STATE OF NEW JERSEY v. KIMBERLY A. WATSON (15-06-0426, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5467-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIMBERLY A. WATSON,

a/k/a KIMBERLY WATSON,

Defendant-Appellant.

_________________________

Submitted September 27, 2021 – Decided July 18, 2022

Before Judges Sumners, Vernoia and Firko.

On appeal from the Superior Court of New Jersey, Law

Division, Gloucester County, Indictment No. 15-06-

0426.

Joseph E. Krakora, Public Defender, attorney for

appellant (Monique Moyse, Designated Counsel, on the

brief).

Andrew J. Bruck, Acting Attorney General, attorney for

respondent (Daniel Finkelstein, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Kimberly A. Watson of second-degree theft

by unlawful taking, N.J.S.A. 2C:20-3(a). At sentencing, the court imposed a

nine-year prison term with a three-year period of parole ineligibility, and

ordered defendant pay $2,606,856 in restitution.

Defendant appeals from her conviction and sentence, arguing the court

erred by: denying her motion to dismiss the single-count indictment on speedy

trial grounds; denying her motion to suppress her statements to the police during

a custodial interrogation; granting the State's motion for admission of evidence

prepared by Sears, Roebuck and Co. (Sears), her employer and the victim of the

alleged theft; denying her motion to strike testimony as an inadmissible expert

opinion; improperly instructing the jury concerning its review of the recording

of defendant's statement to the police during deliberations; imposing an

excessive sentence; and ordering restitution without a restitution hearing.

Having considered the parties' arguments, the record, and the guiding legal

principles, we affirm in part, reverse in part, and remand for a new trial.

I.

A grand jury charged defendant in an indictment with second-degree theft

by unlawful taking, N.J.S.A. 2C:20-3(a). The indictment alleged that between

June 1, 2012 and October 16, 2014, defendant unlawfully took or exercised

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control over Sears's property valued in excess of $75,000. At the time of the

alleged offense, defendant was employed by Sears as an inventory clerk at its

Logan Township distribution center. As part of her job duties, defendant was

responsible for the distribution center's inventory and the delivery of products

sold from Sears's retail locations.

The genesis of the criminal charge against defendant was an investigation

made by Sears's loss prevention unit, in conjunction with the Logan Township

Police Department (LTPD) and the Gloucester County Prosecutor's Office, into

a report of an alleged "scheme" by "[a]n employee . . . [who] had defrauded

Sears to the tune of millions of dollars . . . in retail products from the distribution

center."

On October 16, 2014, following the interdiction of a "fraudulent delivery"

of Sears merchandise by law enforcement, defendant was interviewed by Sears

loss prevention personnel. James Perillo, a Sears regional loss prevention

manager, participated in the interview of defendant. Perillo testified at trial that

during the interview, defendant admitted to arranging to have Sears merchandise

fraudulently delivered to individuals who had not paid Sears but who instead

paid a percentage of the merchandise's retail price directly to her. Defendant

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told Perillo she had done this for "approximately two years" and she had caused

a "loss to the company" in the millions of dollars.

After her interview with the Sears loss prevention unit, defendant was

brought to the LTPD for what turned out to be a custodial interrogation. The

interrogation was recorded and conducted by Sergeant Joseph Lombardo of the

LTPD and Detective Brin Wilden of the Gloucester County Prosecutor's Office.

The recording was played for the jury during defendant's trial.

Wilden testified that during the interrogation defendant was advised of her

Miranda1 rights, and waived those rights. Wilden also testified defendant

explained how, beginning in 2012, she utilized her access to Sears's computer

system and inventory to create orders which caused Sears merchandise to b e

delivered to individuals who had not paid Sears, but who instead paid defendant

a percentage of the retail price of the merchandise. Immediately following the

interrogation, the LTPD arrested defendant and charged her with second-degree

theft.

On June 10, 2015, the grand jury returned the indictment against

defendant. Almost two years later, on May 26, 2017, the court heard argument

on defendant's motions to dismiss the indictment on speedy trial grounds and to

1

Miranda v. Arizona, 384 U.S. 436 (1966).

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suppress her statements to the police during the custodial interrogation at the

police station.

On the same day, the court also heard argument on the State's motion for

leave to admit at trial five reports compiling information that had been

automatically entered into Sears's computer system as orders were processed or

were otherwise contemporaneously entered in the system. More particularly,

the court considered the State's request for permission to admit the following

exhibits at trial: S-1, a report containing certain "record[s] of returns"

documenting customer returns or exchanges that Sears created using "quer[ies]"

to search its business records; S-2, which was similarly created by Sears through

the use of queries to search its business records, and which contained certain

"CME 78's," or "credit memo transactions" which are used by Sears to maintain

and adjust the records of its inventory; S-3, a report of "fraudulent records of

returns," which consolidated the records in S-1 and S-2 and matched fraudulent

records of return to their corresponding credit memo transactions; S-4, which

contained payroll records, in particular, the "time card records for [defendant]"

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showing the times she was working at the Sears distribution center; and S-5,

which contained "screenshots of a particular delivery transaction."2

In support of its motion for leave to admit the exhibits, the State presented

Perillo as a witness, and the State argued the exhibits were admissible as Sears's

business records under N.J.R.E. 803(c)(6), or alternatively, under N.J.R.E. 1006

as summaries of documents, which would amount to "tens of thousands of"

pages if individually printed. The court granted the State's motion, finding S-1

through S-5 admissible as business records, N.J.R.E. 803(c)(6), and,

alternatively, as summaries of documents, N.J.R.E. 1006.

