STATE OF NEW JERSEY VS. LYNDA STAMBAUGH-LUPO(13-04-0169, SOMERSET COUNTY AND STATEWIDE) ( 2017 )


Menu:
  •                         NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court."
    Although it is posted on the internet, this opinion is binding only on the
    parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0076-16T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    LYNDA STAMBAUGH-LUPO,
    Defendant-Appellant.
    _______________________________________________
    Argued September 18, 2017 – Decided October 26, 2017
    Before Judges Messano and Accurso.
    On appeal from the Superior Court of New
    Jersey,   Law  Division,   Somerset County,
    Indictment No. 13-04-0169.
    Michael Confusione argued the cause for
    appellant (Hegge & Confusione, LLC, attorneys;
    Mr. Confusione, of counsel and on the briefs).
    Paul H. Heinzel, Assistant Prosecutor, argued
    the   cause   for  respondent   (Michael   H.
    Robertson,   Somerset    County   Prosecutor,
    attorney; Mr. Heinzel, of counsel and on the
    brief).
    PER CURIAM
    A jury convicted defendant Linda Stambaugh Lupo of third-
    degree theft, N.J.S.A. 2C:20-3(a).                Defendant moved for a new
    trial   based   on    "newly    discovered   evidence,"   claiming   police
    intentionally accessed email stored on her family's cellphones and
    other electronic devices during trial, including emails between
    her and her attorney, in violation of the Sixth Amendment.              The
    judge denied the motion after conducting an evidentiary hearing,
    and sentenced defendant to a suspended 364-day term in the county
    jail,   a   four-year    term    of   probation,   $500   restitution   and
    appropriate financial penalties.
    On appeal, defendant presents the following points for our
    consideration.
    POINT 1
    THE TRIAL COURT ERRED IN ADMITTING INTO
    EVIDENCE BEFORE THE JURY THE ALLEGED STOLEN
    ITEMS BECAUSE OF A GLARING LACK OF CHAIN OF
    CUSTODY, WARRANTING REVERSAL AND REMAND FOR A
    NEW TRIAL ON THE THEFT CHARGE.
    POINT 2
    THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
    MOTION FOR, AT LEAST, A NEW TRIAL, IN LIGHT
    OF DETECTIVE TAYLOR'S ARREST OF DEFENDANT IN
    THE MIDDLE OF TRIAL – THE NIGHT BEFORE SHE WAS
    TO TESTIFY, AND ON [THE] GROUND THAT THE
    PROSECUTION      INVADED       ATTORNEY-CLIENT
    PRIVILEGED   EMAILS   AND   OTHER   ELECTRONIC
    COMMUNICATIONS BETWEEN DEFENDANT AND HER TRIAL
    COUNSEL.
    Having considered these arguments in light of the record and
    applicable legal standards, we affirm.
    2
    I.
    From 2009 to 2012, defendant provided in-home medical therapy
    to the victim, whose husband was a retired major league baseball
    player.   These treatments were performed several days per week for
    several hours at a time in the basement of the victim's home,
    during which defendant would sometimes be left alone while the
    victim went upstairs to her bedroom to shower.    When her husband
    became ill, the victim suspended the treatments to help care for
    him, but, by January 2013, her family contacted defendant to resume
    the treatments.   The victim's husband passed away on January 29,
    2013, and defendant began treating the victim again two days later.
    The victim, however, noticed some unusual circumstances.   For
    example, defendant suggested the therapy take place in the victim's
    bedroom, which had never occurred before.        While the victim
    showered in the bedroom's bath, she could hear the alarm signal
    several times that the front door opened; yet, no one was in the
    house except defendant.    On another occasion, the victim emerged
    from the shower to find defendant standing on the side of the bed
    opposite where the therapy was taking place.
    The victim intended to inter her husband with some jewelry
    of special significance.     On February 4, she and other family
    members searched in vain for the jewelry box where her husband
    3
    kept these pieces.       Unable to find it, the victim called the
    police.
    Police arrived at the victim's home on February 5 and spoke
    to her regarding what items were missing and who had access to her
    bedroom.    Defendant was also there and agreed to accompany police
    to the station, where she provided a taped statement that was
    played for the jury.     Although defendant originally denied taking
    anything, she ultimately admitted that the victim's jewelry was
    in a plastic supermarket bag in defendant's home.              Detectives
    pressed for details as to how much jewelry she took, but defendant
    stated, "I honestly don't know[.] I didn't look, I honestly didn't
    look[.]    I haven't had a chance to do anything . . . .       I just put
    it into the bag."
    Police secured a search warrant for defendant's home and
    found the bag as described in the "mudroom."          It contained some
    jewelry    engraved   with   the   deceased   husband's   initials   and   a
    department store receipt with the victim's name.             Police found
    more than two hundred pieces of jewelry throughout the house, some
    in Ziploc bags, and they found sports memorabilia, including a
    glove and a baseball signed by Hank Aaron, in the basement.
    Police seized approximately one hundred pieces of jewelry and
    the baseball glove and autographed ball, which the lead detective
    placed in the trunk of his car and took to police headquarters.
    4
    Without inventorying the evidence, he locked it in one of the
    interview rooms, for which he had the only key.                   Police initially
    permitted the victim and her niece to enter the interview room
    without accompaniment to look through the seized items. The victim
    later identified the items and provided details about some of the
    jewelry       to    police,    who   documented         her   identification    and
    photographed the items.
    Police permitted the victim to take the identified items and
    baseball memorabilia home and returned the unidentified items to
    defendant.         Some weeks later, the victim supplied police with a
    list of other items that she could not locate in her home.                      The
    State argued that defendant was also responsible for the theft of
    these items.
    Sometime before trial, police went to the victim's home, to
    take    the    jewelry     for   professional         appraisal    and   to   permit
    defendant's inspection of the baseball and glove.                        A few days
    later, the victim called police and told them the glove she had
    given   them       was   not   the   same       one   she   identified   at   police
    headquarters months earlier.           The State notified defendant of the
    mistake.
    At trial, the victim identified and provided details as to
    when she had last seen some of the seized items prior to February
    4, 2013.      The prosecutor posed no questions about the autographed
    5
    baseball during direct examination of the victim, however, on
    cross-examination, it became apparent that the victim had supplied
    a different baseball to police.       Although the State agreed it
    would not offer the baseball in evidence, the judge held an
    N.J.R.E. 104 hearing at defendant's request outside the presence
    of the jury.     The victim explained the reason for her mistake.
    The lead detective testified that he picked up the jewelry
    from the victim for appraisal but did not inventory the items
    before securing them in a locker at police headquarters.    He then
    left for vacation and another detective actually took the jewelry
    for appraisal.
    At the end of the State's case, defendant objected to the
    admission of the jewelry in evidence, but not the baseball glove;
    the State did not seek to admit the autographed baseball. Although
    she expressed concerns about the chain of custody, the judge
    ultimately decided to admit the evidence.      Citing in particular
    our decision in State v. Brown, 
    99 N.J. Super. 22
     (App. Div.),
    certif. denied, 
    51 N.J. 468
     (1968), the judge concluded any defects
    in the chain of custody did not affect admissibility but only the
    jury's evaluation of the weight of the evidence.
    Defendant elected not to testify, but her husband did.         He
    was home when police executed the search warrant.     He identified
    photos of a baseball autographed by Hank Aaron that he purchased
    6
    on Ebay and displayed in his home.            He also identified a photo of
    a baseball glove that he purchased for his son.                     Additionally,
    defendant's husband described an ongoing in-home business that the
    couple conducted that included the purchase of jewelry and other
    items for resale.      He claimed defendant kept some of these items
    in bags in the mudroom and around the house.
    In summation, defense counsel argued that the baseball glove
    was too small to fit a major league ballplayer and surmised it was
    defendant's son's.      He urged the male jurors to try the glove on
    and see if it felt like one "worn by a professional baseball
    player."     He also vigorously attacked the chain of custody for all
    the   evidence,   implying      that   most   of   the   items      were   not   the
    victim's, and suggesting that someone else must be responsible for
    having stolen the missing items that police never recovered.                      He
    highlighted the appraised value of the jewelry actually recovered,
    which was less than $500.
    In Point I, defendant contends the admission in evidence of
    the jewelry and baseball glove was reversible error because "there
    was not just a 'defect' in the chain of custody but a complete
    absence of foundation and no showing of uninterrupted chain of
    custody . . . as required by New Jersey law."                We disagree.
    "[A]    trial   court's    evidentiary       rulings    are    entitled    to
    deference absent a showing of an abuse of discretion, i.e., there
    7
    has been a clear error of judgment."           State v. Nantambu, 
    221 N.J. 390
    , 402 (2015) (quoting State v. Harris, 
    209 N.J. 431
    , 439
    (2012)).    "The requirement of authentication or identification as
    a condition precedent to admissibility is satisfied by evidence
    sufficient to support a finding that the matter is what its
    proponent claims."        N.J.R.E. 901.
    "The     determination     of   whether     the     State   sufficiently
    established the chain of custody is within the discretion of the
    trial court."      State v. Mosner, 
    407 N.J. Super. 40
    , 62 (App. Div.
    2009); see also Brown, supra, 
    99 N.J. Super. at 27
     ("Whether the
    requisite chain of possession has been sufficiently established
    to justify admission of the exhibit is a matter committed to the
    discretion of the trial judge, and his determination will not be
    overturned    in    the    absence   of   a   clearly     mistaken    exercise
    thereof.").     Generally speaking, the proponent of the evidence
    must show an uninterrupted chain of custody.              Mosner, 
    supra,
     
    407 N.J. Super. at 62
    .
    Nonetheless, "the State is not obligated to negate every
    possibility    of    substitution    or   change    in    condition    of   the
    evidence."     State v. Brunson, 
    132 N.J. 377
    , 393 (1993).                  The
    evidence will usually be admitted "if the court finds in reasonable
    probability that the evidence has not been changed in important
    respects or is in substantially the same condition as when the
    8
    crime was committed."       Mosner, 
    supra,
     
    407 N.J. Super. at 62
    (citations   omitted).      Defects        in   the    chain      do   not   negate
    admissibility but go instead to the weight of the evidence.                   
    Ibid.
    (citing State v. Morton, 
    155 N.J. 383
    , 446 (1998), cert. denied,
    
    532 U.S. 931
    , 
    121 S. Ct. 1380
    , 
    149 L. Ed. 2d 306
     (2001)).
    Here, defendant argues there were breaks in the chain of
    custody   when   police   left   the       victim     and   her    niece     in   the
    interrogation room alone with the jewelry, when they returned
    items to the victim's possession and when the lead detective left
    items in police headquarters without documentation and another
    detective took them for appraisal. The victim, however, identified
    photographs of the jewelry taken after she identified the pieces
    at police headquarters and before the items were returned, and she
    identified specific items shown to her at trial which were in
    those photos.
    "When an item of evidence is not fungible but is instead
    easily identifiable, no chain of custody issue is presented."
    Biunno, Weisbard & Zegas, Current N.J. Rules of Evidence, comment
    2 on N.J.R.E. 901 (2017) (citing State v. B.H., 
    290 N.J. Super. 588
    , 595 (App. Div. 1996), rev'd in part on other grounds sub
    nom., State v. Hoffman, 
    149 N.J. 564
     (1997)).                     In other words,
    defendant never claimed the nature or character of the evidence
    was altered between when it was seized and when it was introduced
    9
    at trial.     Mosner, 
    supra,
     
    407 N.J. Super. at 62
    .              Rather, she
    claimed the actual items of jewelry were either never stolen from
    the victim or never recovered in defendant's home.               Simply put,
    the argument made at trial had little to do with admissibility of
    the jewelry and everything to do, as the trial judge noted, with
    the persuasive weight of the State's evidence. We find no mistaken
    exercise of the judge's discretion.1
    II.
    As noted, after the verdict defendant moved for a new trial.
    We provide some additional background.
    When defendant was arrested and released on bail, the judge
    imposed a condition forbidding any contact with the victim. During
    trial, the victim's daughter reported to police that she observed
    defendant drive by the home and use her cellphone apparently to
    take photographs.       The trial judge issued an arrest warrant
    charging    defendant   with    contempt,     N.J.S.A.    2C:29-9(a),   and   a
    different judge approved the State's application for a search
    warrant to "seize from [defendant's] residence . . . any and all
    cameras,    cell   phones,     thumb   drives    and     recording   devices."
    1
    Defendant did not object to the admission of the baseball glove
    into evidence and, as noted, defense counsel used the glove as an
    exhibit in urging her acquittal.    Its admission was not error,
    much less plain error.    See R. 2:10-2 ("Any error or omission
    shall be disregarded by the appellate court unless it is of such
    a nature as to have been clearly capable of producing an unjust
    result[.]").
    10
    Defendant was arrested the night before the last day of testimony
    at trial. Police seized various cell phones and electronic devices
    from her home.
    The trial judge arraigned defendant on the contempt charge
    the next day.    After defendant's husband testified but before the
    defense rested, the judge conducted a thorough voir dire regarding
    defendant's election not to testify. Among other things, defendant
    stated she had discussed her options with counsel, was voluntarily
    deciding not to testify and was not under the influence of any
    drugs or alcohol.
    Several weeks after the jury returned its verdict, defendant
    moved for a new trial.    Defendant's husband certified he obtained
    information that e-mail communications on his and defendant's
    electronic devices, which included attorney-client communications,
    "had been invaded" by an outside IP address while the devices were
    in police custody. The judge permitted the State's and defendant's
    experts to access metadata from the devices and subsequently held
    an evidentiary hearing on the issue.    Both experts testified.
    After reviewing the party's submissions and testimony, the
    judge denied defendant's motion and issued an order and written
    decision on March 9, 2016.     She found the State's expert to be
    more    credible,   specifically   rejecting   defendant's   expert's
    assertion that members of the police force regularly and routinely
    11
    accessed defendant's "phone at distinct intervals every 14 to 15
    minutes 24/7."
    In   Point   II,   defendant   argues     her    arrest   during   trial
    infringed upon her right to testify, and she presented newly-
    discovered evidence that the State accessed privileged attorney-
    client communications in violation of her Sixth Amendment rights,
    requiring a new trial.    We find little merit to either contention.
    Defense counsel filed a certification in support of the motion
    for a new trial stating that defendant was highly agitated in
    court the day after her arrest.           The record belies this, both by
    the absence of any contemporaneous statements made by defense
    counsel indicating defendant's distress and by defendant's own
    statements to the judge during the voir dire.                  The argument
    warrants no further discussion.       R. 2:11-3(e)(2).
    A "judge . . . may grant the defendant a new trial if required
    in the interest of justice."        R. 3:20-1.       "Rule 3:20-2 permits a
    defendant to do so 'on the ground of newly-discovered evidence'
    at any time."     State v. Armour, 
    446 N.J. Super. 295
    , 305 (App.
    Div. 2016).
    To meet the standard for a new trial based on
    newly discovered evidence, defendant must show
    that the evidence is 1) material, and not
    "merely"     cumulative,    impeaching,     or
    contradictory; 2) that the evidence was
    discovered after completion of the trial and
    was "not discoverable by reasonable diligence
    beforehand"; and 3) that the evidence "would
    12
    probably change the jury's verdict if a new
    trial were granted."
    [State v. Ways, 
    180 N.J. 171
    , 187 (2004)
    (quoting State v. Carter, 
    85 N.J. 300
    , 314
    (1981)).]
    "[A] motion for a new trial is addressed to the sound discretion
    of the trial judge, and the exercise of that discretion will not
    be interfered with on appeal unless a clear abuse has been shown."
    Armour, supra, 446 N.J. Super. at 306 (quoting State v. Russo, 
    333 N.J. Super. 119
    , 137 (App. Div. 2000) (alteration in original)).
    Defendant's    motion   was   not    based    upon    newly-discovered
    evidence in the traditional sense.               She did not present newly
    discovered, material evidence which, if admitted at trial, would
    have    probably     altered   the   verdict.          Rather,    defendant's
    allegations centered on alleged police misconduct that infringed
    upon her Sixth Amendment rights.           See, e.g., State v. Mazzarisi,
    
    440 N.J. Super. 433
    , 444-446, 449 (App. Div. 2015) (considering
    whether   surreptitious     recording      of    conversations   between     the
    defendant and his attorney at police station was a violation of
    the Sixth Amendment).
    However,    defendant   ignores     the   judge's    rejection   of   the
    essential   premise    of   her   argument.        After    listening   to   the
    testimony and assessing the credibility of the experts, the judge
    concluded that police had never accessed defendant's electronic
    devices in the first instance.            We defer to the judges factual
    13
    findings   because   they   are    "supported   by   sufficient   credible
    evidence in the record."          State v. Elders, 
    192 N.J. 224
    , 243
    (2007).
    Affirmed.
    14