STATE OF NEW JERSEY v. LEE DAWN TROUTWEIN THOMAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEE DAWN TROUTWEIN THOMAS,

Defendant-Appellant.

September 13, 2013

Submitted August 26, 2013 Decided

 
Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1598.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Lee Dawn Troutwein Thomas appeals from the December 20, 2011 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

The circumstances which result in this appeal can be briefly summarized. After the denial of his pre-trial motions to suppress physical evidence and wiretapped conversations, defendant entered a guilty plea to first-degree armed robbery, N.J.S.A. 2C:15-1. Pursuant to the plea agreement, defendant was sentenced to twelve years imprisonment subject to eighty-five percent parole ineligibility as mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, we affirmed the judgment of conviction. State v. Thomas, No. A-0761-08 (App. Div. May 14), cert. denied, 203 N.J. 438 (2010).

During the suppression hearing, the arresting officers testified that, when first observed, defendant was a passenger in a tan pickup truck bearing a temporary Florida license plate. The open rear cargo area was overflowing with boxes and clothing. Neither defendant nor the driver, Ricky Conaway, was wearing a seatbelt, and the driver was using a cell phone. Once the truck was pulled over for these motor vehicle offenses, the driver could not produce a license or insurance card. As the driver and defendant searched through the vehicle, the officers noticed that the clothing was new, still in its original plastic bags or boxes. Because an armed robbery at a nearby retail clothing store had just been reported, the men were taken into custody. Defendant had been observed placing a box curbside as he exited the pickup truck when it was first stopped; the box was later found to contain a handgun.

Sometime after the men had been in custody, Conaway informed prison staff that defendant was attempting to hire someone to kill the robbery victim or to take other measures to prevent him from testifying. The prison authorities, in turn, notified the Monmouth County Prosecutor's Office. Conaway reported that defendant was attempting to make these arrangements via phone calls from the jail.

As we previously stated with regard to the phone calls:

Detective Jeffrey Wilbert of the Monmouth County Prosecutor's Office issued a subpoena duces tecum to Global Tel Link, a private contractor that recorded all out-going calls from the jail. The subpoena provided that the jail calls be forwarded in "real-time" to the detective's cell phone while they were being monitored by jail personnel. It also directed the production of recordings of defendant's past conversations. Based upon information derived from these intercepted conversations, additional charges were lodged against defendant for witness tampering, attempted murder, and conspiracy to commit murder.

Pursuant to jail protocol, inmates are routinely advised that their phone calls could be monitored, and this information is included in the inmate handbook. Further, a recording at the beginning of each call informs the caller that the call may be monitored.

[State v. Thomas, supra, No. A-0761-08 at 8.]

In denying defendant PCR relief, Judge DeStefano noted that defendant's trial attorney initially filed an "omnibus pretrial motion," seeking: the dismissal of the indictment, severance of his case from that of Conaway, severance of counts of the indictment, suppression of all statements and physical evidence obtained during the motor vehicle stop, to compel the State to produce a curriculum vitae (CV) of the individual who took the impression of a fingerprint found at the robbery site, and to compel the State to produce any statements given by witnesses who were interviewed in Florida.

The pretrial motion was denied in part and granted in part. The trial judge ruled that the detective who listened in on defendant's phone conversations from the jail was barred from testifying about them. The recordings, however, could be admitted. The judge also ordered the State to turn over all reports regarding the comparison of defendant's fingerprints to the print found at the scene, the CV of the person who performed the comparison, and formal statements given by witnesses interviewed in Florida.

Thereafter, defendant's trial counsel filed several more pretrial motions, all of which were denied, including a request that the court reconsider its decision denying suppression of the recorded phone calls. A few days after the denial, on April 22, 2008, defendant entered his guilty plea. He was sentenced on June 12, 2008.

Judge DeStefano found defendant's argument that trial counsel was ineffective because he did not accurately or completely advise him with regard to the fingerprint evidence, to be lacking in merit. Although the State did not provide information regarding the individual who initially connected defendant's prints from the print taken from duct tape used during the robbery, the State did not intend to call him as a witness. Rather, the State provided defendant with a one-page report comparing the print from the scene to defendant's prints by Detective Shannon Cavanaugh of the Monmouth County Prosecutor's Office Forensic and Technical Service Unit, and Detective Albert De Angelis, a supervisor, whom the State did plan to call. At the April 22, 2008 hearing, defendant was shown the fingerprint lifted from the scene that matched his print. The one-page report written by Cavanaugh, was signed by De Angelis, who certified that he also "compared and verified" the positive identification.

While acknowledging that defendant had been supplied this information, PCR counsel nonetheless contended that the summary was not the equivalent of an expert report, and that trial counsel was ineffective by not demanding that the State produce more. Judge DeStefano rejected that argument because defendant did not explain, factually or legally, the reason the report did not comply with the State's discovery obligation, or the reason defendant was prejudiced by not being given more. The court also specifically discounted defendant's argument that proper investigation would have revealed that De Angelis was unqualified to testify since the claim was not supported in any fashion.