The court also denied defendant's motion to suppress her statements to the

police made during the police station interrogation. The court rejected

defendant's contention her statements should be suppressed because the police

officers failed to scrupulously honor her invocation of the right to counsel. The

court found that defendant's statement to the police, "Do you remember on that

thing that you were asking me at the time I was wondering if I could speak with

a lawyer before I went any farther," did not constitute an invocation of her right

2

We note the appellate record does not include exhibits S-1 to S-5. See R. 2:6-

1(a)(1)(I) (requiring the appellant's appendix or any joint appendix on appeal

include "such . . . parts of the record . . . as are essential to the proper

consideration of the issues").

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to counsel. The court also reasoned that even if the statement constituted an

equivocal invocation of the right to counsel, the officers properly sought

clarification from defendant about her intentions to proceed with or without

counsel, and defendant indicated she wished to continue the interrogation

without counsel.

The court also denied defendant's speedy trial motion, addressing the

factors pertinent to a determination of the request under the standard established

in Barker v. Wingo, 407 U.S. 514, 530 (1972).3 The court made findings as to

each of the factors and determined they did not weigh in favor of a finding

defendant's right to a speedy trial had been violated under the totality of the

extant circumstances.

The court conducted defendant's jury trial over six days in March 2019.

The State presented three witnesses. Wilden testified about the investigation

into defendant's fraudulent deliveries and the police station interrogation of

defendant during which she described how she committed the theft of Sears's

merchandise. The recording of the interrogation was played for the jury.

3

In Barker, the United States Supreme Court identified four factors that should

be balanced to determine whether a defendant has been deprived of the right to

a speedy trial: "[l]ength of delay, the reason for the delay, the defendant's

assertion of his right, and prejudice to the defendant." 407 U.S. at 530.

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The State's second witness, Edwin Sam, was a night shift supervisor at the

Sears distribution center where defendant worked. He explained he allowed

defendant to use his password to access Sears's computer system, and he did not

have any involvement with the entry or modification of records of return or

credit memo transactions. Sam's testimony corroborated statements made by

defendant during the police station interrogation, during which she admitted to

using Sam's password to create fraudulent orders. Based on Sam's testimony,

the State argued that any records of return or credit transaction memos entered

under his employee identification number in the Sears system were entered by

defendant.

The State's final witness, Perillo, testified about the Sears loss prevention

unit's investigation into the fraudulent deliveries. He testified concerning

defendant's inculpatory statements during the initial October 16, 2014 interview

conducted by Sears loss prevention personnel. He also testified about exhibits

S-1 through S-4—exhibits the court determined were admissible under N.J.R.E.

803(c)(6) and N.J.R.E. 1006—and he explained how the exhibits demonstrated

fraudulent deliveries were entered on at least eleven days defendant worked and

totaled $172,383 in losses to Sears. He also defined the terminology used in

exhibits S-1 through S-3 as part of his explanation concerning the information

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shown in the exhibits. He further testified the fraudulent deliveries were charged

to Sears's "online business" to conceal the percentage of merchandise lost to the

company.

Defendant did not present any witnesses at trial. The jury found defendant

guilty of second-degree theft by unlawful taking of property in excess of

$75,000. As noted, the court imposed a nine-year prison term with a three-year

period of parole ineligibility and ordered that defendant pay $2,606,856 in

restitution to Sears. The court did not conduct a restitution hearing. Its

restitution order was based on the prosecutor's interpretation of the information

contained in exhibits S-1 through S-3.

Defendant presents the following arguments for our consideration:

POINT ONE

THE TRIAL COURT ERRED IN FAILING TO

STRIKE THE IMPERMISSIBLE EXPERT AND

ULTIMATE OPINION TESTIMONY OF A LAY

WITNESS.

POINT TWO

THE ADMISSION INTO EVIDENCE OF SEARS'[S]

REPORTS, SPECIFICALLY MADE TO

INVESTIGATE AND PROVE THE ALLEGED

CRIMINAL ACTIVITY OF [DEFENDANT], AND

THE TESTIMONY ABOUT THOSE REPORTS

FROM A SEARS EMPLOYEE WHO DID NOT

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MAKE THOSE REPORTS, VIOLATED

[DEFENDANT]'S RIGHT TO CONFRONTATION.

POINT THREE

THE TRIAL COURT'S ADMISSION OF

[DEFENDANT]'S STATEMENT VIOLATED HER

CONSTITUTIONAL RIGHT TO COUNSEL. U.S.

Const. Amends. V, XIV; N.J. Const. [a]rt. I, [¶] 1.

POINT FOUR

THE TRIAL COURT VIOLATED [DEFENDANT]'S

RIGHT TO A FAIR TRIAL BY INSTRUCTING THE

JURY THAT IT COULD NOT HEAR PARTS OF HER

STATEMENT.

POINT FIVE

THE EXCESSIVE TIME DELAY OF ALMOST 4.5

YEARS BETWEEN [DEFENDANT]'S ARREST AND

TRIAL VIOLATED HER RIGHTS TO A SPEEDY

TRIAL AND TO DUE PROCESS. (U.S. Const.

Amends. VI and XIV; N.J. Const. (1947), [a]rt. I, [¶]

10; R. 3:21-4.)

