere--with knowledge of his basic constitutional rights so that he can exercise, according to his free will, the right against self-incrimination or waive that right and answer questions. Miranda, supra, 384 U.S. at 456-57, 86 S. Ct. at 1618-19, 16 L. Ed. 2d at 713-14. The defining event triggering the need to give Miranda warnings is custody, not police suspicions concerning an individual's possible role in a crime. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977) ("[P]olice officers are not required to administer Miranda warnings . . . because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.'"); Beckwith v. United States, 425 U.S. 341, 346-47, 96 S. Ct. 1612, 1616, 48 L. Ed. 2d 1, 7-8 (1976) ("It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the court to impose the Miranda requirements with regard to custodial questioning." (citation and internal quotation marks omitted)).

[Ibid.]

See also Stott, supra, 171 N.J. at 365 ("[T]he critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances[.]").

There is no doubt that Fuller was a suspect and that Salzmann believed there was sufficient evidence to procure an indictment against him prior to the start of the interview. However, the interview took place at Fuller's home, rather than a police station or one of DCJ's offices. The detectives asked to speak with Fuller and he invited them in. Fuller never asked them to leave and there is nothing in the record to suggest that the detectives would have refused to leave had he asked them to do so. He did not ask to have his lawyer present or seek to postpone the interview for that purpose.

Based on the law as outlined above, we conclude that the motion judge correctly determined that the detectives were not required to give Fuller Miranda warnings or inform him that he was a target of their investigation. For the same reason, Rule 3:17, which generally requires the recording of custodial interrogations, is inapplicable in this case. The judge appropriately denied relief on the grounds raised by Fuller in his motion to suppress.

B.

We now turn to the issue on which the motion judge based his decision to preclude use of the statement. In effect, the judge transformed Fuller's motion to suppress for constitutional reasons into a pre-trial motion in limine based on the Rules of Evidence. Such a pre-trial motion is a convenient vehicle for addressing evidential issues prior to trial. It allows the trial judge to consider complicated evidential issues with the benefit of written arguments and the time to consider the appropriate ruling outside the time constraints of an ongoing trial.

As a general matter, substantial deference is given to a trial judge's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). However, we conclude that the same level of deference is not applicable in the context of an evidential ruling made prior to trial, on the basis of an issue not raised by the parties, that is being reviewed on leave to appeal prior to commencement of the trial. Our review of legal issues is plenary. State v. Handy, 206 N.J. 39, 45 (2011).

Evidence is relevant when it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; State v. Wilson, 135 N.J. 4, 13 (1994). This test is broad and favors admissibility. See State v. Deatore, 70 N.J. 100, 116 (1976). In determining whether evidence is relevant, the inquiry focuses on "the logical connection between the proffered evidence and a fact in issue," State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990), or, stated differently, "whether the proffer 'renders the desired inference more probable than it would be without the evidence,'" State v. Davis, 96 N.J. 611, 619 (1984) (quoting Deatore, supra, 70 N.J. at 116). The evidence need not be conclusive in itself, but need only, when taken together with other evidence, make the existence of the fact sought to be proven more probable. Except as otherwise provided by the Rules of Evidence or other law, "all relevant evidence is admissible." N.J.R.E. 402.

At oral argument of the suppression motion, the judge raised the issue of whether the statements made by Fuller were subject to exclusion under N.J.R.E. 403, even though the issue had not been raised in Fuller's motion. The rule provides

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

The judge subsequently concluded that the probative value of Fuller's statements was outweighed by the prejudice their admission would cause to Fuller.

The judge explained his reasons as follows

There are only seven (7) times in the detective's report when Detective Salzman[n] put quotations around statements allegedly made by Mr. Fuller.[3] Those quoted statements were as follows: "Special funding"; "not to soak the State"; "Why would Bill have done this?"; "that the payment vouchers are submitted only after work is complete, it's right in the contract, reimbursed"; "I signed it because they put it in front of me."; "we don't do pro forma invoices for materials"; and "zeal and enthusiasm."

