STATE OF NEW JERSEY v. ROBERT McDONALD (2011)

Defendant and his daughter, Sally McDonald, were indicted and charged with theft by deception and other similar offenses.   In this appeal, we consider and reject, among other things, defendant's argument that his convictions cannot stand because the trial judge rejected his proffer of evidence regarding Sally's other bad acts.

Our story, as revealed by the evidence that unfolded at trial, starts with Jagadeesan Poola (Poola).   After earning a college degree in India, Poola came to this country to further his education but ultimately established a business in the textile industry in New York City. Poola later partnered with another textile company, St. Andrews Textiles, which employed defendant as a salesman.   Poola and defendant formed a close business and personal relationship lasting almost thirty years;  they socialized, made investments, and traveled together.   In 1999 and 2000, Poola lent defendant money to purchase race horses;  defendant repaid Poola with interest.

In late 2000 or early 2001, defendant approached Poola about an opportunity to purchase a horse farm in Kentucky.   Specifically, defendant intended to enter into a partnership with Joseph Holloway, a Kentucky horse trainer, to expand his horse-related business.   Defendant asked Poola for $650,000, promising to pay interest and a portion of his profits in return.   Because of their close friendship, this agreement was not reduced to writing.   Poola provided defendant with a personal check dated April 4, 2001, payable to McDonald Racing Stable, in the amount of $675,000.

Defendant never fully repaid Poola, making only small interest payments.   In October 2001, defendant approached Poola for a second loan, in the amount of $500,000, to buy out a third partner.   Sally McDonald faxed a letter to Poola on October 25, 2001, stating that “for the $500,000, Mr. Holloway would return to Mr. Poola $580,000 and increase the interest payments from $9,000 a week to $18,000 a week.”   Sally repeated this in a faxed letter, sent on January 30, 2002, also noting that Holloway would pay Poola in full by the end of February 2002.   Poola provided a check for $500,000, payable to McDonald Racing Stable.

Poola testified that the verbal agreement called for him to be repaid as soon as the land was sold-estimated at six to eight weeks-which would generate a $130,000 profit.   Poola's $500,000 check was deposited in a joint account maintained by defendant and Sally with The Trust Company of New Jersey (TCNJ).  Within the month, however, TCNJ sued defendant, Sally, and the McDonald Racing Stable, alleging that Sally engaged in a check-kiting scheme with a TCNJ employee.

Over the next three years, defendant provided Poola with numerous excuses for nonpayment, ranging from problems with banks to problems with individuals to problems caused by restraints imposed in the TCNJ suit on defendant's assets.

On June 17, 2002, McDonald Racing Stable faxed Poola details of a $500,000 wire transfer from Holloway;  no payment, however, was received.   After waiting two more days, Poola made inquiry.   On June 19, 2002, McDonald Racing Stable faxed Poola information about a second wire transfer;  again, Poola received nothing.   A third wire transfer was promised but unfulfilled.   To prove Holloway had the money, defendant faxed Poola copies of bank checks and deposit slips suggesting Holloway had in excess of $2,000,000.   Defendant also faxed a letter allegedly written by Holloway explaining the delay on the use of an account in a new bank.

On October 1, 2002, defendant provided Poola with a series of bad checks.   The first was a $580,000 PNC Bank cashier's check from Holloway payable to Poola.   The second and third were PNC Bank checks from Holloway payable to Jackson Garments Import, Inc., Poola's company, in the amounts of $495,000 and $895,000.   All three were dishonored.   When confronted, defendant blamed the bank and reassured Poola.   Defendant also said he would arrange a wire transfer to occur on October 10, 2002;  that never occurred.   Thereafter, Poola was told Holloway would send a check by overnight delivery.   Poola received a copy of a FedEx receipt but no check, and Poola later learned that the provided tracking number on the receipt was fictitious.   Defendant told Poola that Holloway sued PNC Bank and, in support of this claim, provided Poola with a copy of a falsified judgment entered in favor of Holloway and against PNC Bank, dated October 24, 2002, in the amount of $2,954,089.

On January 3, 2003, defendant again provided Poola with three cashier's checks, which were later dishonored, and more documents purporting to have been issued from the Superior Court of Delaware.

In April 2003, St. Andrews Textiles closed its doors, and as a result, defendant claimed he no longer had income.   In June 2003, defendant said he would repay Poola from his pension account.   Instead, in July 2003, defendant called Poola asking for help because he was facing foreclosure.   Notwithstanding defendant's false and empty promises of repayment, Poola sent a check on defendant's behalf to the Monmouth County Sheriff in the amount of $159,209.82.   On July 30, 2003, defendant executed a handwritten promissory note in favor of Poola.

At this juncture, defendant began referring to the involvement of a judge sitting in Hudson County (hereafter “the Hudson judge”), who was presiding over the TCNJ suit.   Defendant falsely claimed the Hudson judge was a close friend who was helping him get money released from his bank account, which had been frozen by restraints entered in the TCNJ suit.   Defendant provided Poola with copies of letters allegedly written by the Hudson judge explaining his efforts;  the letters were fictitious.

In December 2003, after providing more worthless checks, defendant faxed Poola copies of documents suggesting that transfers had been made from the trust account of TCNJ's attorneys to Poola in the amounts owed.   When the funds did not arrive, defendant provided a letter allegedly written by TCNJ's attorneys to the Hudson judge apologizing for a botched transfer of funds.   On December 4, 2003, defendant faxed Poola more instructions regarding wire transfers but no money was ever transferred.

Poola continued to demand repayment.   In April 2004, defendant began referring in his conversations with Poola to an assistant deputy public defender (the public defender).   Defendant informed Poola that the public defender had represented defendant in another matter and was helping him get access to his money.   Defendant provided Poola with a fictitious letter, allegedly written by the public defender, explaining the delays and documenting his help, along with the help of the Hudson judge, to retrieve his money.   Thereafter, defendant provided letters allegedly written by the Hudson judge to defendant advising that his money had been released and placed into a superior court account.   Poola still received nothing.

Defendant continued to attribute the delay in payment to external forces.   In a letter dated March 1, 2005, defendant confirmed that $1,409,209.82 was due, and promised repayment with interest.   Later, on June 24, 2005, defendant notified Poola by letter that funds would be released after June 28, 2005.   Poola, encountering financial troubles of his own, began pressing defendant for documentation concerning the disbursement of the funds.   Nothing was provided.   Instead, defendant sent a letter dated August 19, 2005, from a bank to the public defender, advising the checks would be released on September 7, 2005.   That too never occurred.   Instead, defendant faxed copies of Bank of America checks dated September 13, 2005, payable to both Poola and Jackson Garments, in the amounts of $879,000 and $1,975,000.   Defendant continued to provide letters allegedly exchanged between the public defender and the Hudson judge, as well as those allegedly written by two Monmouth County superior court judges.   All these letters and claims were fictitious;  like many of defendant's false promises, the names of real persons, such as these judges and attorneys, were mixed in with false claims as to their involvement or efforts, and documented by forged letters and documents.

In November 2005, Poola met personally with defendant, at which time defendant presented two certified checks, dated November 18, 2005, in the amounts of $1,975,000 and $879,000;  both checks were dishonored.   More unfulfilled representations were made to Poola and insubstantial documentation provided in December 2005 and January 2006.   Defendant did not again communicate with Poola, and Poola was never repaid.

On August 28, 2006, defendant and Sally were indicted and charged with various offenses relating to these events.   Sally entered a guilty plea and was sentenced to a twelve-year prison term on August 8, 2008.

The case against defendant went to trial in March and April 2009.   The evidence demonstrated that some of the names referred to by defendant in his excuses were fictitious and the real persons referred to, such as the Monmouth County judges, as well as the public defender, had no involvement with defendant or any of his machinations.   The Hudson judge was only involved to the extent he presided over the TCNJ suit and issued appropriate orders in connection with that suit;  all other statements or writings attributed to the Hudson judge were false.

Defendant testified, claiming he was only a silent partner in the horse racing business operated by Sally and, like the others, was victimized by Sally's wrongdoing.

Sally also testified.   She conceded responsibility for all wrongdoing, including the forged checks, and claimed defendant was unaware of her illegal activities.   She acknowledged signing defendant's name on checks and concocting the whole scheme to obtain money from Poola.

At the conclusion of the eight-day trial, defendant was convicted by a jury of second-degree theft by deception, N.J.S.A. 2C:20-4, two counts of second-degree uttering of bad checks, N.J.S.A. 2C:21-5, and fourth-degree forgery, N.J.S.A. 2C:21-1a(1).   Defendant was sentenced to concurrent five-year prison terms on all convictions, except the forgery conviction, for which defendant received a one-year concurrent prison term.   Other fines and assessments were imposed;  restitution was not ordered because Poola and Jackson Garments had already obtained a civil judgment against defendant and others in a suit in federal district court.

Defendant appealed, posing the following arguments for our consideration:

I.  THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO ADMIT N.J.R.E. 404(b) EVIDENCE CONCERNING PREVIOUS ACTIONS BY CO-DEFENDANT SALLY AND INSTEAD GRANTED THE STATE'S MOTION IN LIMINE.

