On certification to the Superior Court, Appellate Division, whose opinion is reported at 349 N.J. Super. 332 (2002).
There are two issues in this appeal. First, whether defendant's right to due process was violated when he received notice of a domestic violence complaint less than twenty-four hours before trial and when a finding of domestic violence was based on an allegation that was not contained in the complaint. Second, the Court is presented with the novel issue of whether video surveillance by one spouse of the other spouse's bedroom can constitute one of the predicate offenses of domestic violence.
Plaintiff and defendant had been married for eighteen years at the commencement of the underlying litigation. Plaintiff and defendant occupied separate bedrooms in the marital residence since November 1999. Plaintiff filed for divorce in June 2000. On August 21, 2000, defendant filed a domestic violence complaint against plaintiff. That complaint was ultimately dismissed and is not before this Court. On August 22, 2000, plaintiff filed a separate domestic violence complaint against defendant. The complaint, consistent with the pre-printed domestic violence complaint form, alleged "Terroristic Threats." On the complaint form, neither "Harassment," "Stalking," nor any other predicate offense of domestic violence was checked. On August 23, 2000, defendant was served with plaintiff's complaint and TRO. Also on that date, a court clerk contacted defendant by telephone to schedule both domestic violent complaints for the following day, August 24, 2000. Defendant agreed to have the matters heard on that date. On August 24, 2000, defense counsel requested a continuance. That motion was denied.
The court proceeded to take testimony. Plaintiff testified as to the alleged terroristic threats to herself and her family. Over defense counsel's objection, the court proceeded to take additional testimony from plaintiff about prior acts of domestic violence, including the video surveillance involved in this appeal. Plaintiff testified that she discovered a "microchip" camera and microphone hidden in a picture in her bedroom. Plaintiff further testified that upon finding the equipment, she realized how defendant seemed to know details about her daily activities and testified that she was "devastated" by the discovery and "terrified" of defendant. During cross-examination, and in response to the question as to why she did not specify the prior incidents of domestic violence in the complaint, plaintiff testified that she included them in the Victim Information Sheet. Apparently, that sheet was neither served on defendant nor introduced into evidence.
Defendant objected to having to defend against charges of domestic violence that were not included in the complaint and of which he had no notice. The trial court did not see any reason to exclude the testimony, but allowed a continuance until the next day. The next day, defendant requested a second continuance, arguing that he needed more time to prepare his case. The court denied the continuance. Defendant presented only one witness, a private investigator, most of whose testimony was excluded for hearsay reasons.
The trial court held that defendant had received due process, that he had committed both harassment in violation of N.J.S.A. 2C:33-4 and stalking in violation of N.J.S.A. 2C:12-10, and issued a final restraining order (FRO) against defendant. The Appellate Division agreed that defendant's due process rights had not been violated, and concluded that the surveillance constituted stalking but not harassment. In addition, the Appellate Division concluded that court personnel, rather than plaintiff, were to blame for exclusion from the complaint of the hidden microphone and camera, that neither plaintiff nor defendant should suffer from such administrative failure, and that domestic violence intake workers should take steps to ensure proper notice to future defendants.
The Supreme Court granted defendant's petition for certification.
HELD: The trial procedures violated defendant's right to due process. Defendant's conduct can constitute both stalking and harassment, predicate offenses of domestic violence. The matter is remanded to the trial court for new proceedings on the final restraining order (FRO).
