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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. IRLENE S. KELLER, Defendant-Appellant.

DOCKET NO. A-3408-08T4

Decided: December 29, 2010

Before Judges Axelrad and Lihotz. Yvonne Smith Segars, Public Defender, attorney for appellant (Kimmo Z. Hussain, Designated Counsel, on the brief). Dermot O'Grady, Acting Hunterdon County Prosecutor, attorney for respondent (Bennett A. Barlyn, Assistant Prosecutor, of counsel and on the brief).

Defendant Irlene Keller appeals from her conviction following a jury trial, wherein she and her husband, co-defendant Bruce Keller, were found guilty of second-degree aggravated arson, N.J.S.A. 2C:17-1(a)(3) (count one);  second-degree attempted theft by deception, N.J.S.A. 2C:20-4(a) and N.J.S.A. 2C:5-1 (count three);  third-degree attempted theft by deception, N.J.S.A. 2C:20-4(a) and N.J.S.A. 2C:5-1 (count four) and second-degree conspiracy, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:17-1(a)(3) (count five).   Another charge of third-degree arson, N.J.S.A. 2C:17-1(b)(3) (count two), which was included in the indictment, was dismissed by the State.

After merging count five with count one, the court sentenced defendant to a term of eight years imprisonment on count one, a concurrent eight-year term on count three and a four-year term on count four, to run concurrently with the sentence imposed on counts one and three.   The court also ordered applicable fines and assessments.

On appeal defendant argues:







Following our review of the issues presented on appeal, in light of the record and applicable law, we affirm.

The following facts are taken from the trial record.   On September 4, 2002, at 2:05 a.m., ADT, a home security company, notified several fire departments of an activated smoke detector at 281 Goritz Road in Alexandria Township.   The residence is owned by defendants, who were found standing in the street outside the residence when emergency personnel arrived.   The “large, hot, and intense” fire completely engulfed the 6,000 square foot residence.

While the fire was burning, State Trooper Melvin L. Sanders, II spoke with defendants.   Trooper Sanders noticed neither defendant complained of injuries and their clothes showed no sign of soot or fire damage.   The couple told Trooper Sanders they were awakened by the fire alarm and smelled gasoline.   Co-defendant advised there were gasoline canisters in the garage and on the front porch, although he could not explain why a gasoline canister was stored on the front porch.

Defendant explained the home was recently listed for sale with an asking price of $1,000,000, because she and co-defendant had recently moved to Virginia.   Trooper Sanders was also told the home was fully furnished.

Defendants requested to leave because co-defendant felt ill.   Trooper Sanders stated they were free to go as long as they provided contact information.   As defendants departed to a nearby hotel, Trooper Sanders saw clothing and personal belongings inside their van.

Later that morning, co-defendants arrived at the Kingswood Police Station.   State Police Detective William Harkness requested co-defendant to allow the State Police to search his 1993 Chevrolet van.   The purpose of the search was to examine the vehicle and co-defendant's clothing for accelerant.   Co-defendant was read the consent to search after being told the purpose and proposed extent of the search.   Defendants agreed and executed the consent to search form.

Detective Richard Warnett of the Morris County Sheriff's Office was called, along with his arson canine, Hoka, to search the vehicle at the State Police Barracks.   During the search of the interior of the van, Hoka “indicated” the presence of an accelerant on the rear floor area behind the passenger side front seat and on the rear cargo floor area.   Next, Hoka inspected defendants' clothing.   Hoka detected no accelerant on co-defendant's clothing, but “indicated” an accelerant was present on defendant's shoes.   Detective Warnett and Hoka also went to the scene of the fire.  “Hoka gave a positive indication to the presence of accelerant odor on the floor area near the remains of the fireplace.”

Detective Edward A. Ditzel, Jr., of the State Police Arson/Bomb Unit, had been detailed to the home two hours after the blaze began to investigate the cause and origin of the fire.   During his initial investigation, Detective Ditzel observed the structure, the blaze which had not yet been extinguished, and interviewed several firefighters who had responded to the call.   Based on the volume and irregular burn patterns of the fire, Detective Ditzel suspected an accelerant was used.

Later that day, Detective Ditzel conducted a full investigation of the remains of the home.   His search yielded three gasoline containers, one in the northeast side walkway leading to the home, one near the north wall of the garage, and one inside the garage next to a vehicle.   Detective Ditzel noticed deeper burn patters in various places in the home, and a steal support beam compromised by the heat and intensity of the fire.   These facts confirmed his conclusion that “a flammable liquid substance [ ] had been poured through the structure.”

Detective Ditzel also noted the dearth of personal property in the residence.   In his investigation, he “found the remains of a piano, ․ some remains of a bed, a spring in a bed, ․ a couple of very small figurines, and a couple of towels, that was it.”   Astonishingly, the fire reignited at the end of the first day, causing Detective Ditzel to turn the scene back over to the fire department to be extinguished.

After obtaining a search warrant, Detective Ditzel re-inspected the scene the following day.   When entering the basement, which suffered very little fire damage, he detected a strong smell of chemicals.   He located an empty, uncapped one-gallon container, labeled “Parks xylene,” that had been turned upside down.   Detective Ditzel knew xylene, a paint thinner, was an accelerant having almost the same chemical properties as gasoline.   The container, lid, and samples of the liquid found on the floor were turned over to the New Jersey State Police Laboratory for testing.

Detective Ditzel also searched the three detached barns located on the property, none of which had suffered fire damage.   In the barns he found personal items, such as family photographs, home videos, children's toys, and art work.   The items were “boxed as if somebody was planning on moving the boxes.”   After the investigation was completed, Detective Ditzel testified it was his opinion that the fire “was an incendiary fire, it was arson, it was an intentionally set fire[,]” started by a flammable liquid.

Dr. George Chin of the State Police Office of Forensics Scientists tested the recovered items for accelerants.   Dr. Chin tested defendant's shoes and nightgown, which were positive for xylene, however, it was not discerned whether the chemical was used in the manufacture of the clothing or on the items' surface.   The metal container labeled “Parks xylene” also tested positive for xylene.

Steven Magnotta, a senior adjustor for Chubb Insurance Company (Chubb), also testified.   Chubb insured defendants' home for $1,126,000 and insured the contents for $788,200.   Defendants had submitted a fire loss claim seeking $1,718,330.56 for damage to the structure and $841,200 for loss of its contents.   Chubb denied the claim “[b]ased on [its] investigation and the facts uncovered by the local authorities” as “it was determined that the insured were involved in the fire” and that the fire “was arson.”

Richard Vera, an agent with the Bureau of Alcohol, Tobacco, and Firearms also testified for the State.   In 2003, he reviewed the case file and assisted in the investigation.   He learned defendants had purchased a home in Virginia in 2002.   They first expressed interest in buying the Virginia property in 1999 and listed their New Jersey home for sale.   After the Virginia property had been removed from the market, defendants removed their residence from the market as well.   When the Virginia property was re-listed for sale in 2002, defendants contracted to purchase the house, contingent upon the sale of their New Jersey home.   Eventually, the contingency was removed and defendants purchased the Virginia realty.   Defendants refinanced the New Jersey residence, withdrawing its equity to obtain the necessary funds to close on the Virginia realty, resulting in outstanding mortgages on both properties.   E-ZPass records confirmed defendants had frequently traveled to and stayed for periods of time in Virginia beginning in July 2002, leading to the conclusion that they had moved to the Virginia residence.

The State presented additional witnesses including:  (1) State Trooper Michael Budrewicz, who had been dispatched to the home a week earlier on a burglary call and noted the home was void of furnishings;  (2) George Van Lear, an employee of Liberty Transportation and Storage in Union, who had provided an estimate to move the contents of defendant's New Jersey home to Virginia but did not complete the move which defendants had rescheduled for September 17, 2002;  (3) Kerry Beth Floyd, volunteer fire photographer, who photographed the scene;  (4) other volunteer firefighters who responded to the blaze;  and (5) Patricia Smith Harris, a Weichert Realty agent, who listed defendants' New Jersey realty for sale in 1999.

Defendants did not testify.   Defense witnesses included Margaret McDonald, a realtor with List My House U.S.A., who toured defendants' residence one week before the fire in an effort to list it for sale and noted it had furniture, and Alex Senzchaliewicz, a neighbor who walked his dog past the home the prior week and saw the piano and living room furniture through the window.

At the conclusion of trial, the jury found defendants guilty.   Defendant timely filed her appeal.

Defendant first asserts the trial court erred in denying her pre-trial motion to suppress the physical evidence discovered in the search of the van and her clothing.   She argued she was in shock at the time and her stressed mental state obviated the voluntariness of any consent.   Following a hearing, Judge Mahon denied the motion after he determined the consent was informed and freely given.

Defendant repeats the arguments advanced before Judge Mahon.   She suggests at the time her consent was given, she was

not in a position to knowingly and voluntarily waive [her] rights based on [her] stressed mental state of mind․  This stress arose from the reality that their home had burned down the night before and from the fact that they had not been able to rest for a significant period of time.

Defendant further contends the consents were coerced because the requests were made at the police station.   We find these arguments unavailing.

The Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against unreasonable searches and seizures.   U.S. Const. amend.   IV;  N.J. Const. art.   I, ¶ 7. “For a search to be deemed constitutional, a warrant is required based upon probable cause unless [the search] falls within one of the few well-delineated exceptions to the warrant requirement.”  State v. Privott, 203 N.J. 16, 24 (2010) (alteration in original) (internal quotations and citations omitted).

“A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home.”  State v. Domicz, 188 N.J. 285, 305 (2006).   Furthermore, “consent searches are considered a ‘legitimate aspect of effective police activity.’ ”  Ibid. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 2048, 36 L. Ed.2d 854, 863 (1973)).

“[T]o determine whether a person's consent was voluntarily given or coerced, the proper analytical framework is whether a person has knowingly waived his [or her] right to refuse to consent to the search.”  Id. at 308.   An essential element of whether consent was voluntary is “ ‘knowledge of the right to refuse consent.’ ”  Id. at 317 (quoting State v. Johnson, 68 N.J. 349, 353-54 (1975)).

Applying those principles to the case at hand, we determine Judge Mahon's findings are reasonably reached “on sufficient credible evidence present in the record.' ”  State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

The police officers explained the reasons for the search request;  detailed the areas they intended to search;  informed defendant she could refuse, attend the search, withdraw her consent at any time or leave if she desired;  revealed the specialized training of Hoka;  read the forms to the defendants individually;  issued defendant her Miranda 1 warnings;  allowed defendants to confer with each other and gave defendant sufficient time to review the form prior to her execution.

The officers testified that there were no threats or promises made to defendant to induce her cooperation and their weapons were not displayed.   As to defendant's demeanor, the detectives stated she was tired and upset, but neither hysterical nor uncontrolled.   Defendant executed the form giving her consent and checked that she did not waive her right to be present.   She changed her clothing, handed over the attire worn the night before, then watched Hoka from a safe distance.   At one point, she requested the interview end.   She was permitted to leave as she was not under arrest.

We, of course, defer to the factual findings and credibility determinations of the trial judge who was in a unique position to observe the challenged events at trial.  Locurto, supra, 157 N.J. at 471.   We discern no warrant for interference with those findings.   Consequently, we find no error in the court's denial of defendant's mistrial motion.

Crediting the officers' testimony, Judge Mahan determined “the consents were freely and voluntarily given before the searches were conducted.”   Deferring to the credibility findings of the court, which were “ ‘substantially influenced by the opportunity to hear and see the witnesses and to have the “feel” of the case, which a reviewing court cannot enjoy[,]’ ” Locurto, supra, 157 N.J. at 471 (quoting Johnson, supra, 42 N.J. at 161), we have no basis to disturb Judge Mahan's conclusion to deny the request to suppress the evidence found incident to the search.

But for the fact that her residence was consumed by fire, defendant offers no evidence that her state of mind was anything but lucid when she consented to the search.   There is no action or omission of the police showing coercion or threats.   Defendant clearly understood her rights as evinced by her decision to watch the search, terminate questioning and leave the police barracks.   We conclude the searches were not constitutionally infirmed as they were performed following receipt of a voluntarily consent by a defendant fully informed of her rights.

Defendant also asserts the court erred in denying her motion for acquittal following the verdict, arguing the jury verdict is against the weight of the evidence.   A party claiming that a jury verdict is against the weight of the evidence must file a motion for a new trial with the trial court, within ten days following the verdict.   R. 2:10-1;  State v. McNair, 60 N.J. 8, 9 (1972);  State v. Perry, 128 N.J.Super. 188, 190 (App.Div.1973), aff'd, 65 N.J. 45 (1974).   Rule 2:10-1 states:

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for new trial on that ground was made in the trial court.   The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

We are precluded from reviewing defendant's arguments as she failed to seek review from the trial court.

Even if we entertained this issue in the interest of justice, State v. Smith, 262 N.J.Super. 487, 511-12 (App.Div.), certif. denied, 134 N.J. 476 (1993), we reject defendant's argument.   Rule 3:18-1 requires the court to enter a judgment of acquittal if the evidence is insufficient to warrant a conviction.   The standard to be applied by the court in determining this issue is set out in State v. Reyes, 50 N.J. 454 (1967).   The question to be determined on a motion for judgment of acquittal is:

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Id. at 459.]

In this regard, “a jury may draw an inference from a fact whenever it is more probable than not that the inference is true;  the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference.”  State v. Kittrell, 145 N.J. 112, 131 (1996) (quoting State v. Brown, 80 N.J. 587, 592 (1979)).   Further, the court “is not concerned with the worth, nature or extent” of the evidence, “but only with its existence, viewed most favorably to the State.”  State v. Speth, 323 N.J.Super. 67, 81 (App.Div.1999).

We review the decision of the trial judge de novo, applying the same standard.   See State v. Bunch, 180 N.J. 534, 549 (2004).

Defendant contends she cannot be guilty of the crimes charged unless the evidence was sufficient to permit a jury to find beyond a reasonable doubt that she set the fire and attempted to defraud Chubb by submitting a false list of items claimed lost in the fire.   We are not persuaded and conclude that there was sufficient evidence to prove defendant's guilt beyond a reasonable doubt.

After “viewing the State's evidence in its entirety, be that evidence direct or circumstantial” and after “giving the State the benefit of all its favorable testimony, as well as all of the favorable inferences which reasonably could be drawn therefrom,” we conclude a reasonable jury could find defendant guilty of the charge beyond a reasonable doubt.  Reyes, supra, 50 N.J. at 459 (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L. Ed.2d 396 (1962));  see also State v. Denofa, 187 N.J. 24, 44 (2006);  R. 3:18-1.

The State submitted evidence that showed an accelerant was used to start and enflame the fire, defendant's shoes tested positive for an accelerant and residue was found in the van.   Defendant had been carrying an increased obligation for mortgage payments over several years and the insurance proceeds, if paid, would have exceeded the sums heretofore offered via a sale of the residence.   Defendants had moved to Virginia in 2002 and most of their possessions were not in the home when the blaze erupted.   Neither defendant suffered injury from the blaze nor soot on their clothing.   Taken together, the evidence was sufficient to allow a rational jury to determine her guilt for conspiracy, aggravated arson, and theft by deception.   Accordingly, the court properly denied the motion.

Lastly, defendant asserts her sentence was manifestly excessive and constitutes an abuse of discretion.   Finding as aggravating factors that defendant may commit another offense, N.J.S.A. 2C:44-1(a)(3), and the need for deterrence, N.J.S.A. 2C:44-1(a)(9), and no mitigating factors, the court imposed an aggregate eight-year flat term.   Defendant suggests the court failed to properly articulate the reasons for sentencing defendant above the minimum term.

Our review of the trial judge's sentencing decision is quite limited.   State v. Gardner, 113 N.J. 510, 516 (1989).   We will not substitute our judgment for his.   State v. O'Donnell, ll7 N.J. 210, 215 (1989);  State v. Roth, 95 N.J. 334, 365 (1984).   Modification is only necessary if the judge mistakenly exercised his broad discretion and imposed a sentence that shocks the judicial conscience.  Id. at 364.

Based upon our review of the record, the sentence is permitted by statute, does not shock our judicial conscience, Id. at 364-65, and is not unduly punitive.  State v. Morton, 292 N.J.Super. 92, 99 (App.Div.1996).   We discern no abuse of discretion and no reason to interfere.  Roth, supra, 95 N.J. at 364.



FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966)..  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).


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