With regard to defendant's contention that his trial counsel was ineffective because he did not condition his guilty plea upon the right to appeal the court's decision denying suppression of the recorded phone conversations, Judge DeStefano concluded that, even if counsel should have negotiated a conditional plea, the failure to do so had no effect on the outcome. See R. 3:9-3(f). Although New Jersey's Wiretapping and Electronic Surveillance Act generally precludes the type of recordings made in this case, N.J.S.A. 2A:156A-2(d)(1) exempts telephone equipment used by law enforcement officers in the ordinary course of their duty, regardless of whether the monitoring is done randomly or by an officer who performs that function on a regular basis. See State v. Fornino, 223 N.J. Super. 531, 545, certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 943, 109 S. Ct. 152, 102 L. Ed. 123 (1988). The statutory exception permits prison officials to monitor and record inmate phone calls without a warrant if for "purpose of prison security." Global Tel Link provided inmate phone services and equipment enabling the monitoring and recording of outgoing inmate phone calls. Investigators had the right to access these recordings once informed of defendant's plot to murder the robbery victim. Because the judge concluded that the Wiretap Act allowed prison officials to forward the recorded phone calls to investigating officers, and that, in any event, defendant essentially consented to the wiretapping of his calls by virtue of being on notice that they were not private, any appeal pursuant to a conditional plea would have been denied. See N.J.S.A. 2A:156A-4(d); D'Onofrio v. D'Onofrio, 344 N.J. Super. 147, 154 (App. Div. 2001); State v. Fornino, supra, 223 N.J. Super. at 545. Since no prejudice was demonstrated from the failure to negotiate a conditional plea, the second prong of the Strickland1 test was not met, and thus defendant was not entitled to relief on this basis.

Judge DeStefano also discounted defendant's ineffective assistance claims with regard to letters he wrote that were voluntarily turned over by two witnesses, Tracy Patten and Jasmine Cowans, because failure to file suppression motions that had no merit is not ineffective assistance of counsel. Employing the same rationale, he concluded that trial counsel's failure to seek suppression of defendant's letter to his sister, Hope Thomas, taken from his outgoing mail in the jail, was not improper representation. The judge relied on N.J.A.C. 10A:31-19.6, which states: "[i]nmates shall be permitted to seal outgoing correspondence and such correspondence shall not be opened, inspected or censored unless there is evidence to suspect that there is contraband or disapproved content enclosed or that a criminal activity is involved." Judge DeStefano concluded that defendant did not establish a prima facie case and therefore denied the request for an evidentiary hearing.

On appeal, defendant raises the following points:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

(A) COUNSEL ERRONEOUSLY ADVISED DEFENDANT THAT THE STATE HAD PROVIDED AN EXPERT FINGERPRINT ANALYSIS REPORT AND THAT EVIDENCE REGARDING THE FINGERPRINT MATCH WOULD BE ADMISSIBLE. DEFENDANT ENTERED HIS GUILTY PLEA BASED UPON THIS ERRONEOUS ADVICE.

(B) COUNSEL FAILED TO CONDITION DEFENDANT'S PLEA UPON HIS RIGHT TO APPEAL THE DENIAL OF THE SUPPRESSION MOTION.

(C) COUNSEL FAILED TO RAISE THE ISSUE THAT THE STATE UNLAWFULLY SEIZED DEFENDANT'S LETTER FROM HIS OUTGOING MAIL.

(D) COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON THE DIRECT APPEAL.

POINT III

THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.

POINT IV

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT V

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

POINT VI

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT VII

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

In his pro se submission, defendant sets forth the following alleged errors:

POINT 1

INVESTIGATOR LESTER OSBORNE'S ACTIONS OF REQUESTING GLOBAL-TEL-LINK TO MAKE DISCLOSURE OF THE DEFENDANT'S STORED COMMUNICATIONS FROM THE GLOBAL-TEL-LINK COMPUTER SYSTEM, SO AS TO CONFIRM THE MURDER-FOR-HIRE ALLEGATIONS FOR DET. WILBERT OF THE PROSECUTOR'S OFFICE, CAN NOT BE VIEWED AS THOUGH INVESTIGATOR LESTER OSBORNE WAS USING THAT EQUIPMENT IN THE ORDINARY COURSE OF HIS DUTIES AS A JAIL OFFICIAL. THUS, A WARRANT WAS REQUIRED TO OBTAIN THE DEFENDANT'S STORED COMMUNICATIONS FROM GLOBAL-TEL-LINK.

POINT 2

THE CONSENT EXCEPTION DOES NOT APPLY TO THE PROSECUTION, NOR CAN IT BE USED BY THE PROSECUTION (THROUGH THE ACTIONS OF THE SHERIFF'S OFFICE) TO INTERCEPT THE DEFENDANT'S STORED COMMUNICATIONS FROM GLOBAL-TEL-LINK.