II. THE COURT FAILED ITS GATEKEEPING RESPON-SIBILITIES WHEN IT DID NOT ISSUE ANY LIMIT-ING INSTRUCTIONS ON EVIDENCE WHICH CONSTI-TUTED OTHER-CRIMES EVIDENCE AGAINST THE DEFENDANT.   THE EVIDENCE ADMITTED SHOULD HAVE BEEN SEVERELY LIMITED OR PRECLUDED IN THE FIRST INSTANCE.   THE DEFENDANT HAS BEEN DE-PRIVED OF A FAIR TRIAL (Not raised below).

A. The Failure to Issue Limiting Instructions.

B. The Evidence constituted Other-Crimes Evidence pursuant to N.J.R.E. 404(b).

III. THE PROSECUTOR'S COMMENTS DURING OPENING AND CLOSING ARGUMENTS DEPRIVED THE DEFENDANT OF A FAIR TRIAL (Not raised below).

IV. THE COURT'S CHARGE TO THE JURY CONTAINED ENOUGH ERRORS THAT THE CUMULATIVE EFFECT WAS TO DEPRIVE THE DEFENDANT OF A FAIR TRIAL (Partially raised below).

A. Mental States-Purposely & Knowingly.

B. Bad Checks Charge.

C. Oral Statements Charge.

D. Jury Question.

V. THE COURT ERRED WHEN IT DENIED THE DEFEN-DANT'S MOTION FOR A JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1.   IN THE ALTERNATIVE, THE COURT SHOULD HAVE CONSIDERED AND GRANTED THE DEFENDANT A NEW TRIAL PURSUANT TO R. 3:20-1 (Partially raised below).

A.R. 3:18-1 Motion.

B.R. 3:20-1 Motion.

VI. THE COURT SHOULD HAVE DOWNGRADED THE DEFENDANT'S SECOND-DEGREE CONVICTIONS TO THIRD-DEGREE SENTENCES IN THIS MATTER.

We find insufficient merit in Points III through VI to warrant discussion in a written opinion.   R. 2:11-3(e)(2).   We reject defendant's other arguments for the following reasons.

I

Defendant's principal position at trial was that he was not an actor but a victim of his daughter Sally's orchestration of the events outlined in the State's proofs.   In fact, as noted above, Sally testified and admitted she was the prime mover in the offenses for which defendant was charged.   Defendant claims, however, that he was limited in his submission of evidence to support this theory because the trial judge mistakenly denied the admission of evidence of Sally's other unlawful conduct.   Specifically, defense counsel advised the judge prior to trial of defendant's intention to call family members who claimed to be victims of Sally's other but similar unlawful conduct.   The State moved to suppress this testimony.

In granting the State's motion, the trial judge analyzed the proposed evidence in light of N.J.R.E. 404(b), as well as N.J.R.E. 403.   Relying also on the factors set forth in State v. Cofield, 127 N.J. 328 (1992), the judge held that defendant's proffered evidence had “a strong possibility of misleading the jury” and that “[w]hether Sally McDonald committed similar acts in the past is simply not relevant to whether Robert McDonald committed the crimes charged here.   The testimony of these witnesses must be limited to what they know about this case and not ․ others.”   Defendant asserts this evidence was capable of producing a reasonable doubt and its exclusion prejudiced his right to a fair trial.

An accused is entitled to a meaningful opportunity to present a complete defense, State v. Cotto, 182 N.J. 316, 332-33 (2005), which includes the right to introduce evidence of the guilt of another “if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case,” State v. Fortin, 178 N.J. 540, 591 (2004).   The test is not whether the evidence substantially proves the guilt of another.  Ibid. The standard, rather, for introducing defensive other-crimes evidence “is lower than the standard imposed on ‘the State when such evidence is used incriminatorily [because] when the defendant is offering that proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility.’ ”  State v. Cook, 179 N.J. 533, 566 (2004) (quoting State v. Garfole, 76 N.J. 445, 452-53 (1978)).

A determination on the admissibility of defensive other-crimes evidence is “highly discretionary” and turns on a principled weighing and balancing of the factors encompassed by N.J.R.E. 403.  Cook, supra, 179 N.J. at 568.   As a result, trial judges “retain broad discretion to admit or preclude evidence of third-party guilt,” and we will not intervene absent an abuse of that discretion.  Cotto, supra, 182 N.J. at 333.   Having considered these principles, we find no abuse of discretion here.   The judge balanced the evidence's limited relevance with the fact that its admission would unduly consume time and tend to confuse the jury, all important factors in determining admissibility in this context.

Even if it could be said the judge erred in this regard, it caused no harm.   When offered by the State, N.J.R.E. 404(b) evidence is intended to generate an inference as to the occurrence of one or more of the elements of a charged crime.   When used by the defense, it is intended to generate an inference that a third person was responsible for one or more of the elements of the offense charged against the defendant.   Here, defendant was able to do better than prompt an inference.   He produced direct evidence from the third person, Sally, as to her commission of the offenses for which defendant was charged;  Sally took the stand and testified she was the guilty party.   Thus, even if it could be said the judge erred in excluding evidence of Sally's prior bad acts, it only kept from the jury inferential evidence of something Sally already conceded.   Even if erroneous, the exclusion of this evidence was harmless in light of Sally's testimony.

II

Defendant contends the trial judge erred by failing to provide the jury with instructions concerning the State's evidence, which he claims tended to place him in a bad light.   Specifically, defendant argues (a) the State was improperly permitted to introduce evidence of the existence and result of the TCNJ civil suit;  (b) he was prejudiced by the absence of a curative instruction regarding, among other things, Holloway's testimony that a TCNJ attorney referred to Sally and defendant as “con people”;  and (c) the State improperly elicited testimony from a police detective regarding an unpaid $4600 judgment entered against defendant.   The arguments regarding the latter two assertions are of insufficient merit to warrant discussion in a written opinion.   R. 2:11-3(e)(2).   The references to defendant and Sally as “con people” and the reference to the $4600 judgment were too brief or inconsequential in light of the other evidence to cause any prejudice even if admission was erroneous.   We reject the first assertion for the following reasons.

The facts relating to the TCNJ suit were integrally related to this case, and defendant's claim that it was offered only as other bad acts evidence is mistaken.   As excuses for nonpayment, defendant provided Poola with, among other things, copies of letters referring to the Hudson judge and his alleged attempts to free up defendant's money from the restraints imposed in the TCNJ suit.   For example, Poola read to the jury defendant's March 24, 2004 handwritten letter, which stated:  “We have been advised many times that all the monies to cover the above amount plus all interest as agreed were being held in the Hudson County Court account in the name of Robert McDonald, due to a lawsuit which I am involved in.”

In addition, the Hudson judge was called by the State as a witness and testified at length about his rulings in the TCNJ suit.   The Hudson judge identified and described documents that revealed defendant was a party to the suit, that the suit settled, and that upon satisfaction of the relief obtained by TCNJ, the restraints imposed on all financial institutions holding funds belonging to the targets of that suit were lifted.   The judge then proceeded to disclaim any contact with defendant or any of the parties to the TCNJ suit thereafter or that he had any involvement with the parties other than those that occurred during legal proceedings in the TCNJ suit.   This evidence was not precluded by N.J.R.E. 404(b).  Instead, it was offered for the purpose of demonstrating that the excuses provided by defendant to Poola for his failure to timely repay the loan were false and felonious.

Defense counsel did not object to this testimony for the reasons now urged and, indeed, drew out further information regarding the TCNJ suit in his cross-examination of the Hudson judge.   Moreover, in his own direct examination, defendant confirmed he was a party to the TCNJ suit and that he ultimately paid the civil judgment.   During cross-examination defendant admitted he made restitution to TCNJ in excess of one million dollars in 2003 at the same time he was presenting Poola with bad checks.

Evidence is relevant if it has “a tendency in reason to prove or disprove any fact of consequence to the determination of the action.”  N.J.R.E. 401;  see also State v. Koskovich, 168 N.J. 448, 480 (2001).   Defendant's involvement in the TCNJ suit was relevant to the validity and accuracy of his excuses for failing to pay Poola.   Its probative value was significant and not substantially outweighed by the risk of undue prejudice.  N.J.R.E. 403.   Indeed, defendant did not object to this testimony because his theory was based on the assertion that defendant believed his daughter when relaying to Poola that his funds were tied up due to his involvement in the TCNJ suit.   References to that suit were essential to his pursuit of that theory, which could not be evaluated by the jury unless it understood the suit's nature and the surrounding circumstances.   As such, the testimony in question was integral to both parties' full presentation of the case.  State v. Martini, 131 N.J. 176, 242 (1993), overruled on other grounds, Fortin, supra, 178 N.J. at 646.

We also reject defendant's argument that the judge erred in failing to provide limiting or curative instructions regarding that testimony.   Defendant did not object or argue at trial that evidence regarding the TCNJ suit might be viewed as evidence within the parameters of N.J.R.E. 404(b).  When no request for a limiting or curative instruction is made, it must be shown that the judge's failure to give such an instruction sua sponte constitutes an error clearly capable of producing an unjust result.  State v. Mays, 321 N.J.Super. 619, 633 (App.Div.), certif. denied, 162 N.J. 132 (1999).   Defendant's late attempt to characterize the testimony in question as something other than that for which it was offered cannot now serve as a basis for a claim of plain error due to the judge's failure to give an instruction that was never requested.

Affirmed.

PER CURIAM