Opinion
DOCKET NO. A-4663-11T1
01-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHAWN SOUTHERLAND, a/k/a KEITH DAVIS and SHAWN OBEE, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Ryan Gaffney, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Haas and Higbee. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-10-1750. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Ryan Gaffney, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
A Hudson County grand jury returned a three-count indictment charging defendant Shawn Southerland with first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); third-degree hindering apprehension or prosecution by way of concealment or destruction, N.J.S.A. 2C:29-3(b)(1) (count two); and third-degree hindering apprehension or prosecution by giving false information to a law enforcement officer, N.J.S.A. 2C:29-3(b)(4) (count three). Defendant filed a motion to waive his right to an attorney and to represent himself. On February 18, 2011, the court granted defendant's motion and appointed his public defender to serve as standby counsel. The court thereafter denied defendant's subsequent motions for the appointment of new standby counsel.
Over the course of the pre-trial proceedings, the court denied defendant's motions to suppress certain evidence. The court also denied defendant's motions to dismiss the indictment, although, on November 10, 2011, the court granted defendant's motion to dismiss count three of the indictment. On December 7, 2011, the court granted defendant's motion to waive his right to a trial by jury.
Judge Francis B. Schultz conducted a nine-day bench trial on various dates between January 10, 2012 and February 1, 2012. On February 1, 2012, the judge rendered a comprehensive oral decision finding defendant guilty of counts one and two.
On March 16, 2012, Judge Schultz denied defendant's motion for acquittal and for a new trial. On that same date, the judge sentenced defendant to thirty years in prison, with a thirty-year period of parole ineligibility on count one, and to a concurrent five-year prison term on count two. The judge also ordered defendant to serve a five-year term of parole supervision upon his release, and imposed appropriate fines and penalties. This appeal followed.
On appeal, defendant has raised the following contentions:
POINT I
STANDBY COUNSEL WAS PER SE INEFFECTIVE IN THIS MATTER THEREBY VIOLATING [DEFENDANT'S] FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
A. Once Assigned As Standby Counsel, Standby Counsel Must Provide Effective Assistance to Pro Se Defendants.
B. Standby Counsel Provided Actual Ineffective Assistance To [Defendant], And/Or The Relationship Between [Defendant] And Standby Counsel Was Such That The Court Should Have Granted One Of [Defendant's] Numerous Motions To Have Standby Counsel Replaced.
POINT II
THE MOTION TO SUPPRESS THE OUT-OF-COURT IDENTIFICATIONS SHOULD HAVE BEEN GRANTED BECAUSE THE STATE'S FAILURE TO RECORD
NECESSARY DETAILS OF THE PHOTOGRAPHIC IDENTIFICATION PROCEDURE WAS CONTRARY TO STATE V. DELGADO
Defendant filed a supplemental brief on his own behalf and has raised the following contentions:
POINT [III]
THE TRIAL COURT COMMITTED REVERSIBLE ERROR OF LAW BY GRANTING THE STATE'S MOTION TO ADMIT ALLEGED NON[-]CUSTODIAL STATEMENT[S] MADE TO BAYONNE POLICE OFFICER PONIK WHERE ANY ALLEGED STATEMENT[S] WERE ACQUIRED AND OBTAINED IN VIOLATION OF DEFENDANT'S RIGHT AGAIN[S]T UNREASONABLE SEARCH AND SEIZURE U.S. Const., Amend. IV and XIV[,] N.J. Const., Art. 1, Par. 7 AND CONTRARY TO THE WIRETAP ACT., N.J.S.A. 2A:156A-1, et. seq., AND BECAUSE, DEFENDANT WAS PREJUDICED THEREBY, IS ENTITLED TO REVERSAL OF HIS CONVICTION AND NEW TRIAL.
A. Application Of Improper Standard To Determination Of State's Motion To Admit Certain Alleged Statement[s].
B. Ponik Had No Prior Authorization To Set Up Telephone Surveillance And Eavesdrop Under The Wiretap Act.
C. The Order Of The Trial Court Should Be Suppressed R. 2:5-4.
POINT [IV]
THE MOTION TO SUPPRESS PONIK'S TESTIMONY SHOULD HAVE BEEN GRANTED BECAUSE THE TRIAL [COURT] COMMITTED REVERSIBLE ERROR OF LAW BY RULING THAT THE OFFICER'S INTRUSION WHETHER IT WAS FOR ONE HOUR OR SIX HOURS WAS NOT A SEARCH[.] THOMPSON V. LOUISIANA, 469 U.S. 17 (1984) (QUOTING MINCEY V. ARIZONA, 437 U.S. 389 (1978)[)]
A. Ponik's Apparent Lawful Entry Was Not An Invitation To Convert Defendant's Residence Into Sort Of Public Place For Which No Warrant Would Be Necessary.
