State v. MooreState v. Moore
In a nonjury trial defendant was convicted of obtaining unemployment compensation by false representations and the failure to disclose facts which he had the duty to disclose, contrary to
The indictment charged that defendant, in support of his claim for unemployment insurance benefits, falsely represented that he was unemployed from June 1972 to November
To prove that defendant was employed during relevant periods of time, Exhibits S-27 and S-28 were introduced in evidence over defendant‘s objection. S-27 was a form used by the Division of Unemployment Benefits in a fraud investigation. See
According to the testimony, Barrett‘s records showed that defendant worked “less than a full week” at times and at other times “almost a complete week” between June and December 15, 1972, and his earnings during that time (exclusive of the week beginning July 1, 1972, for which he received vacation pay of $128) were as follows:
Week ending Week ending June 9 $272.20 September 22 $123.68 July 21 $105.98 September 29 $146.52July 28 $146.14 October 6 $178.67 August 4 $106.80 October 13 $ 82.94 August 11 $124.00 October 20 $116.63 August 18 $ 88.94 October 27 $107.80 August 25 $114.54 November 3 $161.78 September 1 $135.57 November 10 $221.57 September 8 $138.24 November 24 $241.33 September 15 $144.32 December 1 $289.00
Defendant testified that he had worked for Barrett but was laid off, and so he applied for unemployment benefits. He said he was called back to work two or three times and worked for two or three days until he was laid off again. He claims that each time he went to pick up his unemployment check he reported that he had gone back to work at Barrett on a part-time basis. He testified that Barrett‘s manager had told him that he could draw unemployment benefits if he worked less than 32 hours a week. He admitted that he thought “they should have cut” his benefits for the weeks that he worked part time, “but they didn‘t cut me.”
The trial judge found that defendant may have felt he was entitled to unemployment benefits and, as such, did not have a conscious intent to cheat. But he also found that defendant knowingly concealed from clerks at the Unemployment Compensation office that he was employed and “positively represented that he was not employed.” The trial judge concluded that a sufficient showing had been made to establish a violation of
I
Defendant contends that the admission of S-27 and S-28 did not conform to our Rules of Evidence and that his Sixth Amendment right of confrontation was violated when proof that he was working was based exclusively on these records. But for exhibits S-27 and S-28 defendant‘s motion for
For some purposes S-27 and S-28 may be considered business records of Robertson‘s own employer, admissible pursuant to
It appears that the trial judge did not approach the issue in this fashion. The trial judge admitted S-27 as a report of a public official of an event observed by him which “was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement” within the meaning of
We can understand why the trial judge assumed that payroll records and time cards are records kept in the ordinary course of business. Every employer must keep true and accurate employment records, open to inspection and copying by a representative of the Division of Unemployment and Temporary Disability Insurance (Unemployment Division).
In view of the importance of S-27 in establishing an essential element of the crime, the included hearsay rule,
There are two obstacles to the admissibilty of Barrett‘s original payroll records had they been offered. The first is defendant‘s claim that his Sixth Amendment right of confrontation is violated by the use of hearsay to prove an essential element of the crime. The second is that the conditions for admitting the payroll records as business records, established by
II
Concern for a defendant‘s right of confrontation is raised whenever hearsay evidence is offered in a criminal trial. Unfortunately, the right of confrontation has not been fully and finally defined, nor is there agreement on the essentials and limits of that right. The right to cross-examine a witness whose statement is offered against an accused is
The admission of business records and other documentary hearsay proof has been sustained against a claimed violation of the Confrontation Clause, although in some cases the opinions or conclusions of the maker have been excised. State v. Reddick, 53 N.J. 66, 68-69 (1968); United States v. Sand, 541 F.2d 1370 (9 Cir.1976), cert. den. 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 553 (1977); Hanley v. United States, 416 F.2d 1160 (5 Cir.1969), cert. den. 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970); McDaniel v. United States, 343 F.2d 785 (5 Cir.), cert. den. 382 U.S. 826, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965); Kay v. United States, 255 F.2d 476 (4 Cir.), cert. den. 358 U.S 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958); Henson v. State, 332 A.2d 773 (Del. Sup. Ct. 1975); State v. Durham, 418 S.W.2d 23 (Mo. Sup. Ct. 1967); People v. Nisonoff, 293 N.Y. 597, 59 N.E. 2d 420 (Ct. App. 1944); People v. Porter, 46 App. Div.2d 307, 362 N.Y.S.2d 249 (App. Div. 1974); Robertson v. Commonwealth, 211 Va. 62, 175 S.E.2d 260 (Sup. Ct. 1967); State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (Sup. Ct. 1975). But see State v. Matousek, 287 Minn. 344, 178 N.W. 2d 604 (Sup. Ct. 1970) (dictum); State v. Tims, 9 Ohio St.2d 136, 224 N.E.2d 348 (Sup. Ct. 1967); State v. Henderson, 554 S.W. 2d 117 (Tenn. Sup. Ct. 1977). The use of documentary hearsay evidence is frequently justified on the basis of necessity as well as the qualities of accuracy, reliability and trustworthiness which it is likely to possess. Kay v. United States, supra at 480-481; State v. Kreck, supra 86 Wash.2d at 787-788, 542 P.2d 782; cf. State v. Martorelli, supra, 136 N.J. Super. at 454-455.