1. The Fourteenth Amendment of the United States Constitution and Article I, Paragraph 1 of the New Jersey Constitution both ensure due process protection. At a minimum, due process requires that a party in a judicial hearing receive "notice defining the issues and an adequate opportunity to prepare and respond." McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559 (1993) (citing Nicoletta, supra, 77 N.J. at 162). The Appellate Division has held that it is "clearly improper" for the trial court to find that a defendant had committed domestic violence by relying on a prior course of conduct not mentioned in the complaint. Moreover, to the extent that compliance with the Domestic Violence Act ten-day provision precludes meaningful notice and an opportunity to defend, that provision must yield to due process requirements. In the underlying case, defendant did not have adequate time for preparation and an adjournment would not have adversely affected plaintiff because the TRO would have remained in place until the hearing. Further, the trial court violated defendant's due process rights by granting an FRO based on allegations not contained in the complaint. Also, although it is questionable whether defendant would have been able to exonerate himself from responsibility for installing the microphone and camera in his wife's bedroom and connecting them to a VCR in his bedroom, enforcement of due process does not depend on guilt or innocence. (Pp. 11-18)
2. The Appellate Division failed to consider defendant's behavior that went beyond merely observing his wife in her bedroom. Plaintiff testified that defendant's conduct made her feel as though he "knew [her] every move, [her] every step." In addition, the parties' past history, when properly presented, helps to inform the court regarding defendant's purpose, motive, and intended use of information obtained through the video and audio surveillance of plaintiff's private acts and conversations in her bedroom. Under the totality of the circumstances and viewing the evidence presented in a light most favorable to plaintiff, a prima facie case of harassment was established. (Pp. 18- 21)
3. Surveillance by a spouse in the marital home, the lack of actual violence notwithstanding, may constitute stalking, a predicate offense of domestic violence. The elements of stalking are that: 1) defendant engaged in speech or conduct that was directed at or toward a person, 2) that speech or conduct occurred on at least two occasions, 3) defendant purposely engaged in speech or a course of conduct that is capable of causing a reasonable person to fear for herself or her immediate family bodily injury or death, and 4) defendant knowingly, recklessly or negligently caused a reasonable fear of bodily injury or death. Defendant's course of conduct, when viewed in the context of the totality of the circumstances and the parties' history, including physical threats of bodily harm to plaintiff and her family, and the feeling of helplessness and inability to escape defendant attested to by plaintiff, coupled with defendant's harassment of plaintiff, is the sort of behavior that New Jersey's anti-stalking statute was designed to prevent. (Pp. 21-26)
4. Defendant's audio surveillance of plaintiff with the microphone component of the camera may violate New Jersey's wiretap statute. An unfavorable inference should not be drawn against defendant if he elects not to testify on the remand. (Pp. 26-27)
The judgment of the Appellate Division with respect to due process violations and harassment is REVERSED. Its judgment finding that defendant's conduct may constitute stalking is AFFIRMED. The matter is REMANDED to the trial court for new proceedings on the FRO consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in Justice COLEMAN's opinion.
The opinion of the court was delivered by: Coleman, J.
This case requires us to address procedural and substantive issues concerning New Jersey's Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Procedurally, the issues presented are whether defendant's right to due process was violated when he received notice of a domestic violence complaint less than twenty-four hours before trial and when a finding of domestic violence was based on an allegation that was not contained in the complaint. We also must address the novel issue of whether video surveillance by one spouse of the other spouse's bedroom can constitute one of the predicate offenses of domestic violence. The trial court held that defendant had received due process, and that he had committed both harassment in violation of N.J.S.A. 2C:33-4 and stalking in violation of N.J.S.A. 2C:12-10. The Appellate Division agreed that defendant's due process rights had not been violated, but concluded that the surveillance constituted stalking but not harassment. We reverse and hold that the trial procedures violated defendant's right to due process.
We agree with the trial court that the conduct complained of can constitute both stalking and harassment.
When this litigation began in August 2000, plaintiff H.E.S. and her husband, defendant J.C.S., had been married for eighteen years. Although they lived in the same house with their two daughters, defendant had occupied a separate bedroom since November 1999. Plaintiff had filed for divorce in June 2000 but defendant may not have been served until August 2000.
Between August 17 and 19, 2000, plaintiff and defendant engaged in numerous altercations resulting in both parties filing domestic violence complaints. On August 21, 2000, defendant filed a domestic violence complaint against plaintiff. The typed complaint specified the following acts allegedly were committed by plaintiff:
ON 8/17/00 DEF[ENDANT, H.E.S.] HAS HAD HER BROTHERS HARASSING AND STALKING PLA[INTIFF, J.C.S.] DUE TO SOME CHURCH PROBLEMS. DEF[ENDANT'S] BROTHERS ...