B. Defendant Has A Proprietary, Possessory And Property Interest In His Belongings That Remained Inside His Apartment There Was No Abandonment.
POINT [V]
DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR FOR DISMISSAL OF INDICTMENT SHOULD BE GRANTED FOR ABUSE OF PROCESS USE OR TAINTED EVIDENCE IN GRAND JURY TO ASSUME JURISDICTION N.J.S.A. 2C:1-3 a(1) AS ATTENDANT CIRCUMSTANCES IN VIOLATION OF U.S. Const., Amend V AND XIV, AND DEFENDANT'S CONSTITUTIONAL RIGHT TO A LEGALLY CONSTITUTED GRAND JURY.
A. The Tainted Evidence Permeates The Indictment And Its Use At The Grand Jury Violated Fundamental Fairness.
B. The Indictment Was Palpably Defective And Manifestly Deficient.
POINT [VI]
THE TRIAL COURT COMMITTED PLAIN ERROR OF LAW BY FAILING TO RECUSE HIMSELF SUA SPONTE ON HIS OWN OBLIGATORY MOTION WHICH DENIED DEFENDANT HIS DUE PROCESS RIGHT TO A FAIR, UNBIASED, IMPARTIAL TRIAL COURT AS GUARANTEED BY FEDERAL AND STATE CONSTITUTION; [CANON] 3 C CODE OF JUDICIAL CONDUCT AND R. 1:21-1 . . . WHICH REQUIRES REVERSAL OF DEFENDANT'S CONVICTION AND NEW TRIAL (Not Raised Below).
A. The Trial Court Had To[o] Much Personal Knowledge Of The Disputed Evidentiary Facts To Sit As The Fact Finder.
B. The Trial Court Apparently Knew Prior To Trial That Defendant Had Been Involved In Plea Discussions [and] Was Previously Convicted In An Unrelated Case.
POINT [VII]
THE CUMULATIVE EFFECT OF THE ISSUES COMPLAINED OF RENDERED THE TRIAL UNFAIR.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
I.
The State developed the following proofs at trial. The victim, C.N., lived in Bayonne with her fourteen-year-old son, J.N. Defendant and C.N. met in 2002 when they were in law school together and, in December 2005, defendant moved into C.N.'s apartment. J.N. described the relationship between C.N. and defendant as "crazy," explaining that they used to "fight every day." In January 2007, defendant moved to Texas, but he returned to the apartment in late March 2007.
We use initials to identify the victim and her family members in order to protect their privacy.
On the morning of April 4, 2007, C.N. did not wake J.N. for school as she usually did. He got dressed and went to C.N.'s bedroom to say goodbye. The door was closed and, as he approached, J.N. testified that defendant stepped in front of the door, and prevented him from going inside. J.N. then left the apartment. He did not hear any sounds coming from inside C.N.'s bedroom that morning, nor had he heard anything unusual the previous night. J.N. stated he usually stayed in his room in the evening playing videogames and watching television.
When J.N. returned home from school at approximately 4:00 p.m., defendant was in the apartment, but C.N. was not there. J.N. asked defendant about C.N., and defendant told the child he had not seen the victim. J.N. noticed that a white blanket and some of his mother's personal "accessories" were missing from C.N.'s bedroom.
J.N. testified that defendant gave him some money to buy food at a take-out restaurant and then followed the child there on a bicycle. When they returned home, defendant stated he had to leave because his aunt was "sick[,] . . . in the hospital, tied to a machine, she's getting ready to die[.]" Defendant took "all his stuff with him" when he left. J.N. testified defendant used to borrow a Silver Kia from someone he identified as "his aunt" and, after defendant left that night, he never saw defendant or the car again.
Defendant's friend, C.V., testified that defendant borrowed her 2001 Kia on April 3, 2007 and, when he returned it in the early evening on April 5, it had two flat tires. Defendant stayed at C.V.'s home until April 9, when she drove him to a train station.
J.N. notified his school of his mother's disappearance and, two or three days later, he went to his grandmother's house in New York City to tell her C.N. was missing.
On the morning of April 7, 2007, a New York City Department of Transportation employee found the body of a woman inside a black duffel bag along the Henry Hudson Parkway in New York, about twenty-five miles from Bayonne. The employee testified he did not see the bag when he cleaned the area the previous day. New York City police officers retrieved the body and began an investigation.
On April 8, 2007, the New York City medical examiner performed an autopsy of the body. The medical examiner testified the body was found in a large, expandable black bag that had the brand name "G&S" on it. The body was fully clothed, and wrapped in a "white bed sheet" and black plastic. The medical examiner found two rings and a bracelet on the body.
The medical examiner observed multiple blunt-impact injuries on the body, including abrasions and contusions of the neck, torso, and extremities. The medical examiner opined that the cause of death was homicide caused by "compression of the neck," and that the woman had been killed on or before April 4, 2007.
The medical examiner explained that the date of death listed on the death certificate was April 7, 2007, because that was the day the body was discovered.
C.N.'s friend, C.D.K., testified that, on April 9, 2017, she recognized C.N.'s jewelry on a television report about a "[w]oman found on the Henry Hudson," and she contacted C.N.'s family. Shortly after 5:00 p.m. that same day, Bayonne Police Officer Ponik went to C.N.'s apartment to investigate a missing persons report. The officer met with J.N. and, shortly thereafter, C.N.'s brother Cody, C.N.'s parents, and C.D.K. arrived at the home with other family members. Officer Ponik remained at the apartment for approximately six hours while he collected information from the group. The officer also obtained information from other agencies and waited for a response from the Division of Youth and Family Services regarding custody of J.N.
Because C.N. and her brother have the same initials, we use a fictitious name to refer to C.N.'s brother.
While Officer Ponik was in the apartment, Cody attempted to call C.N. several times on her cell phone. At 11:00 p.m., about five minutes after Cody last attempted to call his sister, defendant called Cody. Officer Ponik asked Cody to put the call on speaker phone, and Cody agreed. Defendant initially denied knowing anything about C.N.'s whereabouts, but later admitted seeing her on April 2, 2007. Then, "out of nowhere," defendant told Cody that C.N. "went on vacation" and that he bought her a "black folding type suitcase" to use. Defendant told Cody he was staying in Rockland County, New York, while visiting a sick aunt in Long Island. Defendant refused to give Cody any information on how to reach him, and then ended the call.
Five or ten minutes later, defendant called Cody again to say he would return to Bayonne the next day. He admitted having C.N.'s cell phone, explaining that she gave it to him. When Cody asked defendant to assist the family in locating C.N., defendant became uncooperative and ended the conversation. Defendant did not return to Bayonne.
The next day, April 10, 2007, the New York City police sent a sketch of the woman found in the black bag and photographs of her clothing and jewelry to the Bayonne police, who recognized the items as belonging to C.N. Later that day, C.N.'s father went to the medical examiner's officer and identified the woman in the black bag as C.N. On April 10, the police also obtained and executed a search warrant for C.N.'s apartment. The police did not find anything of evidentiary value in the apartment.
On April 10, 2007, Bayonne detectives attempted to locate a store that sold luggage similar to the bag in which C.N.'s body was found. In a store about seven blocks from C.N.'s apartment, the police spoke to a store owner, who stated she had ordered five G&S collapsible bags and sold one of them. The detectives purchased one of the bags and took it back to headquarters.
The next day, the detectives returned to the store and interviewed the owner. She stated that, on April 4, 2007, a man entered the store and walked down an aisle. One of the sales associates spoke to the man and brought him to the cash register, where the owner was working. The owner stated she dealt with the man "face to face" and that the lighting in the store was bright. The man purchased a black, firm-sided G&S suitcase. The man told the owner that he and his wife were going to go on a cruise to the Bahamas, and he paid cash for the bag.
About an hour later, the man returned with the bag and asked for a refund, explaining that his "'wife already has one.'" The man then used cash to purchase a "metal fold-up luggage carrier[]." The man later returned a third time and picked out a black, expandable G&S suitcase. The owner stated that this bag was "totally flexible and expandable. It can move. It's not solid. It's not rigid." The man used cash to buy the bag. After the interview, the detectives took the first bag the man purchased back to headquarters.