To understand any of those quoted remarks, the remarks need to be put in context and that will require Detective Salzman[n] to characterize what was taking place during the interview and what was being discussed. In other words, the recorded statements do not stand on their own.

Consequently, when viewed in full context, the statements the State seeks to offer against Defendant Fuller are not highly probative. The statements are not clear admissions and they need to be explained in context to be understood. The State correctly points out that normally statements by a defendant are highly probative and generally should not be excluded. See State v. Covell, 157 N.J. 554, 573-74 (1999). In this case, however, as already pointed out, we do not have defendant's verbatim statements. Moreover, Detective Salzman[n] cannot testify about a clear declaration made by Fuller.

In contrast, the testimony of Detective Salzman[n] regarding Defendant Fuller's alleged statements are potentially highly prejudicial. For the jury to accept the State's argument that the statements are admissions against his interest, they will have to accept the characterization of Detective Salzman[n] who is the State's leading investigator. Defendant argues that if Detective Salzman[n] was permitted to testify about Defendant Fuller's alleged statements, Defendant Fuller will be compelled to testify in order to put his statements in context. While such an argument can always be made by a defendant who has made a statement, here the argument has merit since we are not dealing with defendant's signed statement or a recorded statement. Instead, we are dealing with statements that were embodied in a written report prepared several years ago by the State's lead investigator.

In short, it would be substantially more prejudicial to allow Detective Salzman[n] to testify concerning this interview than it would be probative to the question of whether or not Gordon Fuller actually engaged in the crimes for which he has been indicted.

A statement made by the defendant in a criminal trial is admissible under N.J.R.E. 803(b)(1) without regard to whether it is against the defendant's interest. Such a statement must, however, be relevant. In addition, it is subject to exclusion under rules such as N.J.R.E. 403. See Covell, supra, 157 N.J. at 572-74.

The burden is on the party urging exclusion of evidence to convince the court that exclusion is warranted for one of the reasons established in N.J.R.E. 403. Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001). The moving party must demonstrate not only that evidence is unduly prejudicial, but also that the factors favoring exclusion substantially outweigh the probative value of the contested evidence. N.J.R.E. 403 (emphasis added).

"[E]vidence claimed to be unduly prejudicial is excluded only when its 'probative value is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." State v. Wakefield, 190 N.J. 397, 434 (quoting State v. Koskovich, 168 N.J. 448, 486 (2001)). We have observed that "[d]amaging evidence usually is very prejudicial but the question . . . is whether the risk of undue prejudice [is] too high." State v. Bowens, 219 N.J. Super. 290, 297 (App. Div. 1987). In considering whether to exclude evidence under N.J.R.E. 403, the judge must consider, among other things, whether or not there are other sources of proof available to the State that would make the evidence more or less necessary to the State's ability to prove the fact at issue. Covell, supra, 157 N.J. at 569; State v. Long, 173 N.J. 138, 164-65 (2002); State v. Stevens, 115 N.J. 289, 303 (1989).

In order to make the required analysis and exercise the broad judicial discretion inherent in N.J.R.E. 403, Covell, supra, 157 N.J. at 568-69, the judge requires a clear articulation of the relevance and probative value of the statement from its proponent4 and a clear articulation of the "undue prejudice" from its opponent. Our review of the appellate record in this case convinces us that the motion judge did not have sufficient information before him to make the required analysis. The admissibility of the statements came before him on a Miranda-based motion to suppress, not on a motion in limine filed by Fuller. For that reason, neither the State nor Fuller had reason to articulate fully their positions with respect to the relevance, probative value, or undue prejudice of Fuller's statements. Consequently, we conclude that a remand is necessary for further consideration on an expanded record.

