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State v. Thomas

Superior Court of New Jersey, Appellate Division

September 13, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
LEE DAWN TROUTWEIN THOMAS, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 26, 2013

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.

Before Judges Alvarez and Maven.

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 outgoing 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, ...


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