The detectives also brought the store owner to the police station, where she was placed in an interview room. Sergeant Opel, who had not been involved in the investigation up to that point, told the store owner he was going to show her some photographs and he read her instructions concerning the photo identification that had been prepared by the Attorney General's Office. He told the owner she was not obligated to identify anyone, that the suspect's picture might not be included in the lineup, and that she could have all the time she needed to view the photographs. In response to defendant's questions on cross-examination at a Wade hearing, Sergeant Opel stated he did not "record this procedure on any electronic device" and he did not ask the store owner to sign the instructions after he read them to her. Defendant did not ask the sergeant whether he or any other officer prepared a written report concerning the identification procedure.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
--------
One-by-one, Sergeant Opel showed six photographs to the store owner and asked her if she could identify the person who purchased the suitcases. The store owner identified a photograph of defendant as the man who purchased the bags, and she also identified him at trial.
The State presented the testimony of a DNA expert, who opined that C.N.'s DNA was found on the top inner rim of the first bag defendant purchased from, and then returned to, the Bayonne store. The expert did not test the inside of the bag in which C.N.'s body was found, and did not find C.N.'s DNA on the outside of that bag.
Approximately eighteen months later, on October 14, 2008, a golfer contacted the New York City police to report that he had recognized a caddy working at a country club in Whitemarsh Township, Pennsylvania as someone wanted by the police for questioning in a New York homicide. The golfer had previously worked at a country club in Bayonne. The New York City police sent a flyer containing defendant's name and photograph to Detective Cubbin of the Whitemarsh Township police department.
Detective Cubbin e-mailed the flyer to a manager at the country club, who told him the photograph resembled one of the caddies, but that the caddy's name was Keith Davis, not Shawn Southerland. Detective Cubbin went to the country club and spoke to the person identified as Keith Davis. The man denied having any identification, but the detective observed a wallet in the man's back pocket. The man told him the wallet was empty. Detective Cubbin asked the man to take the wallet out and show him "it's empty." When the man did so, the detective saw "a Texas ID . . . [a]nd it says Shawn Southerland on it." Detective Cubbin stated, "[a]t that point, Southerland says to me, 'I knew this day was coming.'" Defendant also told the detective, "'I left New York and this is my new identity.'"
Defendant called several witnesses who had previously testified on behalf of the State. He did not testify on his own behalf.
At the conclusion of the trial, Judge Schultz rendered a thorough oral opinion in which he found, beyond a reasonable doubt, that defendant purposely caused C.N.'s death and that he concealed evidence of the crime by placing her body in the black bag, "and depositing it in a place remote from the scene of the crime" with the purpose "to hinder his apprehension, prosecution and conviction for the homicide of" C.N.
II.
In Point I, defendant argues that his appointed standby counsel was "unconstitutionally ineffective." Defendant asserts the standby counsel failed to communicate with him, and was unable to agree with him "on the proper strategy as to the defense of the State's allegations." Defendant also argues the standby counsel expressed "a readily apparent and open hostility" toward him.
We decline to consider defendant's argument. "Contentions of ineffective assistance of counsel are more effectively addressed through petitions for post-conviction relief, at which point an appropriate record may be developed." State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.) (citing State v. Preciose, 129 N.J. 451, 460 (1992)), certif. denied, 197 N.J. 258 (2008). Thus, defendant's claim of ineffective assistance of counsel may abide a properly filed petition for post-conviction relief (PCR).
III.
In Point II, defendant argues that the police failed to comply with the "condition to the admissibility of out-of-court identifications, that the police record, to the extent feasible, the dialogue between witnesses and police during an identification procedure." State v. Delgado, 188 N.J. 48, 51 (2006). He bases his argument on part of his cross-examination of Sergeant Opel at the Wade hearing, where he asked the sergeant whether he recorded his interview with the luggage store owner "on any electronic device," and whether he asked the owner to sign the identification instructions he read to her. Sergeant Opel stated he did not electronically record the interview and did not ask the owner to sign the instructions. Although defendant did not ask the sergeant if he prepared a report setting forth the details of the interview, he now asserts that "the State's failure to record necessary details of the photographic identification procedure was contrary to State v. Delgado" and that his motion to suppress the identification should have been granted. We disagree.
In Delgado, the Court addressed whether law enforcement officers had a duty "to record the details of out-of-court identification procedures that result in positive identifications and non-identifications as well as near misses and hits." Id. at 58. Recognizing that misidentification was "the single greatest cause of wrongful convictions in this country," id. at 60, the Court invoked its supervisory powers under Article VI, Section 2, Paragraph 3 of the New Jersey Constitution to require a written record as a condition to the admissibility of out-of-court identifications. Id. at 63. It, therefore, directed law enforcement officers to make "a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." Ibid. The Court explained that a detailed summary of the identification should be prepared whenever feasible and that electronic recordation was advisable, but not mandated. Ibid.
The Court "refer[red] to the Criminal Practice Committee the preparation of a rule for our consideration that incorporates the recording requirements for out-of-court identifications." Id. at 64. On September 4, 2012, the Supreme Court adopted Rule 3:11, entitled "Record of an Out-of-Court Identification Procedure." In pertinent part, the Rule states that "[a]n out-of-court identification resulting from a photo array . . . conducted by a law enforcement officer shall not be admissible unless a record of the identification procedure is made." R. 3:11(a). "If the record that is prepared is lacking in important details as to what occurred at the out-of-court identification procedure," the Rule provides that "the court may . . . declare the identification admissible, redact portions of the identification testimony," or "fashion an appropriate jury charge to be used in evaluating the reliability of the identification." R. 3:11(d).
Defendant's only complaint about the identification procedure at the Wade hearing was that Sergeant Opel did not electronically record his interview with the store owner, or require her to sign the identification instructions after he read them to her. However, under Delgado, supra, the police were not required to electronically record the interview or have the witness sign the identification instructions. Thus, we discern no violation of Delgado under the facts of this case.
For the first time on appeal, defendant contends the State failed to provide a written report detailing the out-of-court identification procedure and, therefore, his conviction must now be reversed and the matter remanded for a new trial. Again, we disagree.
Although under the plain error rule we will consider allegations of error not brought to the trial court's attention that have a clear capacity to produce an unjust result, see Rule 2:10-2; State v. Macon, 57 N.J. 325, 337-39 (1971), we generally decline to consider issues that were not presented at trial. Nieder v. Royal Indem. Ins. Co. 62 N.J. 229, 234 (1973). As the Supreme Court has cogently explained:
Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves. Although "[o]ur rules do not perpetuate mere ritual[,]" we have insisted that in opposing the admission of evidence, a litigant "must make known his position to the end that the trial court may consciously rule upon it." State v. Abbott, 36 N.J. 63, 76 (1961). This is so because "[t]he important fact is that the trial court was alerted to the basic problem[.]" Id. at 68. In short, the points of divergence developed in the
proceedings before a trial court define the metes and bounds of appellate review.
[State v. Robinson, 200 N.J. 1, 19 (2009).]
As noted, defendant's present contention that the State failed to produce a written record of the identification procedure was not a basis for his motion to suppress. Therefore, we need not review it under the circumstances of this case.
However, even if we consider defendant's contention, we conclude it lacks merit. After defendant argued that the sergeant did not electronically record the interview, the prosecutor referred to a written statement by the store owner, which detailed that "a photo identification lineup was administered to [her] by Sergeant . . . Opel who acted as a blind administrator." The statement indicated that the owner "pointed out and positively identified the individual in photograph number 4." According to the statement, the owner told Sergeant Opel that the man in the photograph was "the same gentleman only he did not have facial hair when he was in the store."
Thus, contrary to defendant's contention, the State did prepare a written statement addressing the Delgado requirements. Defendant knew where the identification procedure was conducted and the statement clearly records the witness's response upon identifying defendant as the person in photograph number four of the array. In addition, the instructions Sergeant Opel read the store owner were provided to defendant and, therefore, he was aware what the sergeant told the witness during the interview. The State also gave defendant all six of the photographs comprising the array. Thus, the record reflects that the Delgado requirements were met and there was no basis for suppressing or limiting the store owner's identification of defendant. Therefore, we reject defendant's contention on this point.
IV.
In Points III, IV, and V, defendant argues the judge erred by granting the State's motion to admit the statements he made to Cody during their telephone conversation into evidence. Defendant asserts that Officer Ponik violated the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 9A:156-1 to -34 (the Wiretap Act), by listening to the telephone call, and that the officer's lengthy presence in C.N.'s apartment constituted an unlawful search. Defendant contends the prosecutor's subsequent use of the statements "tainted" the grand jury proceedings and the trial and, therefore, he should be granted a new trial. We disagree.
We review a trial court's evidentiary determinations for an abuse of discretion. State v. Buda, 195 N.J. 278, 294 (2008). Under this standard, an appellate court affords "considerable deference to a trial court's findings based on the testimony of witnesses." State v. Buckley, 216 N.J. 249, 260 (2013). An appellate court, however, owes no special deference to a trial court's interpretation of the law. Id. at 260-261.
Officer Ponik went to C.N.'s apartment at the request of her family, who wished to file a missing persons report. The officer spent the next six hours interviewing the family members, obtaining information from other agencies, and attempting to determine who would take custody of J.N. in his mother's absence. During the evening, C.N.'s brother Cody repeatedly attempted to call C.N. on her cell phone. About five minutes after Cody's last call, defendant called him at the apartment and Officer Ponik asked that Cody put the call on the speaker phone. Cody agreed to do so and the officer listened to that call, as well as the second call defendant made to Cody a few minutes later.
In relevant part, N.J.S.A. 2A:156A-3(a) provides that any person who "[p]urposely intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication" is guilty of a crime of the third degree. The Wiretap Act defines "intercept" as "the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device." N.J.S.A. 2A:156A-2(c). An "electronic, mechanical or other device" means
any device . . . that can be used to intercept a wire, electronic or oral communication other than . . . [a]ny telephone . . . instrument . . . furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business.Thus, an "aggrieved person . . . may move to suppress the contents of an intercepted wire, electronic or oral communication . . . on the grounds that . . . the communication was unlawfully intercepted." N.J.S.A. 2A:156A-21(a).
[N.J.S.A. 2A:156A-2(d)(1).]
The Wiretap Act, however, provides an exception for telephone conversations intercepted with the consent of either party to the conversation. D'Onofrio v. D'Onofrio, 344 N.J. Super. 147, 154 (App. Div. 2001); State v. Lane, 279 N.J. Super. 209, 218 (App. Div.), certif. denied, 141 N.J. 94 (1995). Under the "consent exception" provision, it is not unlawful for:
A person not acting under color of law to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such
communication is intercepted or used for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act.
[N.J.S.A. 2A:156A-4(d).]
The Wiretap Act protects the privacy interests of individuals in their telephone conversations. State v. Worthy, 141 N.J. 368, 379 (1995); Lane, supra, 279 N.J. Super. at 219. To safeguard an individual's right to privacy, the Wiretap Act must be strictly construed. State v. Ates, 217 N.J. 253, 268 (2014); Worthy, supra, 141 N.J. at 379-80; State v. Catania, 85 N.J. 418, 437 (1981). The remedy for an illegal interception is the suppression of evidence. Worthy, supra, 141 N.J. at 387.
Applying these standards, it is clear that Officer Ponik did not violate the Wiretap Act by listening to the two calls. The officer did not "intercept" the calls with an "electronic, mechanical or other device." He simply listened to the speaker phone as Cody spoke with defendant. Moreover, Cody gave his consent to Officer Ponik to listen to his telephone conversations with defendant. Thus, we reject defendant's contention that this evidence should have been suppressed under the Wiretap Act.
Defendant's argument that Officer Ponik conducted an illegal search of C.N.'s apartment also lacks merit. Indeed, no search occurred during the evening of April 9, 2007. Officer Ponik went to C.N.'s apartment to meet with J.N., who lived there, and his family to gather information about C.N.'s disappearance, and to make arrangements for J.N.'s care. By that time, defendant had left the apartment with "all his stuff" and he never returned. Thus, Officer Ponik's presence in the apartment that evening did not violate defendant's constitutional right to privacy. Therefore, the judge properly admitted the statements into evidence and the prosecutor properly referred to them before the grand jury and at trial.
V.
Defendant next argues, in Point V, that the judge erred in denying his motions to dismiss the indictment and for a judgment of acquittal on the ground that New Jersey lacked "territorial jurisdiction" to consider the matter because there was allegedly no evidence that the murder occurred in this State. We disagree.
