STATE OF NEW JERSEY v. SHAWN SOUTHERLAND (09-10-1750, HUDSON COUNTY AND STATEWIDE) ( 2022 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-3064-19
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    SHAWN SOUTHERLAND,
    a/k/a KEITH DAVIS, and
    SHAWN OBEE,
    Defendant-Appellant.
    _______________________
    Argued November 30, 2021 – Decided February 16, 2022
    Before Judges Rothstadt and Mayer.
    On appeal from the Superior Court of New Jersey, Law
    Division, Hudson County, Indictment No. 09-10-1750.
    Shawn Southerland, appellant, argued the cause pro se.
    Stephanie Davis Elson, Assistant Prosecutor, argued
    the cause for respondent (Esther Suarez, Hudson
    County Prosecutor, attorney; Stephanie Davis Elson, on
    the brief).
    PER CURIAM
    Defendant Shawn Southerland appeals from the September 3, 2019 denial
    of his second petition for post-conviction relief (PCR), and from the March 12,
    2020 denial of his motions for reconsideration and for a new trial. We affirm.
    The facts leading to defendant's conviction are set forth in our earlier
    opinions affirming defendant's conviction and sentence, State v. Southerland
    (Southerland I), No. A-4663-11 (App. Div. Jan. 30, 2015) (slip op. at 6-14, 29),
    and affirming the denial of his first PCR petition, State v. Southerland
    (Southerland II), No. A-3299-15 (App. Div. Mar. 19, 2018) (slip op. at 1), and
    need not be repeated here. Suffice it to say that after unsuccessfully opposing
    the State's motion at trial to admit into evidence a police officer's testimony
    about a conversation he overheard between defendant and the victim's brother,
    defendant was convicted after a bench trial of committing murder, N.J.S.A.
    2C:11-3(a), and hindering apprehension, N.J.S.A. 2C:29-3(b)(1). Defendant's
    motion for a new trial was denied, and the sentencing court imposed an
    aggregate sentence of thirty years' imprisonment subject to a No Early Release
    Act, N.J.S.A. 2C:43-7.2, parole disqualifier.
    As part of our description of the issues defendant raised on direct appeal
    from his conviction, we observed the following:
    In Points III, IV, and V, defendant argues the judge
    erred by granting the State's motion to admit the
    2                                  A-3064-19
    statements he made to [the victim's brother] during their
    telephone conversation into evidence.           Defendant
    asserts that [the police o]fficer . . . violated the New
    Jersey Wiretapping and Electronic Surveillance Act,
    N.J.S.A. 2A:156-1 to -34 (the Wiretap Act), by
    listening to the telephone call, and that the officer's
    lengthy presence in [the victim'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.
    [Southerland I, slip op. at 20.]
    We explained in detail our reasons for rejecting defendant's contentions
    as to these issues. Id. at 20-24. After we affirmed defendant's conviction and
    sentence, the Supreme Court denied his petition for certification.       State v.
    Southerland, 
    221 N.J. 566
     (2015).
    On June 1, 2015, defendant filed his first PCR petition, which was denied
    by Judge Sheila A. Venable. Defendant appealed, and we affirmed substantially
    for the reasons expressed by Judge Venable. Southerland II, slip op. at 11. In
    his first PCR petition, defendant claimed, among other issues, ineffective
    assistance of appellate counsel for failure to raise the issue of the admission of
    the officer's testimony regarding the overheard phone call. Pertinent to the
    present appeal, in our opinion affirming the denial of PCR, we described Judge
    3                                   A-3064-19
    Venable's response to the issues raised by defendant's first petition by stating
    the following:
    Last, Judge Venable found that defendant's argument
    that appellate counsel was ineffective because he failed
    to argue the admissibility of statements defendant made
    on the phone when a police officer was present on the
    other line was meritless. The judge observed that
    appellate counsel explained to defendant that he was
    "reluctant to raise [the] issue on direct appeal as [he]
    believe[d], strategically, that it would detract from the
    issues that [he] intend[ed] to raise[.]"          Further,
    defendant raised the issue himself in a pro se
    supplemental appellate brief, and we found his
    argument to be meritless.
    [Southerland II, slip op. at 7-8 (alterations in original).]
    The Supreme Court later denied defendant's petition for certification on
    October 23, 2018. State v. Southerland, 
    235 N.J. 351
     (2018).
    Defendant then filed a petition for habeas corpus with the United States
    District Court for the District of New Jersey, which was denied on March 26,
    2019, based on its conclusion, like ours, that there was no Fourth Amendment
    violation in the officer's listening to the conversation with the victim's brother's
    consent. Southerland v. Nogan, No. 18-9469 (JLL), 
    2019 U.S. Dist. LEXIS 51572
    , at *1, *16-19 (D.N.J. Mar. 26, 2019). On October 4, 2019, the United
    States Court of Appeals for the Third Circuit denied his application for a
    4                                    A-3064-19
    Certificate of Appealability. Southerland v. Adm'r E. Jersey State Prison, No.
    19-1784, 
    2019 U.S. App. LEXIS 40346
    , at *1-2 (3d Cir. Oct. 4, 2019).
    On July 29, 2019, defendant filed his second PCR petition, which was
    denied on September 3, 2019. In his second PCR petition, defendant once again
    claimed ineffective assistance of appellate counsel for failure to raise the issue
    of the admission of the officer's testimony regarding the overheard phone call
    on direct appeal. Judge Venable denied the petition because the claim against
    appellate counsel was not cognizable under Rule 3:22-4(b)(2), which restricts
    the issues that can be raised in a second PCR petition, and because defendant
    raised arguments that were disposed of on direct appeal and in his first PCR
    petition.
    On September 23, 2019, defendant filed a motion for a new trial, and, four
    days later, he filed a motion for reconsideration of the denial of his second PCR
    petition.   On February 27, 2020, defendant filed a motion for evidentiary
    hearing.
    On March 12, 2020, Judge Venable issued a letter opinion setting forth
    her reasons for denying reconsideration of the order denying defendant's second
    petition for PCR and for denying an evidentiary hearing, reiterating her original
    reasons for the denial of his second PCR petition. The judge also denied
    5                                   A-3064-19
    defendant's motion for a new trial, relying on the same reasons for our rejection
    of defendant's earlier appeals and for her denial of his first petition, concluding
    again that the issue of the admission of the officer's testimony regarding the
    overheard phone call had already been fully addressed and adjudicated and for
    that reason it was not "in the interest of justice" to order a new trial. This appeal
    followed.
    On appeal defendant argues the following points:
    POINT I
    THE PCR COURT ERRED IN DENYING
    DEFENDANT'S SECOND PETITION FOR POST-
    CONVICTION RELIEF: CONCERNING HIS CLAIM
    THAT HE WAS DENIED THE EFFECTIVE
    ASSISTANCE OF COUNSEL ON DIRECT APPEAL
    FOR    COUNSEL'S    FAILURE   TO    APPEAL
    SUPPRESSIBLE EVIDENCE BECAUSE ABSENT
    EXCLUDABLE EVI[D]ENCE THE RESULT OF THE
    VERDICT WOULD HAVE BEEN DIFFERENT;
    AND, DEFENDANT WOULD BE ENTITLED TO A
    NEW TRIAL.      (THE PCR COURT BARRED
    DEFENDANT UNDER [RULE] 3:22-5 ON THE
    FIRST PCR PETITION ON THE ISSUE)[.]
    POINT II
    DEFENDANT'S RIGHTS WERE VIOLATED WHEN
    THE OFFICER ENTERED DEFENDANT'S HOME
    WITHOUT A WARRANT AND SET UP
    TELEPHONE SURVEILLANCE WITHOUT PRIOR
    APPROVAL    THEN    [REQUESTED]  THAT
    TELEPHONE BE PLACED ON SPEAKER
    6                                    A-3064-19
    THEREBY VIOLATING DEFENDANT'S RIGHT TO
    PRIVACY AND THE STATUTORY PROVISIONS
    OF N.J.S.A. 2A:156[]A[-]4(c): WARRANTING
    SUPPRESSION OF THE ALLEGED ORAL
    STATEMENTS AND ITS FRUIT AND NEW TRIAL
    (UNRESOL[V]ED BY THE APPELLATE DIVISION
    ON DIRECT APPEAL).
    POINT III
    THE TRIAL COURT ERRED IN DENYING
    DEFENDANT'S MOTION FOR NEW TRIAL UNDER
    BRADY ITS PROGENY AND [RULE] 3:13-3
    BECAUSE THE STATE WITHHELD, SUPPRESSED
    AND FAILED TO DISCLOSE MATERIAL
    IMPEACHMENT EVIDENCE WHICH AFFECTED
    THE OUTCOME OF THE TRIAL.
    POINT IV
    THE TRIAL COURT DENIED DEFENDANT DUE
    PROCESS IN POST-CONVICTION PROCEEDINGS
    IN  FAILING   TO   ADDRESS     THE   [SIC]
    DEFENDANT'S     MOTION     TO     COMPEL
    DISCOVERY IN RELATION TO HIS PETITION FOR
    POST-CONVICTION RELIEF AND MOTION FOR
    NEW TRIAL IN THAT COURT.
    [(Third alteration in original).]
    We are not persuaded by any of defendant's contentions, which we
    conclude are without sufficient merit to warrant discussion in a written opinion.
    R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge
    Venable in her written decisions that accompanied the challenged orders. We
    7                                  A-3064-19
    add only that, contrary to defendant's assertion on appeal that we did not
    conclusively decide the "central issue raised," there should be no doubt now that
    the issue of the admission of the officer's testimony regarding the overheard
    phone call was previously decided by this court.
    Affirmed.
    8                                   A-3064-19
    

Document Info

Docket Number: A-3064-19

Filed Date: 2/16/2022

Precedential Status: Non-Precedential

Modified Date: 2/16/2022