POINT 3

THE DEFENDANT'S CONVICTION WOULD HAVE BEEN OVERTURNED HAD THE APPELLATE DIVISION REVIEWED THE MOTION COURT'S OPINION, WHICH HELD THAT THE DEFENDANT HAD NO "REASONABLE" EXPECTATION OF PRIVACY IN HIS SEALED OUTGOING LETTER.

A. THE DEFENDANT HAD A "REASONABLE" EXPECTATION OF PRIVACY IN HIS SEALED OUTGOING LETTER.

B. A WARRANT WAS REQUIRED TO OPEN AND INSPECT THE DEFENDANT'S SEALED OUTGOING LETTER.

C. THE WARRANTLESS INSPECTION CANNOT BE JUSTIFIED UNDER N.J.A.C. 10A:31-19.6(b), WHEN THERE WAS NO EVIDENCE PRESENTED TO THE COURT INDICATING THAT THIS PROVISION WAS ADOPTED AND PRACTICED BY THE MONMOUTH COUNTY SHERIFF'S OFFICE, AS OPPOSED TO N.J.A.C. 10A:18-2.7(d).

POINT 4

THE MONMOUTH COUNTY FORENSIC AND TECHNICAL SERVICE REPORT WOULD NOT HAVE BEEN ADMISSIBLE AS AN EXPERT REPORT, BASED ON THE FACT THAT (1) THE REPORT OFFERED NOTHING MORE THAN A "NET OPINION," AND (2) THE REPORT CONTAINED INFORMATION INDICATING THAT THE PRINT WAS RAN THROUGH THE A.F.I.S. DATABASE, WHICH WOULD'VE SUBJECTED THE DEFENDANT TO "HEARSAY TESTIMONY" AND "OTHER CRIMES EVIDENCE."

A. THE MONMOUTH COUNTY FORENSIC AND TECHNICAL SERVICE REPORT WOULD NOT HAVE BEEN ADMISSIBLE BASED ON THE FACT THAT IT CONTAINED INFORMATION INDICATING THAT THE PRINT WAS RAN THROUGH THE A.F.I.S. DATABASE.

POINT 5

THE DEFENDANT'S ARGUMENT THAT RAYMOND SANTIAGO FAILED TO PUT FORTH VIABLE SUPPRESSION ARGUMENTS, AS WELL AS HIS FAILURE TO ESTABLISH THE FACTS ON THE RECORD AS THEY ARE INDICATED AS OCCURRING IN OFFICER OPPEGAARD'S POLICE REPORT, IS NOT AN ATTEMPT TO RELITIGATE THE ISSUE CONCERNING THE TRAFFIC STOP. THUS, THE ISSUE SHOULD HAVE BEEN ENTERTAINED BY THE P.C.R. COURT, SO THAT IT COULD BE DETERMINED WHETHER RAYMOND SANTIAGO'S ACTIONS RESULTED IN AN ACTUAL DISADVANTAGE TO THE DEFENDANT, AND WHETHER THE DEFENDANT WAS PREJUDICED THEREBY.

We affirm, essentially for the reasons set forth by Judge DeStefano in his thoughtful and thorough twenty-eight-page written decision, adding the following brief comments.

The State met its discovery obligation by providing to defendant all of the material in its possession with regard to fingerprint evidence. Defendant and his attorney were actually shown the original fingerprint evidence, as well as given a copy of the State's only expert report. Nothing further was required.

Nor was defendant prejudiced by counsel's failure to negotiate a conditional plea. For the reasons set forth by Judge DeStefano, such a motion would not have been granted in any event, and, therefore, the failure to obtain that purported benefit was neither ineffective assistance nor prejudicial to the outcome.

Defendant misconstrues the import of N.J.A.C. 10A:31-19.6. It does not require the issuance of a subpoena before inmate mail is opened when it is suspected that the communication contains evidence regarding criminal activity. This was not mail being sent to a government official or agency. See In re Rules Adoption Regarding Inmate Mail to Attorneys, Pub. Officials, and News Media Representatives, 120 N.J. 137, 150-51, 153 (1990).

As Judge DeStefano pointed out, defendant's argument that trial counsel was ineffective because he failed to adequately investigate was not supported by any certification or affidavit identifying the circumstances that would have aided his defense. In the absence of even a suggestion of actual benefit defendant would have gained as a result, this claim lacks merit sufficient to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Since we do not consider trial counsel's failure to seek the suppression of defendant's letter to Thomas to have any prospect of success, we do not perceive appellate counsel's failure to raise the issue of the purportedly unlawful seizure as ineffective assistance. The State's seizure of the letter was not unconstitutional; therefore, the failure to litigate the question was not ineffective assistance of counsel.

Defendant's remaining arguments, counseled or uncounseled, do not warrant further discussion in a written opinion. They are either cumulative, not supported by the record, or were addressed on defendant's prior direct appeal. See R. 3:22-5.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).