POINT SIX

THE TRIAL COURT ERRED IN FAILING TO HOLD

A RESTITUTION HEARING AND IN IMPOSING

$2,606,856[] IN RESTITUTION.

POINT SEVEN

THE TRIAL COURT ABUSED ITS DISCRETION BY

IMPOSING A MANIFESTLY EXCESSIVE

SENTENCE.

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II.

We first address defendant's challenge to the court's denial of her motion

to dismiss the indictment on speedy trial grounds. "The right to a speedy trial

is guaranteed by the Sixth Amendment to the United States Constitution and

imposed on the states by the Due Process Clause of the Fourteenth Amendment."

State v. Tsetsekas, 411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer v. North

Carolina, 386 U.S. 213, 222-23 (1967)). This "right . . . attaches upon

defendant's arrest." Ibid. (quoting State v. Fulford, 349 N.J. Super. 183, 190

(App. Div. 2002)); State v. Szima, 70 N.J. 196, 199-200 (1976).

Speedy trial claims are governed by the Barker four-factor balancing test,

which, as noted, requires consideration of the "[l]ength of delay, the reason for

the delay, the defendant's assertion of his [or her] right, and prejudice to the

defendant." 407 U.S. at 530; State v. Cahill, 213 N.J. 253, 258 (2013); Szima,

70 N.J. at 201. In applying this standard, "a trial court must weigh the 'societal

right to have the accused tried and punished' and a defendant's right to be

prosecuted 'fairly and not oppressively.'" Tsetsekas, 411 N.J. Super. at 10

(quoting State v. Dunns, 266 N.J. Super. 349, 380 (App. Div. 1993)). "No single

factor is a necessary or sufficient condition to the finding of a deprivation of the

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right to a speedy trial"; instead, "the factors are interrelated, and each must be

considered in light of the relevant circumstances of each particular case." Ibid.

We review the court's assessment and balancing of the Barker factors

deferentially, see Doggett v. United States, 505 U.S. 647, 652 (1992), and we

will reverse a trial court's determination as to whether a defendant has been

deprived of a speedy trial "only if the court's determination is clearly erroneous,"

Tsetsekas, 411 N.J. Super. at 10 (citing State v. Merlino, 153 N.J. Super. 12, 17

(App. Div. 1977)). While we "have been loath to sponsor the more severe

sanction of dismissal because the demands of justice require adjudications on

the merits to the greatest extent possible," State v. Farrell, 320 N.J. Super. 425,

447 (App. Div. 1999), where there is a violation of the right to a speedy trial,

"dismissal of the indictment . . . is the only possible remedy," Barker, 407 U.S.

at 522.

Defendant does not challenge any of the court's factual findings

supporting its denial of her speedy trial motion; she instead claims the court

erred in weighing the Barker factors and the factors required dismissal of the

indictment. She argues there were lengthy delays following her arrest; the

reason for the delays was largely "due to the [S]tate's failure to provide

discovery to the defense"; she asserted her right to a speedy trial in October 2014

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and June 2015; and she suffered prejudice during the pendency of the charges

due to difficulty obtaining employment and supporting herself, excessive legal

fees, and the "extreme anxiety and humiliation" brought on by "excessive court

dates and waiting for trial." We reject defendant's arguments and affirm the

court's denial of her speedy trial motion.

Defendant claims the length of the delay in bringing the matter to trial

weighs in favor of dismissal. She was arrested in October 2014, and the court

heard her motion to dismiss on speedy trial grounds thirty-one months later in

May 2017. Our Supreme Court has "recognized that longer delays can be

tolerated for serious offenses or complex prosecutions," and it has held that

"once the delay exceeds one year, it is appropriate to engage in the analysis of

the remaining Barker factors." Cahill, 213 N.J. at 265-66. Additionally, our

Supreme Court has expressly declined to establish a fixed amount of time in

which a defendant must be tried or in which defendant's speedy trial rights are

presumptively violated. Id. at 269.

Here, the court found the length of the delay in bringing the matter to trial

was at least in part explained by the complexity of the case against defendant.

Although defendant was charged in a single count, the court noted defendant

was accused of causing millions of dollars of losses to Sears over the course of

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more than two years, and Sears was required to review several thousand

fraudulent transactions to determine the nature and extent of defendant's actions.

Defendant does not dispute the court's finding or that the nature of the crime

charged required consideration of thousands of transactions occurring over a

multi-year period.

Moreover, consideration of the interrelated second factor, the reason for

the delay, supports the court's conclusion the length of the delay was not

unreasonable. Under Barker's second factor, reason for the delay, "because of

the imprecision of the right to speedy trial, the length of delay that will provoke

such an inquiry is necessarily dependent upon the peculiar circumstances of the

case." Barker, 407 U.S. at 530-31; Cahill, 213 N.J. at 265 ("[T]he lapse of time

that might trigger a violation of the constitutionally guaranteed speedy trial right

depends on the nature of the charges lodged against the defendant"). As noted,

defendant was charged with committing an extensive course of unlawful takings;

allegedly involving thousands of transactions over the course of two years, all

of which she attempted to conceal. See Barker, 407 U.S. at 531 ("The delay that

can be tolerated for an ordinary street crime is considerably less than for a

serious, complex conspiracy charge"); State v. Gaikwad, 349 N.J. Super. 62, 88

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(App. Div. 2002) (holding "the complexity of the subject matter of the case"

may render a delay reasonable).

The court also found additional reasons for the delay, many of which were

attributable to defendant. "[A]ny delay that defendant caused or requested

would not weigh in favor of finding a speedy trial violation." State v. Long, 119

N.J. 439, 470 (1990) (quoting State v. Gallegan, 117 N.J. 345, 355 (1989)). The

motion court found the proceedings were delayed by nine-months due to

defendant's prosecution of her application to drug court, and that "many of the

adjournments" of the trial related proceedings "were at the defense's request."

The requested adjournments were to allow defendant to obtain additional

discovery defendant sought from Sears that, as defendant conceded during the

motion hearing, was discovery not in the State's possession.

Again, defendant does not challenge the court's findings or point to a

single circumstance during the pretrial proceedings where actions by the State

resulted in an adjournment or delay. Cf. Barker, 407 U.S. at 531 (explaining

"deliberate attempt[s] to delay in order to hamper the defense should be

weighted heavily against" the State). And, the court affirmatively found,

"[t]here is absolutely no indication that the prosecution intentionally delayed the

proceedings to gain an unfair, tactical advantage."

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The court also considered Barker's third factor—defendant's assertion of

the right to a speedy trial. The court noted defendant included a request for a

speedy trial in her counsel's initial letter of representation and request for

discovery on October 20, 2014, and in a June 22, 2015 letter to the Gloucester

County Prosecutor's Office, but defendant did not file her speedy trial motion

until March 10, 2017.

In analyzing whether a defendant properly invoked his or her speedy trial

right, a court may consider "the frequency and force of the [defendant's]

objections." Barker, 407 U.S. at 529. "Whether and how a defendant asserts his

right is closely related" to the length of the delay, the reason for the delay, and

any prejudice suffered by defendant. Id. at 531.

Here, we are unable to assess the force of defendant's speedy trial requests

because the October 24, 2014 and June 22, 2015 letters to which the motion

court made reference, and upon which defendant relies, are not included in the

record on appeal. See R. 2:6-1(a)(1)(I); Soc'y Hill Condo. Ass'n v. Soc'y Hill

Assocs., 347 N.J. Super. 163, 177-78 (App. Div. 2002). Thus, we are unable to

determine if the demands were anything more than "pro forma" assertions of the

right to a speedy trial. See Barker, 407 U.S. at 528-29 (discouraging the

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attachment of "significant weight to purely pro forma" assertions of the right to

a speedy trial).

In any event, because there appears to be no dispute the letters included

some assertion of defendant's speedy trial right, the third factor weighs in

defendant's favor. See ibid. However, any weight under the third Barker factor

that might otherwise inure in defendant's favor is necessarily tempered, and

substantially so, by the court's finding that many of the delays were the result of

defendant's actions and requests, including her application to the drug court

program and the adjournments she sought to obtain discovery from Sears, and

the court's determination the State took no action to delay the proceedings.

Defendant cannot delay the proceedings, and, at the same time, claim she made

credible requests for a speedy trial that should be given great weight in the

analysis required under Barker. See generally id. at 527 (explaining "[i]f

counsel is willing to tolerate some delay because he finds it reasonable and

helpful in preparing his own case, he may be unable to obtain a speedy trial for

his client at the end of that time").

The court also found defendant did not demonstrate prejudice weighing in

favor of dismissal under Barker's fourth factor. "[P]rejudice is assessed in the

context of the interests the [speedy trial] right is designed to protect," Cahill,

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213 N.J. at 266, including "prevention of oppressive incarceration, minimization

of anxiety attributable to unresolved charges, and limitation of the possibility of

impairment of the defense," ibid.

Here, defendant was not incarcerated while she awaited trial, and she

offered no evidence the delay in bringing the matter to trial impaired her ability

to defend her case. See Szima, 70 N.J. at 202 (rejecting a speedy trial claim in

part based on the fact a defendant was not incarcerated during the twenty-two-

month delay, and he claimed "no impairment to his ability to defend").

Moreover, defendant did not present the motion court with any competent

evidence she was unable to find work, was unable to support herself, incurred

an inordinate amount of legal fees, or suffered excessive anxiety or humiliation

as a result of the charge pending against her. We recognize that "significant

prejudice may . . . arise when the delay causes the loss of employment or other

opportunities, humiliation, the anxiety in awaiting disposition of the pending

charges, the drain in finances incurred for payment of counsel or expert witness

fees," Tsetsekas, 411 N.J. Super. at 13, but defendant does not cite to any

competent evidence, see R. 1:6-6, supporting her conclusory claims of prejudice.

Based on our review of the record and balancing of the applicable factors,

we find nothing "clearly erroneous" in the court's disposition of defendant's

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speedy trial claim. Tsetsekas, 411 N.J. Super. at 10. The court considered and

found the factors, balanced them, and concluded they did not warrant dismissal

of the indictment. Defendant offers no basis to reverse the court's determination.

III.

Defendant argues the court erred by denying her motion to suppress the

statements she made during the October 16, 2014 custodial interrogation. She

claims she invoked her right to counsel and Wilden failed to "scrupulously

honor" the invocation because he failed to cease questioning and he used her

request for counsel "as an opportunity to manipulate her into further

interrogation."

When reviewing a trial court's denial of a motion to suppress, our "scope

of review . . . is limited." State v. Ahmad, 246 N.J. 592, 609 (2021). We "must

uphold the factual findings underlying the trial court's decision so long as those

findings are supported by sufficient credible evidence in the record." Ibid.