We are satisfied that Barrett‘s original payroll records, assuming they were compiled in the regular course of business, could have been admitted in this case without violating defendant‘s confrontation rights. The payroll records were likely to be more reliable than any recollection of the specific events they memorialized. For this reason the inability to cross-examine the person who recorded the wages paid to defendant would have presented no practical loss. At the time of trial, in June 1976, it is unlikely that any bookkeeper could have testified to anything other than the usual practice of recording such data. Defendant himself testified that he did work for Barrett during part of the time for which he claimed unemployment benefits. Establishing the exact dates of such work was the key issue in the trial. Business records are unusually competent for this purpose, even though other evidence may be available.
III
The ordinary conditions that must be satisfied before S-27 can be admitted as secondary evidence are that (a) Barrett‘s records would themselves have been admitted as business records under
Thus,
Having referred to the requirements of
IV
The Best Evidence Rule, embodied in
The prosecuting attorney advised the trial judge that he was unable to produce Barrett‘s original payroll records and time cards. He stated that Barrett moved three or four times and apparently lost defendant‘s records for the period in question. He stated, further, that he had talked with the executive director of the Ocean Leather Company, “which used to be Barrett & Company,” and was told that he did not
Next,
Authentication of the original or a copy of a writing is required before it may be received in evidence. Authentication may be by evidence sufficient to sustain a finding of its authenticity or by any other means provided by law.
Ample proofs were offered to establish that S-27 was prepared by Robertson in the course of his regular employment and contained data copied from records identified by Barrett‘s head bookkeeper as payroll records and time cards. Thus, the trial judge was justified in concluding that S-27‘s authenticity was proved sufficiently for its use as secondary evidence of Barrett‘s business records.
The trial judge, however, did not determine the admissibility of S-27 as secondary evidence. As noted before, S-27 was admitted as an original record. The trial judge observed that the evidence offered sufficient guarantees of its reliability and that defendant was not prejudiced by the lack of cross-examination because payroll records were likely to be more accurate than an individual‘s memory long after the wages were paid and recorded. Nevertheless, the trial judge did not consider whether he should accept hearsay evidence under
Although S-27 appears to satisfy the quest for accuracy and reliability, sufficient attention was not given to the need to justify the use of such secondary evidence. The search for the original records was made on the eve of trial and during the trial. No one connected with Barrett was produced to testify as to the unavailability of the original records.
We are not satisfied that the State has made a sufficient showing of its inability reasonably to produce more and better evidence on these subjects. Compare Merrill v. United States, 365 F.2d 281 (5 Cir.1966), cert. den. 386 U.S. 994, 87 S.Ct. 1311, 18 L.Ed.2d 340 (1967). There was no evidence, hearsay or otherwise, describing the procedures used in making the records that Robertson examined. Some conclusions can be drawn from Robertson‘s testimony, although he described the records in general terms rather than in specific detail. It may well be that Robertson‘s testimony was the only source of proof reasonably available. However, a greater showing of necessity should have been made before asking a trial judge to accept such proof of the conditions for admitting secondary evidence of business records in the circumstances of this case.
V
The last issue to be considered relates to the kind of intent required for a violation of
Any person who, knowingly or designedly, by means of any false statement made orally or in writing, or by means of concealing or failing to disclose a material fact which it is his duty to reveal, obtains * * * from any agency of the State or from any county or municipality * * * under pretense that he * * * is poor and needy or out of employment, any money * * * is guilty of a misdemeanor.
The trial judge stated that there was no need to find “a conscious intent to cheat * * * so long as there is an intentional misstatement or intentional concealment of employment status.” The trial judge suggested that defendant may have felt he was entitled to unemployment benefits, but that it was “immaterial, whether or not for one reason or another the claimant has devised his own idea of eligibility or entitlement.” The trial judge found no “express evidence” of an “intent to cheat and defraud.” His meaning is contained in his comment that defendant may have felt entitled to benefits much as many other claimants do “under varying circumstances of reduced unemployment [sic”] and “in a moral sense they may not feel that they are cheating anyone.”
As we read the trial judge‘s findings, defendant knowingly misrepresented his employment status to obtain money “under pretense that he is * * * out of employment.” These findings establish a violation of
Defendant relies on State v. Graves, 60 N.J. 441 (1972), which involved a similar statute,
Thus, the case at hand satisfies the intent standard which the Supreme Court in Graves found to be implicit in
State v. Del Vecchio, 142 N.J. Super. 359, 361 (App. Div.), certif. den. 71 N.J. 501 (1976), held that, since breaking and entering with intent to steal (
Within reasonable limits the Legislature may define a crime without regard to the state of mind accompanying the act of the transgressor, so that the mere doing of an act is a crime “even in the absence of the mens rea which was a necessary prerequisite at common law.” Morss v. Forbes, 24 N.J. 341, 358 (1957); State v. Quatro, supra, 31 N.J. Super. at 55-56. What the court said in Morss v. Forbes, supra, is relevant here:
* * * We should not, however, confuse intent with motive. Proof of motive is never essential to a conviction but may be evidential. * * *
The ordained inquiry is whether the act condemned was committed with full knowledge of the facts, in a conscious and purposeful manner, without legal justification or excuse. It must not be the product of inadvertence or negligence or any state of mind other than a free and untrammeled will. This is the definition of criminal intent embodied in the words “willfully and maliciously,” as used in this statute. The accused must intend to act in the way proscribed by the statute, but it is immaterial that he does not know or believe his conduct violates the law.
Even positive belief that the act is lawful should not exempt the doer from criminal responsibility. Consciousness of unlawfulness is not essential * * *. If ignorance were a good defense, the administration of the penal law would again depend upon the well-nigh impossible ascertainment of hazy and amorphous mental conditions and opaque logic. [24 N.J. at 359]
Quoting Judge Learned Hand in United States v. Crimmins, 123 F.2d 271, 272 (2 Cir.1941), Judge Kolovsky said in State v. Lambertson, supra, 110 N.J. Super. at 142-143, that “awareness by defendant of the existence of all those facts which make his conduct criminal” is what is meant by criminal intent and mens rea, “as distinct from the additional specific intent required in certain instances.”
For the purposes of this case it is sufficient to say that the trial judge made findings which establish the necessary intent to constitute a violation of
Conclusion
We have stated that S-27, purportedly containing information taken from Barrett‘s payroll records, was the only
Accordingly, we reverse and set aside the judgment of conviction and remand the matter for a new trial.2
Notes
We do not imply that all cases require proof that each item of included or multiple hearsay in business records or reports of public officials satisfies the included hearsay rule or that in all situations copies of original documents contained in or attached to business records must independently satisfy the best evidence rule. See State v. Martorelli, 136 N.J. Super. 449, 453 (App. Div. 1975), certif. den. 69 N.J. 445 (1976).
The 1963 Report of New Jersey Supreme Court Committee on Evidence indicates that the trial judge‘s discretion to admit some included hearsay contained in business records is found in the last clause of Evid. R. 63(13), namely, “if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission.” The Report states:
Rule 63(13) thus has, in effect, a built-in provision for the discretionary admission of included hearsay. It is to be expected that in a number of cases, the `sources’ of information on the basis of which a record has been made, will be another declarant who gave information to the declarant (the `maker’ or `entrant‘) who makes the business record that is introduced in evidence. Were it not for such a provision, each hearsay stage in a business record would have to be accounted for under Rule 66, and each hearsay statement included within the business record would have to fall within a separate hearsay exception. Since business records are frequently the product of many states of hearsay, a requirement that each stage be separately accounted for by a hearsay exception would be obstructive and impossible of fulfillment, thus destroying the effectiveness of the Rule. A more flexible approach is required and is provided by this Rule. The reliability of included hearsay statements is based on the regularity with which business is done, the routine quality of each transaction, the lack of motive to single out any transaction for the purpose of making an untrustworthy statement and the responsibility of each employee to make accurate and reliable statements. [Report, Comment on Rule 63(13), at 179-180 (1963)]