It is well established that "[t]he State can only prosecute crimes that occur within its territorial borders." Ates, supra, 217 N.J. at 268 (citing State v. Denofa, 187 N.J. 24, 36 (2006)); see also N.J.S.A. 2C:1-3(a)(1) ("[A] person may be convicted under the laws of this State of an offense committed by his own conduct . . . if . . . [e]ither the conduct which is an element of the offense or the result which is such an element occurs within this State."). Territorial jurisdiction is an element of every criminal offense. Id. at 38; N.J.S.A. 2C:1-14(h). "As such, when in dispute, territorial jurisdiction, like every other element, must be 'proved beyond a reasonable doubt.'" Denofa, supra, 187 N.J. at 38 (quoting N.J.S.A. 2C:1-13(a)).
Applying this standard, we agree with the trial judge that there was strong circumstantial evidence proving beyond a reasonable doubt that the murder occurred in New Jersey. Defendant lived with C.N. and J.N. in C.N.'s apartment in Bayonne. On the morning of April 4, 2007, defendant prevented J.N. from entering his mother's room to say goodbye as he was leaving for school. The medical examiner testified the murder occurred on or before April 4.
Later that day, defendant went to the Bayonne store three times to purchase bags and a bag carrier. C.N.'s DNA was found inside the non-expandable bag defendant purchased from, and then returned to, the Bayonne store. C.N.'s body was found in the expandable bag defendant purchased at the Bayonne store. The medical examiner testified C.N.'s body was wrapped in a white sheet, and J.N. stated that a white blanket was missing from his mother's room after defendant left. Thus, there was ample evidence in the record to support the judge's conclusion that the murder occurred in C.N.'s apartment sometime between the late evening of April 3, and the time J.N. woke up on the morning of April 4, 2007.
Defendant argues that, because the police found nothing of evidentiary value during the search of C.N.'s apartment, this proved the murder was not committed there. However, J.N. testified that defendant removed "all his stuff" when he abruptly left the home on April 4, and that his mother's "accessories" were also missing. Thus, there was evidence in the record that explained the lack of physical evidence in the apartment.
Defendant also argues that C.N.'s death certificate listed her date of death as April 7, rather than April 4, 2007. However, the medical examiner explained that the date on the death certificate represented the date the police found C.N.'s body on the side of the road, rather than the date of her murder. Therefore, we reject defendant's contention that the State lacked jurisdiction to prosecute him in this case.
VI.
In Point VI, defendant contends for the first time on appeal that the judge erred in failing to recuse himself sua sponte from presiding at the trial. Defendant asserts the judge's knowledge of disputed evidentiary issues, the nature of the parties' plea discussions, and defendant's prior conviction prejudiced his right to a fair trial.
This argument is clearly without merit. R. 2:11-3(e)(2). Suffice it to say that, prior to granting defendant's motion to waive his right to a jury trial, Judge Schultz carefully questioned defendant about his decision to proceed with a bench trial, and cautioned him about the risks. The judge advised defendant that he had a constitutional right to a jury trial, that most defendants preferred juries over judges, and that most judges, including himself, tried to dissuade defendants from seeking bench trials. Judge Schultz explained that, in a jury trial, the State had to convince twelve people beyond a reasonable doubt, whereas in a bench trial, the State only had to convince one. He further explained that jurors talked and deliberated with each other, while in a bench trial the court would reach a decision alone.
Judge Schultz advised defendant that if he chose to testify, the judge would know whether he had any convictions involving acts of violence, even though he would sanitize the convictions if defendant opted for a jury trial. Even if defendant did not testify, the judge said he would be aware of defendant's prior convictions. However, the judge stated he would not be prejudiced by this information, because "I understand the law and I would apply it."
The judge also cautioned defendant that he might hear other things about him that a jury might not hear, such as information about plea discussions. Defendant said he understood what the court meant, and agreed to take some time to think about it.
However, defendant later renewed his request to waive his right to a jury trial. He explained that he preferred a judge to decide his case and that he had reviewed his decision with his standby counsel. Under these circumstances, the judge found that defendant voluntarily waived his right to a jury trial.
On appeal, defendant does not identify a single instance of actual bias or prejudice arising from Judge Schultz's involvement in presiding over this case. Instead, the record firmly demonstrates that defendant made a fully informed decision to proceed with a bench trial before Judge Schultz. We therefore discern no error, much less plain error, in the judge continuing to handle this matter after he granted defendant's motion to waive his right to a jury trial.
VII.
Finally, in Point VII, defendant argues that the cumulative prejudice of the errors he raises deprived him of a fair trial. Having rejected defendant's argument that any error occurred during his trial, we also reject his cumulative error argument.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION