Opinion
DOCKET NO. A-1403-12T1 DOCKET NO. A-1912-12T1
08-03-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT S. MELIA, JR., a/k/a ROBERT S. MELIA, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. HEATHER LEWIS, Defendant-Appellant.
Mark W. Catanzaro argued the cause for appellant Robert S. Melia, Jr. Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for appellant Heather Lewis (Joseph E. Krakora, Public Defender, attorney; Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Sarah E. Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Simonelli and Leone. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10-12-01301. Mark W. Catanzaro argued the cause for appellant Robert S. Melia, Jr. Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for appellant Heather Lewis (Joseph E. Krakora, Public Defender, attorney; Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Sarah E. Ross, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Ross, of counsel and on the brief). PER CURIAM
Defendants Robert S. Melia, Jr. and Heather Lewis were indicted, tried, and convicted together. They each appeal from their judgments of conviction. We consolidate these back-to-back appeals for purposes of this opinion. We affirm.
I.
Melia was a police officer. He had a romantic relationship with Lewis. Earlier, Lewis had a relationship and a son with the uncle of three of the victims: O.C., O.C.'s younger sister J.C., and their cousin C.G. As a result, O.C., J.C., and C.G. all knew Lewis.
Lewis and Melia began living together in 2002. The three young victims visited Lewis and Melia, and babysat Lewis's son, at Melia's home. There, defendants perpetrated sex crimes on the girls.
In approximately 2002, when O.C. was about fourteen years old, Melia repeatedly had sex with her in his bedroom. In 2003, both defendants used physical force on O.C. so Melia could touch her vagina and have vaginal intercourse with her, while Lewis touched O.C.'s breasts.
Between 2002 and 2004, when J.C. was between thirteen and fifteen years old, she slept with Lewis in Melia's bedroom and woke up to find Melia restraining her while Lewis used a vibrator to penetrate J.C.'s vagina. On another occasion, Lewis touched Melia's penis in J.C.'s presence.
In 2007, Lewis victimized a fourteen-year-old boy, A.B., who was related to C.G. While A.B. was babysitting at a house on Lewis's street, Lewis came over with C.G. Lewis stimulated A.B.'s penis through his clothes, and made C.G. perform oral sex on him. Lewis then had vaginal intercourse with A.B.
On April 10, 2008, thirteen-year-old C.G. was brought to the Burlington County Prosecutor's Office (BCPO) by her stepfather. She told Detective David Kohler that defendants had forced her to have sex with Melia, and that Lewis used a vibrator on her. C.G. suggested the detective talk to O.C. and J.C., who were interviewed on April 11. In addition to describing how defendants sexually abused them, all three girls revealed that Melia's genital area was shaved.
That night, Detective Kohler and Detective Sergeant Michael Sperry asked Lewis to come to an interview at the BCPO. Lewis confirmed Melia shaved his genitals. Lewis denied any abuse, but admitted the three girls were at Melia's house during the time they claimed to have been abused. Lewis said she told the girls in Melia's presence that she and Melia used sex toys and bondage on each other. Lewis added she and Melia videotaped their sexual activities in his bedroom using a video camera. At 1:21 a.m., while Lewis was at the BCPO, Sperry saw Lewis was receiving a call from Melia, who had not yet been arrested.
Detective Kohler obtained arrest and search warrants. The search warrant allowed the BCPO to photograph Melia's pubic area, and to search his house. Kohler and Sergeant Sperry arrested defendants. During the photographing of Melia's genital area, Kohler saw it was clean-shaven.
Meanwhile, Sergeant Michael Wiltsey and other officers began the search of Melia's house. The officers found restraints, ropes, dildos, vibrators, and other sex toys. They also found a digital video camcorder in Melia's computer room, and digital mini-videotapes in his adjacent bedroom.
Detective Kohler and Sergeant Sperry later joined the search of Melia's house. Using the camcorder to review the mini-videotapes, Sperry discovered a mini-videotape marked "X" that showed Melia's shaved genitals being sucked by a young calf.
Sergeant Sperry noticed the camcorder had the ability to export video to a computer, and that Melia's computer was capable of importing video from a camcorder. Sperry and Kohler contacted an assistant prosecutor, who advised that because the computer had the ability to import videos, it was covered under the search warrant.
Sperry moved the mouse of Melia's computer and discovered the computer was deleting files. He contacted the State Police high technology crime unit, which dispatched an officer who disconnected and seized Melia's computer tower, laptop, and external hard drive (collectively "computer"). On April 17, Detective Kohler obtained a second warrant specifically to search the computer.
The resulting search found two large computer files containing home videos converted to digital format. One forty-five-minute video showed Lewis penetrating O.C.'s exposed vagina and anus with vibrators and dildos while the unresponsive O.C. was bound with the restraints and blindfolded. The video was filmed by a male in Melia's bedroom and also showed rope and bedding. A nine-minute video showed a blindfolded O.C. wearing restraints and performing oral sex on Lewis. That video was last accessed on April 10, the day C.G.'s stepfather brought her to the BCPO. Both videos had been deleted and were found in the computer's recycle bin.
The computer search also revealed a video of Melia and Lewis having sex in 2006. The video showed Melia, naked and with a shaved pubic area, bound with the same restraints used in the O.C. videos, and near the same rope and bedding. Photographs from the video were introduced at trial.
At the ten-day trial, the jury heard testimony from O.C., J.C., C.G., A.B., Detective Kohler, Sergeants Sperry and Wiltsey, and Lewis. The jury considered forty-seven counts. The jury convicted Lewis of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) in one count regarding C.G. and another count regarding C.G. and A.B. The jury hung on nineteen other counts relating to C.G., which were later dismissed.
Also regarding A.B., the jury convicted Lewis of second-degree sexual assault on a victim at least thirteen but less than sixteen year old, N.J.S.A. 2C:14-2(c)(4); fourth-degree criminal sexual conduct, N.J.S.A. 2C:14-3(b); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The jury acquitted Lewis of sexual assault using physical force.
Regarding J.C., the jury convicted Melia and Lewis of first-degree aggravated sexual assault while aided and abetted, N.J.S.A. 2C:14-2(a)(5); second-degree sexual assault using physical force, N.J.S.A. 2C:14-2(c)(1); second-degree sexual assault on a victim at least thirteen but less than sixteen year old, N.J.S.A. 2C:14-2(c)(4); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
With respect to O.C., the jury convicted Melia and Lewis of three counts of first-degree aggravated sexual assault while aided and abetted, N.J.S.A. 2C:14-2(a)(5); two counts of first-degree aggravated sexual assault on a victim who was physically helpless, N.J.S.A. 2C:14-2(a)(7); three counts of second-degree sexual assault using physical force, N.J.S.A. 2C:14-2(c)(1); second-degree sexual assault on a victim at least thirteen but less than sixteen year old, N.J.S.A. 2C:14-2(c)(4); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); third-degree invasion of privacy by filming O.C.'s intimate parts, N.J.S.A. 2C:14-9(b); two counts of third-degree aggravated criminal sexual conduct, N.J.S.A. 2C:14-3(a); and four counts of fourth-degree criminal sexual conduct, N.J.S.A. 2C:14-3(b).
Finally, the jury convicted Melia of second-degree official misconduct for failing to arrest Lewis for her sexual assaults, N.J.S.A. 2C:30-2(b).
The court sentenced defendants to twenty years in prison with 85% parole ineligibility on one count of first-degree aggravated sexual assault on O.C. while aided and abetted. They were also sentenced to a consecutive five-year sentence for invasion of privacy. The court sentenced Melia to another consecutive five-year sentence for official misconduct. All other counts received concurrent sentences or were merged.
Defendants appeal the October 24, 2012 judgments of conviction. Melia raises the following arguments:
POINT I. THE SEIZURE OF MELIA'S COMPUTERS VIOLATED MELIA'S RIGHT TO BE FREE FROM UNLAWFUL SEARCHES.Lewis raises the following arguments:
POINT II. THE CREDIBILITY FINDINGS OF THE COURT ARE CLEARLY MISTAKEN AND SO PLAINLY UNWARRANTED THAT THE COURT MUST SUPPRESS THE EVIDENCE AND REVERSE MELIA'S CONVICTION.
POINT III. THE RULING BELOW APPROVED A GENERAL WARRANT AND DETERIORATES THE PROTECTIONS OF THE FOURTH AMENDMENT OF THE NEW JERSEY CONSTITUTION.
POINT IV. THERE WAS NO PROBABLE CAUSE TO SEIZE MELIA'S COMPUTER EQUIPMENT AND ITS SEIZURE WAS BASED SOLELY ON SPECULATION AND GUESSWORK.
POINT V. THE STATE WAS REQUIRED TO OBTAIN A SUPPLEMENTAL SEARCH WARRANT.
POINT VI. THE LOWER COURT FAILED TO SET FORTH SUFFICIENT REASONS ON THE RECORD.
POINT VII. THE INTERESTS OF JUSTICE REQUIRE THAT THE APPELLATE DIVISION CLARIFY THE LOWER COURT'S INCONSISTENT OPINIONS.
POINT VIII. THE COURT'S MULTIPLE FAILURES TO ADDRESS THE BREADTH OF WARRANT IS A VIOLATION OF MELIA'S RIGHT TO DUE PROCESS.
POINT IX. THE ADMISSION OF NAKED PHOTOGRAPHS OF MELIA WERE NOT ADMISSIBLE PURSUANT TO N.J.R.E. 404(B) AND SHOULD HAVE BEEN EXCLUDED ENTITLING MELIA TO A NEW TRIAL.
POINT X. THERE WAS NO LAWFUL EVIDENTIAL BASIS TO ADMIT THE PHOTOGRAPHS OF THE COMPUTER DELETING FILES AND/OR THE "FILE PATH" INFORMATION.
POINT I. THE SEARCH WARRANT DID NOT AUTHORIZE THE SEIZURE OF THE CO-DEFENDANT'S COMPUTER NOR WAS THERE AN EXCEPTION TO THE WARRANT REQUIREMENT TO JUSTIFY THE SEIZURE.
A. THE WORDING RELIED UPON IN THE SEARCH WARRANT TO JUSTIFY THE SEIZURE OF THE COMPUTER WAS VAGUE AND OVERBROAD.
B. THERE WAS NO PROBABLE CAUSE TO SEIZE MELIA'S COMPUTER.
C. THERE WERE NO EXIGENT CIRCUMSTANCES JUSTIFYING THE COMPUTER'S SEIZURE.
D. CONCLUSION.
POINT II. DEFENSE COUNSEL'S FAILURE TO MOVE FOR SEVERANCE OF THE COUNTS INVOLVING SEPARATE ALLEGED VICTIM CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).
POINT III. THE COURT COMMITTED REVERSIBLE ERROR WHEN IT MODIFIED THE MODEL CHARGES, DISTRIBUTED AN "OUTLINE" OF THE OFFENSES, AND A PAGE OF DEFINITIONS TO THE JURY.
We first address the challenges to the search of Melia's home, and the seizure and search of his computer. Melia filed a motion to suppress which the motion judge denied without an evidentiary hearing. Melia then filed a motion for reconsideration, arguing the motion judge's opinion lacked testimonial support. A second judge (the trial judge) agreed to reconsider the motion. The trial judge held an evidentiary hearing, credited the testimony of Sergeants Sperry and Wiltsey, and denied suppression in an eleven-page written opinion. The judge found the warrant to search Melia's home was supported by probable cause and was sufficiently particular. The judge also found the seizure and search of his computer was authorized by that warrant, as well as by exigent circumstances and the subsequent search warrant.
The motion judge found the seizure of Melia's computer was supported by probable cause and exigent circumstances.
We reject Melia's complaint that the trial judge's reasoning was not consistent with the motion judge's now-vacated opinion, especially as Melia sought reconsideration and an evidentiary hearing, on which the trial judge based its opinion. We also deny Melia's claims that the trial judge did not set forth sufficient reasons for its ruling, or rule on the breadth of the warrant.
The United States and New Jersey Constitutions provide that a warrant shall issue "upon probable cause," and "particularly" describe the place to be searched and the items to be seized. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. "It is well settled that a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388-89 (2004). "Accordingly, courts 'accord substantial deference to the discretionary determination resulting in the issuance of the warrant.'" State v. Keyes, 184 N.J. 541, 554 (2005).
"[A]n appellate court's role is not to determine anew whether there was probable cause for issuance of the warrant, but rather, whether there is evidence to support the finding made by the warrant-issuing judge." State v. Chippero, 201 N.J. 14, 19-21 (2009). "Doubt as to the validity of the warrant should ordinarily be resolved by sustaining the search." Keyes, supra, 184 N.J. at 554 (internal quotation marks omitted).
A.
We first consider whether the search warrant for Melia's house was supported by probable cause. "Probable cause for the issuance of a search warrant requires 'a fair probability that contraband or evidence of a crime will be found in a particular place.'" Chippero, supra, 201 N.J. at 28.
The warrant allowed the BCPO and State Police to seize items in four categories: (1) "Sex related items, including but not limited to dildos, vibrators, restraints, massage devices, and any other devices or implements used for sexual stimulation;" (2) "photographs of Robert Melia Jr.'s penis and pubic area;" (3) "any sexually explicit photographs or videotapes of a sexually explicit nature;" and (4) "anything else of evidential value that a complete and thorough search might disclose."
"'[T]he four corners of the supporting affidavit,'" id. at 26, show ample probable cause to search Melia's home for items in the first three categories. As Detective Kohler's affidavit stated, the interviews of C.G., O.C., and J.C. related that defendants performed criminal sexual activity against them in Melia's house and used vibrators. Lewis's interview confirmed that the three girls had been in Melia's house, that he had a shaved pubic area, and that defendants used restraints and sex toys and videotaped their sexual activities.
B.
Next, Melia challenges the warrant's description of the items to be seized. He complains the items sought are not necessarily illegal. However, even if not illegal, such items can constitute "'evidence of a crime.'" Id. at 28.
Melia claims the warrant was vague in seeking "any sexually explicit photographs or videotapes of a sexually explicit nature." He cites State v. Muldowney, 60 N.J. 594 (1972), which found overbroad a warrant seeking "obscene" material because it "delegated to [the officer] the function of deciding whether the materials were obscene." Id. at 598, 600. The Court added:
We do not mean to suggest, however, that a minute and detailed description of the items to be seized is necessary. But the warrant must be sufficiently definite so that the officer executing it can identify the property sought with reasonable certainty. For example, the warrant here could have directed the seizure of films depicting natural or unnatural sex acts. Such a direction while giving the officer some discretion is not unreasonably broad.
[Id. at 600-01 (citations omitted); accord State v. Carmel, 169 N.J. Super. 370, 375-76 (App. Div. 1979).]
Here, the warrant avoided using the legal term "obscene" and instead used the comprehensible term "sexually explicit." The warrant thus was "sufficiently definite so that the officer executing it can identify the property sought with reasonable certainty." Muldowney, supra, 60 N.J. at 600.
Melia's final challenge to the warrant focuses on the fourth category: "along with anything else of evidential value that a complete and thorough search might disclose." That exact language was found "sufficiently definite" by our Supreme Court because it "must be read in the context of the particular items specified in the warrant and the particular crime that is the occasion for the warrant." State v. Reldan, 100 N.J. 187, 196 & n.2 (1985). In any event, the validity of that language is irrelevant regarding the sex toys, restraints, and sexually-explicit videos seized under the warrant's three preceding categories. Evidence seized under valid portions of a warrant "should not be excluded because a portion of the warrant" is overbroad. State v. Burnett, 232 N.J. Super. 211, 217 (App. Div. 1989).
Because exigent circumstances justified seizure of the computer, we need not address whether the warrant's clause "anything else of evidential value that a complete and thorough search might reveal" authorized seizure of the computer.
C.
Melia challenges the execution of the search warrant for his house, and the seizure and search of his computer. We must determine whether the officers' conduct in executing the warrant was "objectively reasonable in light of the facts known to the law enforcement officer at the time of the search." State v. Rockford, 213 N.J. 424, 441 (2013) (internal quotation marks omitted).
After hearing the testimony of Sergeants Sperry and Wiltsey, the trial judge found the following facts. The searching officers found a computer in the room next to Melia's bedroom. The computer screen was dark, as confirmed by Wiltsey's photographs. Aware that photographs are commonly stored on computers, Sperry intentionally moved the computer's mouse, activating the computer's display screen. The screen showed the computer was in the process of deleting files. Wiltsey took photos of the file deletion message on the screen.
Melia challenges the court's findings crediting the sergeants' testimony. We must hew to our "deferential standard of review." Id. at 440. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial judge's decision so long as those findings are supported by sufficient credible evidence in the record." Ibid. (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original; internal quotation marks omitted).
"'Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record.'" State v. Kuropchak, 221 N.J. 368, 382 (2015). Here, the trial judge found the testimony of Sergeants Wiltsey and Sperry "was straightforward, their answers prompt," with "no glaring inconsistencies."
Melia points out that the State's pre-hearing briefs stated the computer screen was illuminated without the officers touching the computer, whereas the sergeants testified the computer screen illuminated when Sperry touched the computer mouse. Melia claims the court's credibility findings were "'so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014). We disagree. The trial judge properly credited the sergeants' eyewitness testimony over a legal brief's prediction of what the testimony would be.
Thus, substantial evidence supported the court's finding that Sergeant Sperry moved the computer mouse to illuminate the computer's display screen. We next consider whether moving the mouse was proper and within the scope of the search warrant.
D.
It is a basic principle of search and seizure that a warrant to search a house for an object authorizes the officers to look everywhere in the house the object might be found:
A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found."When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers . . . must give way to the interest in the prompt and efficient completion of the task at hand." Id. at 821-22, 102 S. Ct. at 2171, 72 L. Ed. 2d at 591. "This rule applies equally to all containers[.]" Id. at 822, 102 S. Ct. at 2171, 72 L. Ed. 2d at 592.
[United States v. Ross, 456 U.S. 798, 820-21 & n.27, 102 S. Ct. 2157, 2170-71 & n.27, 72 L. Ed. 2d 572, 591 & n.27 (1982) (citing 2 W. LaFave, Search and Seizure, §4.10, at 152 (1978)).]
This same principle allows officers executing a search warrant for a location to search "computer disks and hard drives" found in the location "if at least one of the items described in the warrant as an object of the search could be concealed therein." 2 W. LaFave, Search and Seizure § 4.10(d) at 960-63 & n.138 (5th ed. 2012) (citing, e.g., United States v. Hudspeth, 459 F.3d 922 (8th Cir. 2006), reinstated, 518 F.3d 954, 961 (8th Cir. 2008) (en banc)).
Here, the search warrant authorized the officers to look for "any sexually explicit photographs or videotapes of a sexually explicit nature," and "photographs of Robert Melia Jr.'s penis and pubic area." The probable cause that defendants filmed their sexual activities was supplemented by the search's discovery of a digital videotape showing they also used the video camera to film illicit sexual activities, namely Melia's bestiality. That such videos could be transferred to the computer was shown by the camera's ability to export digital video to the computer, and the capability of the computer to import video, including through an S-video port. Thus, as the trial judge found, Sergeant Sperry correctly believed he had probable cause that the computer contained photographs and videos sought under the search warrant.
"S-video is a technology for transferring video images between video cameras" and computers with a sharper image. United States v. Donato-Morales, 382 F.3d 42, 44 (1st Cir. 2004).
Because Sperry had that subjective belief, this is not "a court-devised theory of justification." State v. Ercolano, 79 N.J. 25, 38 (1979). In any event, our Court has abandoned Ercolano's focus on the officer's subjective belief. State v. Bruzzese, 94 N.J. 210, 225 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Melia complains the warrant and its affidavit did not mention his computer, even though C.G. had told the BCPO he had a computer. However, the girls did not tell the BCPO that defendants kept the sexual photos and videos on the computer. In opposing Melia's motion to reconsider, the State conceded that, before the warrant was executed "[w]e did not have probable cause to search the computer in terms of placing it in our warrant application." Thus, the warrant "'described the items to be searched and seized as particularly as could be reasonably expected given the nature of the crime and the evidence [the State] then possessed.'" United States v. Giberson, 527 F.3d 882, 886 (9th Cir. 2008); see also Reldan, supra, 100 N.J. at 196.
Because that position is consistent with our ruling, we need not consider Melia's argument that the State is barred from taking a contrary position by judicial estoppel.
In any event, the warrant authorized the officers to search the entire house for the specified photographs and videos. In such a warranted search, computers should not be treated "differently from storage mediums such as filing cabinets and briefcases." Giberson, supra, 527 F.3d at 887. "[T]here is no reason why officers should be permitted to search a room full of filing cabinets or even a person's library for documents listed in a warrant but should not be able to search a computer." Id. at 888. "While the inclusion of the word 'computer' would have specified one location among several where the officers might look for those items, its omission did not prevent the officers from searching [Melia's] computer for such records." Hudspeth, supra, 459 F.3d at 927. The "'failure of the warrant to anticipate the precise container in which the material sought might be found' was not fatal," especially as the officers acquired "ample evidence that the documents authorized in the warrant could be found on [the] computer." Giberson, supra, 527 F.3d at 886-87.
Because Sergeant Sperry acquired probable cause that the videos listed in the warrant were on Melia's computer, he was permitted to move the mouse to illuminate the screen and see if it displayed an image within the scope of the warrant. See id. at 884-85, 888 (search of a computer was proper when officers executing a warrant for records relating to identity theft found near the computer fake IDs which the computer arguably could have printed).
Cf. United States v. Payton, 573 F.3d 859, 860, 863 (9th Cir. 2009) (officers executing a warrant found "nothing in the neighborhood of Payton's computer, or indeed in the entire residence, that suggested that evidence of drug sales or anything else specified in the warrant would be found on the computer in his bedroom").
Indeed, Giberson held that, because "the searching agents reasonably believed that documents specified in the warrant would be found stored in the computer," a "seizure of the computer was therefore reasonable" and within "the scope of the warrant." Id. at 886-87, 889. We need not decide whether that was true here, because if "a recognized exception to the warrant requirement applies, such as exigent circumstances, then no warrant is needed." State v. Earls, 214 N.J. 564, 569 (2013).
E.
Because the computer was deleting files, exigent circumstances justified the seizure of Melia's computer. Sperry believed Melia may have anticipated his arrest and caused the computer to start deleting evidence. Sperry's belief was reasonable, especially as Melia tried to call Lewis while she being interviewed by the BCPO.
Before Sperry touched the mouse, the officers had decided to seize the computer. We need not address whether seizure would have been appropriate at that point because the officers did not unplug, move, or seize the computer until they saw the computer was deleting files. "The proper focus of [the constitutional] inquiry is on the conduct of the officers and not their subjective intent." State v. Brown, 205 N.J. 133, 146 (2011).
"[E]xigent circumstances will be present when inaction due to the time needed to obtain a warrant will create a substantial likelihood . . . that evidence will be destroyed or removed from the scene." State v. Johnson, 193 N.J. 528, 553 (2008).
[S]ome factors to be considered in determining whether law enforcement officials faced such circumstances are the urgency of the situation, the time it will take to secure a warrant, the seriousness of the crime under investigation, and the threat that evidence will be destroyed or lost . . . unless immediate action is taken.
[Id. at 552-53.]
Here, the crimes under investigation were very serious, and "there was a reasonable belief that the evidence was about to be lost or destroyed." State v. Walker, 213 N.J. 281, 296 (2013). This created an urgent situation because files could be deleted while a warrant was secured.
In appropriate circumstances, electronic devices can be immediately searched to avoid the possible deletion of evidence. In State v. DeLuca, 168 N.J. 626 (2001), a seized "pager could store only a finite number of pages in its electronic memory, and . . . once that capacity was reached, the pager would automatically delete the oldest message each time it received a new one." Id. at 630. Because an "incoming page put the police in reasonable apprehension of losing information in the event of a subsequent page," our Supreme Court held an immediate search of the pager was "objectively reasonable under the totality of the circumstances." Id. at 633-34. In Riley v. California, 573 U.S., ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), the United States Supreme Court "generally" required a warrant to search a seized smartphone, but indicated that "[i]f 'the police are truly confronted with a "now or never" situation,' — for example, circumstances suggesting that a defendant's phone will be the target of an imminent remote-wipe attempt — they may be able to rely on exigent circumstances to search the phone immediately" in order "to prevent the imminent destruction of evidence." Id. at ___, ___, 134 S. Ct. at 2486-87, 2493-94, 189 L. Ed. 2d at 445, 451.
Here, the officers merely seized the computer and then properly obtained a warrant to search it. "'Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant,'" the Fourth Amendment "'permit[s] seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it[.]'" State v. Marshall, 123 N.J. 1, 68 (1991) (quoting United States v. Place, 462 U.S. 696, 701, 103 S. Ct. 2637, 2641, 77 L. Ed. 2d 110, 117 (1983)), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). Here, it was reasonable to seize the computer to prevent the deletion of data while officers obtained a warrant.
See, e.g., United States v. Brown, 701 F.3d 120, 127 (4th Cir. 2012); United States v. Clutter, 674 F.3d 980, 985 (8th Cir.), cert. denied, ___ U.S. ___, 133 S. Ct. 272, 184 L. Ed. 2d 148 (2012); United States v. Bradley, 644 F.3d 1213, 1261-63 (11th Cir. 2011).
We note that the searching officers deferred to the judgment and evaluation of the State Police's high technology crimes unit (high tech unit) on when and how to seize a computer displaying a file deletion message. Sergeant Sperry testified that "[t]his was not a normal circumstance. This was something that all of us at the scene had never encountered before." Because he "didn't know how to properly handle" seizing a computer that was deleting files, he promptly reached out to the high tech unit "to seek their guidance." As instructed by the high tech unit, the searching officers did not touch, unplug, move, or seize the computer until the high tech unit's officer arrived, examined, and seized the computer, about two-and-one-half hours later.
Before the computer's files were searched, Detective Kohler applied for a second warrant to search the seized computer for pornographic videos, based on information lawfully obtained before and during the search of the house. As the trial judge found, the procurement of the second search warrant "effectively cured any constitutional shortcoming." See State v. Smith, 212 N.J. 365, 394, 396 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013); see also State v. Johnson, 120 N.J. 263, 289-90 (1990).
Melia does not dispute the second search warrant was properly issued and supported by probable cause. He also does not contend the searching officers erred by not seeking a seizure warrant while they waited for the high tech unit to make the seizure decision. Therefore, we do not evaluate such a contention.
The trial judge found the deletion message gave "reason to seize the computer," because "there was a distinct possibility the computer was destroying evidence," creating "exigent circumstances." "'[T]he application of the doctrine of exigent circumstances demands a fact-sensitive, objective analysis.'" Walker, supra, 213 N.J. at 291-92 (quoting DeLuca, supra, 168 N.J. at 632). Here, the judge's "finding that there were exigent circumstances" was "supported by the record" and was not "'so clearly mistaken that the interests of justice demand intervention and correction.'" See Johnson, supra, 193 N.J. at 555. Accordingly, we uphold the judge's denial of Melia's motion to suppress.
F.
Lewis joined in Melia's motion to suppress, and echoes Melia's appellate arguments challenging the search of his house. We reject her claims for the reasons set forth above.
Thus, we need not reach the State's argument that Lewis "'must show that [she had] a reasonable or legitimate expectation of privacy [in Melia's house that] was trammeled by government authorities.'" State v. Hinton, 216 N.J. 211, 233 (2013); see e.g., State v. Abdullah, 372 N.J. Super. 252, 273-74 (App. Div. 2004), rev'd in part on other grounds, 184 N.J. 497 (2005).
III.
Melia next challenges the admission at trial of photographs taken from the videos of his adult consensual sexual activity with Lewis. No sexual activity was shown in the photographs. Instead, they showed only Melia, bound by ropes and restraints, with his genital area exposed. As the trial judge found, the photographs were relevant both to corroborate the victims' recollection by showing that Melia's genital area was clean shaven closer to the time of the sexual assaults, and to prove Melia used the ropes and restraints for sexual purposes, thus linking him to the O.C. videos. The photographs were thus admissible under N.J.R.E. 404(b). Under Rule 404(b), New Jersey courts have admitted sexual conduct evidence far more prejudicial than the photographs here. E.g., State v. Covell, 157 N.J. 554, 561, 566-67, 571 (1999) (propositioning another young girl and admitting interest in young girls). "'The trial court, because of its intimate knowledge of the case, is in the best position to engage in [the Rule 404(b)] balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard.'" Id. at 564. We find no "'clear error of judgment'" here. Ibid.
In any event, the photographs may have been admissible as intrinsic evidence that "'directly proves' the charged offense." State v. Rose, 206 N.J. 141, 180 (2011); e.g. State v. Sheppard, 437 N.J. Super. 171, 194-95 (App. Div. 2014) (ruling that a video of the defendant three months after the crime was intrinsic evidence to the extent it depicted a possible motive), certif. denied, 221 N.J. 219 (2015).
IV.
Melia lastly challenges the admission at trial of (1) the photographs of his computer's screen, showing it was deleting files, and (2) testimony that videos of the sexual assaults on O.C. were found in the computer's recycle bin and were last accessed on April 3 and April 10, 2010.
New Jersey courts long "have recognized the relevance of post-crime conduct to a defendant's mental state when the conduct demonstrates consciousness of guilt." State v. Williams, 190 N.J. 114, 125 (2007). Tampering with or destroying evidence is "classic consciousness of guilt evidence." Id. at 129.
Melia argues that people routinely delete files from their computer, and thus that the evidence did not "support the inference that a defendant's [attempted deletion] is evidence of consciousness of guilt." State v. Mann, 132 N.J. 410, 422 (1993). We disagree. The evidence supported the reasonable inference that Melia attempted to delete these videos of sexual assaults to conceal his criminal activity. In particular, the evidence indicated Melia last accessed an O.C. video the same day C.G. was taken to the BCPO. Given the complicated relationships among C.G., her stepfather, her cousins O.C. and J.C., Lewis, and Melia, given Melia's connections as a police officer, and given Melia's call to Lewis while she was at the BCPO, the trial judge reasonably inferred that Melia got wind his crimes were being investigated, and attempted to delete the damning videos from his computer.
Moreover, Melia neither offered an "alternative explanations" for why he would delete those particular videos at that particular time, nor showed "possible prejudice" other than the inference of consciousness of guilt. Cf. Mann, supra, 132 N.J. at 422-23 (noting that a suicide attempt may have other explanations and "may be unduly prejudicial under certain circumstances"). The court properly found the probative value of the evidence outweighed any prejudicial effect, and charged the jury using the Model Jury Charge (Criminal), "Flight" (2000) as modified by Melia's counsel.
Melia notes "a trial court ordinarily should hold" a hearing under N.J.R.E. 104. Ibid. However, Melia did not request such a hearing or show he was prejudiced by its absence.
V.
Lewis argues her trial lawyer was ineffective because she did not file a motion to sever the counts involving the different victims. New Jersey courts "routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims 'involve allegations and evidence that lie outside the trial record.'" State v. Hess, 207 N.J. 123, 145 (2011). Such claims generally "should be determined in a post-conviction relief [PCR] proceeding." State v. McDonald, 211 N.J. 4, 30 (2012).
Lewis acknowledges this "'general policy,'" State v. Jenewicz, 193 N.J. 440, 467 n.8 (2008), but argues "the trial record discloses the facts essential to [her] ineffective assistance claim," State v. Allah, 170 N.J. 269, 285 (2002). However, "the record is inadequate to disclose what reasons of tactics and strategy motivated counsel" not to move for severance. See State v. Dixon, 125 N.J. 223, 261 (1991). A PCR hearing could explore whether such reasons appear in the records of Lewis's initial counsel, whose death caused a mistrial of the first trial, or are offered by Lewis's new trial counsel, who declined to file such a motion in the ten months before the new trial.
Lewis asserts there could be no legitimate reason not to move for severance. To the contrary, severing counts would subject Lewis to two or more separate trials, and waive her right against double jeopardy. See R. 3:15-1(b), -2(b), -3(b). Moreover, joinder was arguably beneficial to Lewis's defense that the victims all knew each other and were acting together to falsely accuse her in a conspiracy orchestrated by C.G.'s stepfather to cover up his own sexual abuse of C.G. Therefore, we do not address this ineffectiveness claim on direct appeal.
VI.
Finally, Lewis challenges the trial judge's charge to the jury. Under Rule 1:8-7(b), the judge gave counsel a proposed charge, which it noted was "taken primarily from the model charge," "in conformity with the model charge," and "drafted to conform with this case." The judge gave counsel three days to examine the proposed charge. At the charge conference, both defense counsel asked the judge instead to give the model jury instructions. The judge asked defense counsel what they wanted the judge to include in the proposed charge from the model instructions.
Lewis's counsel referenced the model instructions regarding circumstantial evidence; prior contradictory statements; false-in-one, false-in-all; state of mind; and other topics. The court asked counsel, rather than just offering "this checklist of things," to specify what additional language from the model instructions she wanted to include in the proposed charge, which addressed those topics. Lewis's counsel did not offer any specifics, and did not object to any portion of the charge when given by the court.
Lewis did ask the court to use the model jury instructions. However, the court already examined those instructions and placed into its proposed charge those portions it felt pertinent. See State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999) ("The Model Jury Charges are only guidelines," which may be modified by the trial judge), aff'd o.b., 163 N.J. 140 (2000). Thus, it was reasonable for the court to ask Lewis what language in the model instructions she wished to add. See State v. W.B., 205 N.J. 588, 621-22 (2011) (a trial judge should "consider the parties' position on any issue they or the judge raises before deciding how to charge the jury on a given issue").
To preserve questions for appeal relating to jury instructions, Lewis had to "make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefor." R. 1:7-2. Thus, Lewis was obliged to respond to the court's inquiry by telling the court the specific wording or the specific shortcomings of its proposed charge. Even if a party "submit[s] written requests that the court instruct the jury on the law set forth in the requests," the party must still object "in accordance with R. 1:7-2." R. 1:8-7(b); Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 18 (2000). "No party is entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." State v. Jordan, 147 N.J. 409, 422 (1997).
Because Lewis declined to answer the court's request and failed to provide the required specificity, she must show plain error. R. 2:10-2. She must demonstrate "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (internal quotation marks omitted). Any claim of prejudice "'must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, [and] the arguments of counsel.'" State v. Adams, 194 N.J. 186, 207 (2008).
Lewis specifies on appeal the portions of the model instructions that the trial judge should have included. First, Lewis cites the Model Jury Charge (Criminal), "False-In-One, False-In-All" (1991). However, the judge's instruction was materially indistinguishable from the model instruction. Though Lewis complains it was "blended" into other instructions, it remained intact and successfully conveyed the "false-in-one, false-in-all" concept.
Second, Lewis complains the court's charge omitted some of the Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994). However, the court conveyed the gist of the model instruction by charging the jury that it could take into account any prior inconsistent statements in evaluating a witness's credibility, and that a prior inconsistent statement may also be used as proof of the truth of the facts stated therein.
Lewis notes the omission of the model instruction's language that, "before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness you will want to consider all of the circumstances under which the statement or failure to disclose occurred." Ibid. However, the court's charge told the jury to consider circumstances listed in the model instruction.
Lewis also complains the court's charge did not reference the model instructions optional language about inconsistencies elicited on cross-examination and the explanations therefore. However, the court told the jury to consider "any explanation that a witness has given to explain any discrepancies or inconsistencies in the testimony offered." The trial judge used an example about inconsistent statements about whether a traffic light was red or green, which was simply a variation on the model instruction's example of inconsistent statements that a car was red or blue. Ibid. We find no plain error in the judge's charge on prior inconsistent statements.
Third, Lewis complains the trial judge did not give the full Model Jury Charge (Criminal), "Circumstantial Evidence" (1993). However, the judge's charge included its central paragraphs. Moreover, the judge's charge referenced its opening instruction about circumstantial evidence, including the model instruction's illustration about snow falling at night. The judge properly asked the jurors if anyone "would like the Court to repeat that," but no juror requested its repetition. See Model Jury Charge (Criminal), "Criminal Final Charge Parts 1 and 2 (General Information to Credibility of Witnesses)" n.1 (2008). Lewis has not identified anything from the model instruction that was not adequately covered by the judge's charge, and was "clearly capable of producing an unjust result." R. 2:10-2.
Fourth, Lewis cites part of the court's charge on aggravated sexual assault with a victim less than thirteen: "We say that a person acts knowingly if he acts with an understanding of what it is that he is doing or she is doing and with an appreciation of the consequences." However, Lewis cannot show plain error because the court's definition is more favorable to defendants than the model instruction's explanation of "knowingly," which only requires awareness of "a high probability" that the circumstances exist. Model Jury Charge (Criminal), "Aggravated Sexual Assault - Victim Less Than 13" (2005).
Lewis also cites part of the court's instruction on sexual assault: "The word intentionally as used in the statute is synonymous with the word purposefully. A person acts intentionally if he acts with a purpose to do something, a resolution to do a particular act or accomplish a certain goal." Melia objected to this language, and Lewis joined in the objection. Nonetheless, any error was harmless, R. 2:10-2, because nothing in this definition is less favorable to defendants than the model instruction's explanation. Model Jury Charge (Criminal), "Sexual Assault - Victim at Least 13 but Less Than 16" (2008).
Our determination that Lewis was not prejudiced is based in part on the nature of the crimes and defenses. Aggravated sexual assault, sexual assault, and the other charged acts of sexual penetration, sexual contact, and sexual conduct, are not likely to be committed unknowingly or unintentionally. Indeed, Lewis's defense was not that she did the charged acts unknowingly or unintentionally. Rather, she claimed she did not do the charged acts. In the case of the O.C. videos, Lewis's defense was that the charged acts were voluntary and consensual.
The State is not required to prove that defendants knew the ages of their victims, State v. Perez, 177 N.J. 540, 555 (2003); N.J.S.A. 2C:14-5(c), or that they knew their sexual conduct would debauch the morals of a child, State v. Bryant, 419 N.J. Super. 15, 27-28 (App. Div. 2011). --------
Even though we do not find an error "clearly capable of producing an unjust result," R. 2:10-2, we do not approve of the trial judge's definitions for "knowingly" or "intentionally," which use language with no obvious origin in statutory or case law. The Legislature defined "knowingly" and "purposefully," N.J.S.A. 2C:2-2(b)(1)-(2), and its definitions are reflected in the model instructions. The trial judge's definitions attempted a well-intentioned simplification that was neither needed nor desirable.
Fifth, Lewis notes the trial court provided the jury with a written outline stating: "A person is an 'ACCOMPLICE' of another person in the commission of a Crime, if, with the purpose of promoting or facilitating the commission of the crime, he aids, agrees to aid or attempts to aid another person in planning or committing it." That sentence is taken almost verbatim from Model Jury Charge (Criminal), "Liability For Another's Conduct" (1995). Lewis complains the outline did not explicitly state that the State must prove an accomplice "possessed the [same] criminal state of mind that is required to be proved against the person who actually committed the criminal act." Ibid. However, the criminal court twice gave such an instruction to the jury in its oral charge, which included almost the entire model instruction. "We presume the jury followed the court's instructions." Smith, supra, 212 N.J. at 409.
In any event, neither defendant objected to the court's proposed outline. See R. 1:8-8(a) (2006) (allowing a court to submit a copy of part of its instructions to the jury). Moreover, the court made clear to the jurors: "the outline is only to assist you in recalling the elements of each crime charged"; the court was not "highlighting that aspect of its instructions"; and "all of the instructions are of equal importance [including] instructions concerning the presumption of innocence, the burden of proof and the standard of proof which is beyond a reasonable doubt." Thus, the court made clear the outline did not supersede the court's complete oral charge. See State v. Gandhi, 201 N.J. 161, 195-98 (2010) (omission of an element on the verdict sheet was not prejudicial where "the oral instructions of a court were sufficient to convey an understanding of the elements to the jury").
However, we note the Supreme Court recently amended the rules to require criminal trial judges to generally supply the jury with written copies of the complete jury instructions. R. 1:8-8(b)(2) (eff. Jan. 1, 2014); see Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 1:8-8(b) (2015). Moreover, like the Supreme Court, we "remind our trial courts that, insofar as consistent with and modified to meet the facts adduced at trial, model jury charges should be followed and read in their entirety to the jury." State v. R.B., 183 N.J. 308, 325 (2005). "The process by which model jury charges are adopted in this State is comprehensive and thorough; our model jury charges are reviewed and refined by experienced jurists and lawyers." Ibid. "We find, however, that the jury charge given here, although somewhat different from the model charge," was not plain error. See ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION