Wednesday, September 18, 2013

The Army Reservist, the Voice Mails and Forgery

A jury convicted Liana D. Howard of “third-degree conspiracy in violation of New Jersey Statutes § 2C:5–2, fourth-degree forgery in violation of New Jersey Statutes § 2C:21–1(a)(1), fourth-degree uttering a forged instrument in violation of New Jersey Statutes § 2C:21–1a(3) and fourth-degree falsifying records in violation of New Jersey Statutes § 2C:21–4a”. State v. Howard, 2013 WL 4792843 (Superior Court of New Jersey – Appellate Division 2013).  The judge then sentenced her to “four concurrent terms of eighteen months probation, and ordered that Howard forfeit her position as a police officer”, after which she appealed.  State v. Howard, supra.

As to the basis for the charges, the opinion notes that in the summer of 2009,

[Howard], an Asbury Park police officer and an inactive member of the Army Reserves, vacated her Long Branch apartment before the lease term ended. Under federal law, a landlord may not penalize a service-member if forced to break a lease because of military duty. To avoid early-termination penalties for breaking her lease, forged military orders assigning [Howard] out of state were submitted to the landlord.

State v. Howard, supra (citing 50 U.S. Code § 535).

It also notes that Howard was charged along with “her friend,” Michele Randon, a

former servicemember. . . . Randon admitted she altered her old military orders to make them appear to be current orders for [Howard]. . . . Randon . . . entered an open plea of guilty on the eve of trial, and then testified that she conspired with [Howard].

State v. Howard, supra.

The opinion then describes the facts relevant to the charge in more detail, noting that Howard

entered a lease for an apartment at Pier Village in February 2009, with an April 1, 2009 start date. [She] took advantage of a ten percent discount for members of the military. As of February 2009, she was still an active member of the Army Reserves.

Shortly after moving in, she complained about noise from a gym in her building. . . . The property manager, Gladys Koechlein, testified the landlord tried to abate the noise by installing soundproofing. The landlord also offered to relocate [her] to a different apartment, but she declined. [She] did not pay rent for June or July. In mid-June, she called Koechlein, complained that the noise had not abated, and said she wanted to vacate the apartment.

Koechlein . . . and [Howard] played `phone tag’ in mid-July. [She] left four voice mail messages for Koechlein. Koechlein and a sergeant at the Asbury Park Police department identified [Howard’s] voice on the voice mails. The messages were presented as evidence of [Howard’s] active participation in the effort to falsely persuade her landlord that she had been reassigned to military service in Kentucky, justifying the termination of her lease.

State v. Howard, supra. The opinion notes that the “audio recordings of the voice mail messages were admitted into evidence” at Howard’s trial.  State v. Howard, supra.

There were four voice mails, and in the first one Howard

identified herself and provided her phone number, ending in 4602. She said, `I was just wondering if you got my fax. I'm actually already out um I'm having a friend of mine move the rest of my belongings[.]’ She said, `My last day of work was last week and I've just been busy ever since.’ She told Koechlein she could call her back at the 4602 number, `or I can give you my friend um Michele's telephone number. She's . . . pretty much um handling everything for me.’

Although [Howard] stated she stopped working `last week,’ a police department witness testified [she] continued to work as an Asbury Park police officer, and filled a regular assignment during July. Although she had July 15 and 16 off, employment records were admitted into evidence showing [she] was on duty as a police officer at 4 p.m. on July 17. 

An Army witness also testified [Howard] completed her reserve obligation on June 4, 2009, so she had no current military service obligations.

State v. Howard, supra.

That left three more, and in the second voice mail message, which “appeared” to

follow quickly after the first, [Howard] provided Koechlein with Michele Randon's telephone number. She stated, `[I]t's Liana Howard calling again. . . . I just wanted to give you my friend's um Michele, her last name is Randon . . . her telephone number is [ ]–6296.’ [She] advised Koechlein that her own cell phone service `is actually um getting cut today[.]’ 

A police witness who obtained [Howard’s] cell phone record testified that [her]s cell phone service was terminated on July 15, 2009, effectively dating the second voice mail as being left on July 15, 2009.

In the third voice mail message, [Howard] stated she `of course [is] no longer in the apartment. . . . [S]omeone should be turning in the key by next Friday.’ She asked Koechlein to return her call at the 6296 number.

State v. Howard, supra.

Then there was the fourth and final message, in which Howard said

`I've been out of the apartment for about a week and a half now.’ The fourth voice mail apparently followed the third, as by this time, [Howard] had acquired a `throw away cellular phone’ and did not know the number.

[She] also referred to a conversation she just had with `my friend Michele.’ She stated Michele had power of attorney to act on [her] behalf, as did [her] parents. She gave Koechlein Randon's number as well as [her] mother's number. [She] represented that she was on her way to Kentucky. `I'm actually I'm driving[.] I'm on my way to Kentucky[.] I'm out of state[.]’

State v. Howard, supra.

At Howard’s trial, Koechlein testified that on July 17, the day she received the fourth

voice mail message, [Howard] and Koechlein actually spoke to each other by phone. Koechlein informed [Howard] that [she] had failed to pay rent in June and July, and that breached the contract. [Howard] explained . . . she was en route to a military base because she was being relocated. Koechlein testified she requested a copy of the military orders, which were faxed to her later that day. 

The order purported to require [Howard] to report to Fort Campbell, Kentucky on August 20, 2009, after a temporary assignment beginning August 7, 2009. When Koechlein received the military order, she felt `it didn't look as it should have,’ as she had seen military orders in the past.

Koechlein ultimately confirmed with military personnel that the document was a forged order. The forgery altered a 2007 order pertaining to the assignment of a person holding a paralegal position, and not a military police officer. Randon testified she altered the order which was originally directed to her, when she served in the military as a paralegal at Fort Campbell. She testified that she faxed the order to Koechlein, but did so with [Howard’s] agreement.

State v. Howard, supra.

At Howard’s trial, her defense attorney, among other things, “questioned whether the voice mail messages were left in July”, noting that “in Koechlein’s pre-trial statement, she asserted that” Howard left the apartment in June.  State v. Howard, supra. In a footnote, the opinion says that in a “pre-trial statement” Koechlein said Howard was in the apartment “only ninety to one-hundred days”, which would have meant she “vacated the apartment in early July.”  State v. Howard, supra.

To establish the “timing of the four voice mails,” the prosecution presented the testimony of Detective Richard Bruccoliere, “a computer crimes detective from the prosecutor's office” who explained,

based upon his investigation and interview of the landlord's information technology manager, the landlord maintained a system in which voice mail messages were attached as audio files to emails, which were sent to the intended recipient of the voice mail. Bruccoliere examined the properties screen accompanying the computer file of each voice mail.

He stated that the first message's property file listed the `modified’ time as July 15, 2009 at 12:51:58 p.m.; the second message's `modified’ date was July 15 at 12:52:24 p.m.; the third message had a `modified’ time of July 17 at 1:29:12 p.m.; and the fourth message had a `modified’ time of July 17 at 2:10:38 p.m. The `created’ date of the four messages was much later, coinciding with when the voice mail messages were copied for law enforcement investigators.

State v. Howard, supra.

The defense argued that Bruccoliere “should not be allowed to explain the meaning of `modified’ and `created” in the properties screen, particularly how the voice mails could be `modified’ long before they were apparently `created’” because this would be expert testimony and he had not been qualified as an expert.  State v. Howard, supra. The trial judge disagreed, and he testified.  State v. Howard, supra. Bruccoliere explained that

`So I know it's a little bit difficult to understand. However, the modified date will always match the creation date, its original source. So, by putting it on a DVD, it could be a week from now, it will have the new created date, but that modified date will always reflect when it was originally created on my computer. And access refers to the day you access it. So if I access it that day, it's going to give me a date and time stamp of that day.’

State v. Howard, supra.

On appeal, Howard argued that the trial judge erred in letting Bruccoliere interpret “the `modified’ and `created’ times in the properties screen accompanying each voice mail” because he was not qualified as an expert.  State v. Howard, supra. The appellate court began its analysis of the issue by noting that (i) the trial judge “exercises discretion in determining” the need for and the competence of expert testimony and (ii) an appellate court should not reverse a trial judge’s ruling on this issue unless the facts show that the ruling “`was so wide off the mark that a manifest denial of justice resulted.’”  State v. Howard, supra (quoting Brenman v. Demello, 191 N.J. 18, 921 A.2d 1110 (Supreme Court of New Jersey 2007)).

The court then found there was no error:

Applying this deferential standard of review, we discern no basis to disturb Judge Mellaci's determination that expert testimony was not required to establish that the time and dates that the voice mails were `modified,’ as stated in the properties screen, reflected when [Howard] actually left the voice mails on the landlord's voice mail system. Bruccoliere was not offering an opinion. Nor was he explicating technical attributes of the voice mail files that were hidden, embedded, or unavailable to a computer user not technically proficient.

The properties field, which includes the modified, created and accessed times, is accessible to the average computer user. Expert testimony is required when `the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.’ Scully v. Fitzgerald, 179 N.J. 114, 843 A.2d 1110 (Supreme Court of New Jersey 2004) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (Supreme Court of New Jersey 1982)).

State v. Howard, supra.

The court also noted that in his testimony Bruccoliere explained that

`created’ describes the time a file is placed in a particular media. The `modified’ date does not change if the substance of the file is unchanged. So, when the voice mail messages were placed on the disks for investigators, it reflected a new `created’ date on the disk, while the modified dates referred to July 15 and 17, 2009. 

We recognize that not every computer user may understand how a document can be `created’ after it was `modified’  However, the system is apparent to anyone who is attentive to how the properties field is recorded after a file is originally created and modified in one medium, and then saved in another. There is no claim that the `created’ or `modified’ dates were altered.

State v. Howard, supra.

Finally, the court noted that even if Bruccoliere should have been qualified as an expert, the error did not result in a manifest denial of justice because (i) the voice mails could be dated based on Koechlein’s testimony “and circumstantial evidence” and (ii) there was other “substantial evidence” of Howard’s guilt, even absent precise dating of the voice mails.”  State v. Howard, supra. As to the latter, the court noted that Randon testified

that [Howard] agreed Randon should submit the forged military order. [Howard] did not dispute that the order was a forgery. The evidence reflected that [she] was working on the day she claimed to be driving to Kentucky, ostensibly to assume a new military assignment. Randon also testified that after [Howard]  vacated Pier Village, she moved back to her parents' home, and not to Kentucky. 

State v. Howard, supra.

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