(quoting State v. Elders, 192 N.J. 224, 243 (2007)). Factual findings of the trial

court should only be set aside when those findings are "clearly mistaken." State

v. Zalcberg, 232 N.J. 335, 344 (2018) (quoting State v. Hubbard, 222 N.J. 249,

262-63 (2015)). Factual findings based on "[v]ideo-recorded evidence is

reviewed under the same standard." State v. Hagans, 233 N.J. 30, 38 (2018)

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(citing State v. S.S., 229 N.J. 360, 381 (2017)). We owe no such deference to a

trial court's legal interpretations, which we review de novo. State v. Hathaway,

222 N.J. 453, 467 (2015).

The Fifth Amendment guarantees the "privilege against self-

incrimination," and the United States Supreme Court's opinion in Miranda, 384

U.S. at 444, provides the "framework for our analysis." State v. Alston, 204

N.J. 614, 619 (2011). Under Miranda, law enforcement must "advise suspects

subject to custodial interrogation that they possess certain fundamental rights,

including the right to an attorney—even an appointed attorney if they were

unable to afford one." State v. Rivas, ___ N.J. ___, ___ (2022) (slip op. at 27).

"[I]f the accused 'indicates in any manner and at any stage of the process that he

wishes to consult with an attorney before speaking there can be no questioning.'"

Alston, 204 N.J. at 619-20 (quoting Miranda, 384 U.S. at 444-45).

In this state, the privilege against self-incrimination "offers broader

protection that its Fifth Amendment federal counterpart." State v. O'Neill, 193

N.J. 148, 176-77 (2007). "Under our state law privilege against self-

incrimination, 'a suspect need not be articulate, clear, or explicit in requesting

counsel; any indication of a desire for counsel, however ambiguous, will trigger

entitlement to counsel.'" Rivas, ___ at ___ (slip op. at 27) (quoting Alston, 204

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N.J. at 622). "[I]f a suspect's 'words amount even to an ambiguous request for

counsel, the questioning must cease,' unless the officer makes additional neutral

inquiries that clarify that the suspect desires to waive the presence of counsel."

Id. at 27-28 (quoting Alston, 204 N.J. at 624). "[T]he State bears the burden to

show scrupulous compliance with" these requirements. State v. Dorff, 468 N.J.

Super. 633, 651 (App. Div. 2021).

In determining whether a suspect has invoked their right to counsel, the

court employs "a totality of the circumstances approach that focuses on the

reasonable interpretation of defendant's words and behaviors." State v. Diaz-

Bridges, 208 N.J. 544, 564 (2011). "[A]ny words or conduct that reasonably

appear to be inconsistent with defendant's willingness to discuss his case with

the police are tantamount to an invocation of the privilege against self-

incrimination." Alston, 204 N.J. at 622 (quoting State v. Bey, 112 N.J. 123, 135

(1988)). "[B]ecause the right to counsel is so fundamental, an equivocal request

for an attorney is to be interpreted in the light most favorable to defendant."

State v. Wright, 97 N.J. 113, 119 (1984).

If an ambiguous invocation is made, further questioning of a suspect is

only permissible if those further questions are aimed at clarifying the meaning

of the statement. Alston, 204 N.J. at 623. Such clarification is necessary where

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the statement "leave[s] the investigating officer 'reasonably unsure whether the

suspect was asserting that right.'" Diaz-Bridges, 208 N.J. at 564 (quoting State

v. Johnson, 120 N.J. 263, 283 (1990)). In clarifying the meaning of a suspect's

statement, an officer is limited "to neutral inquiries." Rivas, ___ N.J. at ___

(slip op. at 28). Critically, these clarifying inquiries must not "operate to delay,

confuse, or burden the suspect in his [or her] assertion of his rights." Alston,

204 N.J. at 623 (quoting Johnson, 120 N.J. at 283).

Measured against these principles, the officers conducting the October 16,

2014 interrogation failed to scrupulously honor what we find, and what the State

concedes, was defendant's equivocal invocation of her right to counsel. The

officers properly informed defendant of her Miranda rights at the outset of the

interrogation, but approximately twenty-one minutes after the interrogation

began, defendant made an ambiguous invocation of her right to counsel, and

Wilden's response impermissibly burdened defendant's assertion of that right.

Ibid.

Defendant disputes the accuracy of the transcript of the interrogation

relied on by the court in deciding the suppression motion, asserting the court

misconstrued what was said. We have reviewed the recording of the

interrogation that was considered by the court and, although we disagree with

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the court's legal conclusions concerning the admissibility of defendant's

statements, we accept the court's factual findings about what was said by

defendant in the "audio/video" recording of the interrogation. S.S., 229 N.J. at

381.

At the outset of the interrogation, after being advised of and

acknowledging her Miranda rights, defendant was asked by Wilden if she was

"willing" to "answer some more questions," and he informed her that whether

she did so was "entirely up to" her. He said he understood defendant told Sears

loss prevention personnel she thought she "might need a lawyer at some point"

and he asked if she wanted "to answer any . . . questions." She responded, "I

will try my best until—I need a lawyer." 4

In response to questions posed by Wilden, defendant then provided

inculpatory statements concerning actions she took while employed at the Sears

distribution center, including creating fraudulent deliveries in the Sears

computer system to be sent to individuals who paid her a percentage of the

delivered products' retail price. However, following these admissions,

approximately twenty-one minutes into the recorded statement, defendant broke

4

Defendant does not argue this statement constituted unambiguous invocation

of her right to counsel.

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off Wilden's questioning and said, "Do you remember on that thing that you

were asking me and at the time I was wondering if I could speak with a lawyer

before I went any farther."

We disagree with defendant's characterization of this statement as an

unambiguous invocation of her right to counsel because even viewed in the light

most favorable to defendant, we find the statement could have left Wilden

"reasonably unsure whether the suspect was asserting that right." Diaz-Bridges,

208 N.J. at 564 (quoting Johnson, 120 N.J. at 283). However, we find, and the

State concedes on appeal, defendant's statement, "I was wondering if I could

speak with a lawyer before I went any farther" constitutes an ambiguous

invocation of the right to counsel. See Dorff, 468 N.J. Super. at 649 (finding a

suspect's declaration "[t]hat's why I feel I might need a lawyer" to be an

invocation of their right to counsel).

Indeed, Wilden understood the statement as an equivocal invocation of

defendant's right to counsel. In response to defendant's statement, Wilden first

said, "Okay, [w]ell[,] that's up to you." That is, Wilden understood defendant's

statement as at least an ambiguous assertion of her right to counsel because he

told her "that[]"—the decision whether to have an attorney before she

continued—was up to her. Wilden then continued,

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since you mentioned lawyer [sic], that's why we

communicated to you a lot of stuff earlier. If you feel

like you need an attorney, I can't guide you either way

on that. You can certainly understand that I can't do

that. But if you want an attorney, absolutely we won't

ask you any more questions, you can stop right now.

That's up to you.

In response to Wilden's explanation, defendant then asked, "What's the

difference, I mean?"

Wilden answered defendant's question, stating:

Well[,] the difference is, like I said when we

came in here, I said I don't know if there's still things

that maybe we can try and get back for Sears because

at this point there's a lot of stuff that's been delivered

over the last two years that we're probably not going to

be able to get back for Sears.

And if there's any deliveries coming down the

road in the future, maybe you can tell us, you know, at

what point things are. Because the warehouse, a lot of

this stuff, maybe if you tell us, maybe we can try and

retrieve a substantial amount of inventory for Sears, it

may help us in the long run. And we can go and we can

say [defendant] was cooperative with us, she provided

us with a statement detailing what she did, and she

made her best effort to try and obtain some of the goods

back or prevent more goods from going out that were

scheduled for delivery, whether it's today, or tomorrow,

or next week, or whatever the case may be.

I don't know what the case is. Maybe there is

stuff in there, maybe there's not. But you have to, if

you want a lawyer, certainly we're not going to get you

one now, we'll just stop asking you questions. But I

can't recommend yes or no whether or not you need an

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attorney at this point. That's something you have to

answer.

I just want to put it out to you, hey look, I can't

promise you anything. Like this thing we read earlier,

we can't promise you, we can't threaten you with

anything. I'm going to say I don't know what your

situation is. If there's things you think you can get back,

it might help when it comes down later on[,] six months

from now, a year from now, whatever the case may be,

hey look, you know what, she did make an effort to try

and help us out to get things back. That's all.

[(Emphasis added).]

What is missing from Wilden's response to defendant's equivocal

invocation of her right to counsel is any effort to ask neutral clarifying questions

to determine whether defendant had, in fact, invoked her right to counsel. Rivas,

___ N.J. at ___ (slip op. at 27-28). Wilden's statements went well beyond the

limited scope of neutral questions that may be asked of a defendant who has

ambiguously invoked the right to counsel during a custodial interrogation. Ibid.;

Alston, 204 N.J. at 625-27. When confronted with the equivocal and ambiguous

invocation, the officers were "required either to cease questioning or to pose

only questions designed to clarify whether defendant was invoking her right to

consult with an attorney." Dorff, 468 N.J. Super. at 652. Wilden recognized

plaintiff's statement as an ambiguous invocation of her right to counsel, but he

never sought to resolve the ambiguity and clarify whether her statement was

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intended as an invocation of that right. See S.S., 229 N.J. at 382-83 (explaining

when a suspect's statement constitutes an ambiguous invocation of the right to

counsel "the interrogating officer must cease questioning and 'inquire of the

suspect as to the correct interpretation'" of the statement (quoting Johnson, 120

N.J. at 283)).

Wilden's lengthy statement offered defendant reasons she should speak

with him immediately, and outside the presence of counsel. Although he told

defendant he could not promise her anything if she answered his questions, he

nonetheless suggested defendant would benefit from cooperating because the

officers could then "go and . . . say [defendant] was cooperative with us." That

response impermissibly burdened defendant's assertion of her right to counsel.

Alston, 204 N.J. at 623.

In fact, the officers never clarified whether defendant's initial statement

constituted an invocation of her right to counsel. They simply never asked her

to clarify whether her statement was intended as such. Rather, in response t o

defendant's statement, Wilden ignored the putative invocation, shifted the

discussion to one about defendant's right to decide whether she wanted counsel,

attempted to persuade her it was in her interest to answer the questions without

counsel, and impermissibly suggested she would lose the benefit of providing

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27

cooperation if she delayed responding to his questions and ended the

interrogation to confer with counsel. That course of action was impermissible

because, following defendant's ambiguous invocation of her right to counsel, the

officers' only permissible task was to clarify whether defendant's statement

constituted an invocation of her right. That task was never completed by the

officers here.

The motion court therefore erred by denying defendant's motion to

suppress those portions of her statement following her equivocal invocation of

the right to counsel. We therefore must consider whether the error is harmless.

"The test for determining whether an error is harmless 'is whether there is a

reasonable possibility that the evidence complained of might have contributed

to the conviction.'" State v. Sanchez, 129 N.J. 261, 278 (1992) (quoting

Chapman v. California, 386 U.S. 18, 23 (1967)); see also R. 2:10-2 (providing

"[a]ny error . . . shall be disregarded by the appellate court unless it is of such a

nature as to have been clearly capable of producing an unjust result").

Based on our review of the evidence, we are convinced that introduction

of defendant's lengthy and detailed statements describing the manner in which

she committed the numerous thefts that comprised the offense for which she was

charged, as well as the amounts of the various thefts, contributed to her

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conviction. The State's case was otherwise founded on Perillo's testimony,

which is complicated, at times difficult to follow, and founded on his

interpretation of data from business records. Moreover, defendant's payroll

records show she was not present at the Sears distribution center on days some

of the alleged fraudulent deliveries were entered into the center's computers.

In our view, although defendant made general admissions of guilt during

her initial interview by the Sears loss prevention personnel and during the brief,

preliminary questioning at the police station following the administration of her

Miranda rights, any legitimate doubts the jury may have had about the strengths

of the State's record-based evidence discussed by Perillo during his trial

testimony, or on the evidence showing she was not working when the thefts were

committed, were effectively eliminated by the detailed information and

admissions defendant provided during the lengthy interrogation that followed

her equivocal invocation of her right to counsel. We therefore conclude the

admission of defendants' lengthy interrogation following her equivocal

invocation of her right to counsel was clearly capable of producing an unjust

result, and reverse defendant's conviction, R. 2:10-2; see O'Neill, 193 N.J. at

184; Sanchez, 129 N.J. at 278, and remand for a new trial.

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IV.

Defendant argues the court erred by admitting exhibits S-1 through S-3,

which, as noted, were prepared by Sears and used at trial to show fraudulent

transactions were entered on days defendant was working and the total loss

exceeded $75,000. Defendant argues the court erred by finding the exhibits

admissible under the business records exception, N.J.R.E. 803(c)(6), and under

the summaries of records exception, N.J.R.E. 1006, to the hearsay rule, N.J.R.E.

802. She further argues the admission of the exhibits violated her right to

confront the witnesses against her because Perillo did not create the reports and

the Sears employees who created the reports did not testify at trial. We review

the court's challenged evidentiary rulings for an abuse of discretion. State v.

Singh, 245 N.J. 1, 12 (2021).

We agree with defendant that exhibits S-1 through S-3 were not

admissible as business records under N.J.R.E. 803(c)(6). The business records

exception to the prohibition on hearsay provides that "[a] statement contained

in a writing or other record of acts" will be admissible when it is established the

record was: (1) "made at or near the time of observation"; (2) "by a person with

actual knowledge or from information supplied by such a person"; (3) "the

writing or other record was made in the regular course of business[;] and" (4)

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"it was the regular practice of that business to make such writing or other

record." N.J.R.E. 803(c)(6).

Printouts of records electronically stored and relied upon by businesses

will ordinarily satisfy the requirements of N.J.R.E. 803(c)(6), see, e.g. New

Century Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299, 327 (App. Div. 2014)

(printouts of credit card statements admitted where supported by certifications

of employees having personal knowledge of records and transactions); Garden

State Bank v. Graef, 341 N.J. Super. 241, 245-46 (App. Div. 2001) (finding a

bank's computer printouts of a customer's loan history admissible, and

explaining, "computers are universally used and accepted, have become part of

everyday life and work and are presumed reliable" (quoting Hahnemann Univ.

Hosp. v. Dudnick, 292 N.J. Super. 11, 16 (App. Div. 1996))).

However, although Perillo testified the underlying information shown in

exhibits S-1, S-2, and S-3, was obtained from business records satisfying the

requirements of N.J.R.E. 806(c)(6), none of the exhibits was prepared "at or near

the time of the occurrence"—the time the information was entered into the Sears

computer system—or prepared in "the regular practice of that business."

N.J.R.E. 803(c)(6). Although gleaned from business records, S-1 through S-3

were generated after the prosecution of defendant began, they contained

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information going back as far as two years prior to the initiation of the

prosecution, they were not prepared during the ordinary course of Sears's

business, and they did not satisfy the requirements for the admission of business

records under N.J.R.E. 803(c)(6). The court erred by finding those exhibits were

admissible as business records under N.J.R.E. 803(c)(6).

Nonetheless, exhibits S-1 through S-3 were properly admitted as

summaries under N.J.R.E. 1006, because they were "presented by a qualified

witness to prove the content of voluminous writings or photographs that cannot

conveniently be examined in court." In order to be admitted under the rule, "the

proponent shall make the originals or duplicates available for examination or

copying, or both, by other parties at a reasonable time and place or mode."

N.J.R.E. 1006. As Perillo established during his testimony at the Rule 104

hearing on the admission of the exhibits, the information contained in each

exhibit was reaped directly from records that qualify as business record under

N.J.R.E. 803(c)(6), and the exhibits themselves merely assembled and contained

summaries of portions of those business records pertinent to defendant's alleged

years-long thefts from the distribution center.

We are not persuaded by defendant's claim the exhibits were inadmissible

because she was denied access to the "underlying data." See N.J.R.E. 1006. The

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record is bereft of evidence of any refusal by Sears to make the underlying data

available to defendant, and the trial court otherwise expressly informed

defendant it would provide counsel with "the ability . . . to go look at all the

material that went into these documents and review them for trial," and advised

counsel he "should take that chance" and "have an expert" review the material.

A May 26, 2017 order further provided that "[d]efense counsel has [forty-five]

days to review the underlying documents from Sears." There is no evidence

Sears refused any effort by defendant to take advantage of the opportunity

provided by the court to review underlying data summarized in exhibits S-1

through S-3. The court therefore did not abuse its discretion by admitting the

exhibits under N.J.R.E. 1006.

We decline to address defendant's Confrontation Clause claim as to the

admission of exhibits S-1 through S-3 because she failed to raise the argument

at trial. See State v. Carrion, 249 N.J. 253, 273-74 (2021) ("By not demanding

the witness's testimony, the defendant waives his [or her] confrontation right.").

However, our determination does not preclude defendant from raising the issue

at any retrial on remand.

Defendant also argues Perillo's trial testimony regarding the content of the

reports amounted to inadmissible expert opinion testimony because he testified

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based on his experience rather than his personal observations, and he was not

qualified as an expert witness at trial. She further claims Perillo offered

impermissible ultimate opinion as to defendant's guilt.

Perillo was qualified by the court as an expert on the Sears computer

system, the company's record keeping, and its record retention policy at the

N.J.R.E. 104 hearing at which the court determined S-1 through S-3 were

admissible at trial. During his trial testimony, Perillo restated his qualifications

as an expert in those areas, but he was not offered as an expert. Without

objection, defendant nonetheless allowed Perillo to offer testimony concerning

the Sears computer system, retention system, and related issues, and waited until

his testimony was completed to move to strike it all as inadmissible expert

opinion.

To the extent Perillo offered expert opinion testimony, he should have

been properly qualified as an expert. See N.J.R.E. 702; see also Townsend v.

Pierre, 221 N.J. 36, 53 (2015) (explaining requirements for admission of expert

opinion testimony). It is, however, unnecessary to decide whether any error in

the admission of any expert opinion testimony he may have offered constituted

harmless error, see, e.g., State v. Hyman, 451 N.J. Super. 429, 457 (App. Div.

2017) (finding failure to qualify witness as an expert was harmless error wh ere

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the evidence otherwise established the witness was an expert); State v. Kittrell,

279 N.J. Super. 225, 236 (App. Div. 1995) (holding "[b]ecause enough evidence

was presented to qualify [the witness] as an expert in this area, the trial court's

error in failing to specifically qualify him as an expert was harmless"), because

on remand the court shall consider anew whether any testimony that may be

offered by Perillo or any other witness constitutes expert opinion and whether

the proffered witness qualifies to provide the opinion under N.J.R.E. 702.

Defendant also argues Perillo improperly offered testimony as to

defendant's guilt while describing the content of the exhibits in two instances.

Relying on information in the reports marked as exhibits S-1 through S-3, Perillo

testified, "we had a number of fraudulent transactions for [records of returns]

for deliveries that Ms. Watson—that we thought Ms. Watson had done. She had

used somebody else's number at that time[,]" and "[w]hat Ms. Watson was

doing, she was charging another unit—she was charging our online

business . . . so [the] Swedesboro inventory would balance."

We do not consider the merits of defendant's argument because she did

not object to Perillo's testimony at trial and the issue does not go to the court's

jurisdiction or involve a matter of great public interest. See State v. Robinson,

200 N.J. 1, 20 (2009). Nonetheless, we remind the court that at any trial on

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remand, a witness shall not be permitted to offer testimony expressing "a belief

in defendant's guilt" or "an opinion on matters that [are] not beyond the

understanding of the jury." State v. McLean, 205 N.J. 438, 463 (2011); see also,

State v. Watson ___ N.J. Super. ___, ___ (App. Div. 2022) (slip op. at 83)

(explaining "it is impermissible for a police witness to testify at trial as to

defendant's guilt or an ultimate issue to be decided by the jury").

V.

Defendant also argues the court erred by instructing the jury that if it

sought a playback of defendant's recorded interrogation by the police, it would

be required to review the entire recording. This instruction was founded on the

court's understanding it was not technologically possible to play only the

specific portions of the recording that might be requested by the jury during its

deliberations.

Although they "have broad discretion as to whether and how to conduct

read-backs and playbacks," trial "[c]ourts should honor a jury's specific request

to hear only limited parts of a witness'[s] testimony." State v. Miller, 205 N.J.

109, 122-23 (2011) (emphasis added). Here, defendant did not object to the

court's statement to the jury, and, for that reason, and also because we remand

for a new trial, we do not consider the merits of her argument. See Robinson,

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200 N.J. at 20. In any event, at any retrial the court shall assess the technology

and, to the extent reasonable and practicable, impose upon the parties the

obligation to present recordings in a format permitting the playing of only those

portions requested by a jury during deliberations.

Defendant's final arguments address the court's sentencing following her

conviction. These issues are mooted by our remand for new trial. We note only

that in the event defendant is convicted on remand, the court shall conduct a

hearing to determine the appropriate amount of restitution if it orders restitution

as a condition of the sentence imposed. State v. Paladino, 203 N.J. Super. 537,

547 (App. Div. 1985).

To the extent we have not expressly referred to or addressed any of

defendant's remaining arguments, we find they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed in part, reversed in part, and remanded for a new trial. We do

not retain jurisdiction.

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