As guidance for the judge on remand, we make the following observations concerning the judge's reasons for precluding the statements. The judge appears to have focused more on the manner in which the statements would be presented than on the content of the statements themselves. He was particularly concerned by the fact that the interview was not recorded and the summary report was not signed by Fuller. The judge was also concerned about the possibility that the detectives would have to explain the significance of the statements to the jury.

We have already held that the detectives were under no obligation to record the interview. R. 3:17. Consequently, their failure to do so cannot be a basis for finding that the introduction of the statements is unduly prejudicial. It is hardly uncommon in criminal cases for law enforcement officials to testify about evidence, including statements by defendants or witnesses, based on their recollection, sometimes as refreshed by a review of their notes, reports, or other writings, as appropriate.5 See N.J.R.E. 612. When such evidence is given, defense attorneys routinely seek to impeach the credibility of those law-enforcement witnesses by pointing out discrepancies between the testimony and the writings. As a result, juries are regularly required to determine whether defendants made statements or engaged in certain conduct attributed to them by law-enforcement officials or other witnesses. See Model Jury Charge (Criminal), "Statements of Defendant-Allegedly Made" (2010).

The motion judge was also concerned about the potential that someone might need to provide a context or explanation for Fuller's statements in order to demonstrate that they support the State's allegations of criminal wrongdoing. That may or may not be true, depending on the circumstances. Because the record does not provide sufficient factual background for making that determination, it is premature to do so. However, even if an explanation is needed, that does not make the evidence unduly prejudicial if there is an appropriate method of providing the context. That method could be the testimony of other fact witnesses, documentary evidence, or the testimony of expert witnesses. Police officers can, under certain circumstances, be qualified as expert witnesses at criminal trials. See State v. Odom, 116 N.J. 65 (1989). As long as the required facts are in evidence, the State can connect the facts during its opening and closing statements. Again, the record before us is insufficient to make such a determination.

Finally, the judge appeared to be concerned that the introduction of the statements could be prejudicial because it might compel Fuller to testify to provide an explanation of his statements. The introduction of most evidence implicating a defendant in criminal activity requires the defendant to weigh the relative merits of testifying or exercising the right not to do so. We find no reason to conclude that evidence is unduly prejudicial merely for that reason. Bowens, supra, 219 N.J. Super. at 297.

In summary, we find that the motion judge correctly determined that Fuller's Miranda rights were not violated when the DCJ detectives came to his house and interviewed him without giving Miranda warnings and seeking a waiver. We further determine that the detectives were under no obligation to record the statement or have it signed by Fuller under those circumstances. As a result, we affirm the order on appeal to the extent it denied Fuller's motion to suppress his statements on constitutional grounds.

However, we vacate the order to the extent it precluded the State from using Fuller's statements at trial on the basis of the judge's N.J.R.E. 403 analysis. As explained above, the issue was one raised by the judge sua sponte and it was determined without a sufficient record, including an adequate articulation of the relevance and probative value of the statements from the State and the nature of the undue prejudice from Fuller. We have outlined the nature of the appropriate factors the judge will have to weigh in exercising his N.J.R.E. 403 discretion on the basis of a sufficient record. We leave to the parties and, ultimately, the judge the question of whether the admissibility of the statements should be determined in the context of a renewed pretrial motion or at trial. We remand to the Law Division for further proceedings consistent with this opinion.

Affirmed in part, vacated in part, and remanded. We do not retain jurisdiction.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Although Fuller did not file a cross-appeal, we review this issue because an appeal is taken from the court's ruling rather than reasons for the ruling. We may rely on grounds other than those upon which the trial court relied. See State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002).

3 Actually, there are eight instances.

4 We reject the State's suggestion at oral argument that, even in the face of an objection, it has no obligation to articulate the relevance or probative value of the evidence it offers at trial.

5 Nevertheless, "[t]he admissible evidence is the recollection of the witness, and not the extrinsic paper." State v. Carter, 91 N.J. 86, 123 (1982).