Argued: October 15, 2014.
Approved for Publication April 28, 2015.
[Copyrighted Material Omitted]
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-04-0765.
Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant ( Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Heinzel, of counsel and on the briefs).
David W. Fassett argued the cause for respondent ( Arseneault & Fassett, LLP, and Weir & Plaza, LLC, attorneys; Mr. Fassett and Edward J. Plaza, on the brief).
Before Judges LIHOTZ, ESPINOSA and ROTHSTADT. The opinion of the court was delivered by ESPINOSA, J.A.D.
[440 N.J.Super. 437] ESPINOSA, J.A.D.
The facts and issues in this case call upon us to examine the application of the Supreme Court's decisions in State v. Sugar (Sugar I), 84 N.J. 1, 417 A.2d 474 (1980), and State v. Sugar (Sugar II), 100 N.J. 214, 495 A.2d 90 (1985). As in Sugar, the police surreptitiously recorded conversations between a defendant [440 N.J.Super. 438] and his attorney. There are, however, significant factual differences in the two cases. In Sugar, police eavesdropped upon the conversations and used the information obtained to secure search warrants that resulted in the seizure of incriminating evidence and the filing of charges against the defendant. Sugar I, supra, 84 N.J. at 5-8, 417 A.2d 474. In this case, the tape recording occurred after charges had been filed when defendant appeared with his attorney to surrender. This was the day after a witness reported defendant had fired a gun at her, a search warrant was issued, and officers executing the warrant at defendant's residence observed a bullet hole in the wall and seized a gun and shell casing. An additional fact that distinguishes this case from Sugar is that the State maintains that no officer listened to the confidential conversation as it was being recorded.
Defendant successfully moved to suppress the testimony of three witnesses and dismiss the indictment against him, albeit without prejudice. After we denied the State's motion for leave to appeal, the Supreme Court granted the State's motion, summarily remanding the matter to this court for consideration on the merits. For the following reasons, we affirm the suppression of the three witnesses' testimony and reverse the dismissal of the indictment.
We begin with a review of the facts and reasoning of Sugar I and Sugar II, which concerned the prosecution of Harry D. Sugar for the murder of his wife. The issue concerning the " flagrantly illegal conduct" of the law enforcement officers, Sugar I, supra, 84 N.J. at 5, 417 A.2d 474, arose before Sugar was indicted. Not only
did law enforcement officers intentionally eavesdrop on conversations between Sugar and his attorneys, they used the information obtained as the basis for search warrant affidavits. Id. at 7, 417 A.2d 474. Sugar's right to a fair trial was further threatened by the dissemination of his privileged statements to the public. Id. at 9, 417 A.2d 474.
[440 N.J.Super. 439] Sugar was arrested on a material witness warrant shortly after midnight on August 7, 1979. Id. at 5, 417 A.2d 474. He had two meetings with counsel that morning. The first was with a law firm associate at approximately 2:40 a.m., and the second was with his attorney, Jay H. Greenblatt, later that morning. Id. at 5-6, 417 A.2d 474. Each of the meetings occurred in an interrogation room with a concealed microphone. Ibid.
When Sugar's meeting with the law firm associate commenced, Lieutenant Michael Joseph Tirelli of the Vineland Police Department went into his office with Joseph Leon Soracco, Chief of Detectives, of the Cumberland County Prosecutor's Office. Id. at 6, 417 A.2d 474. Tirelli activated a monitor in his office that permitted them to listen to the conversation between Sugar and his attorney, telling Soracco, " it would be a good idea to know if we had a [sic] right guy or not." Ibid. He also recorded part of the conversation. Ibid.
At the second meeting, Sugar met with both Greenblatt and his associate in the same interrogation room. Ibid. Once again, Tirelli activated the monitor in his office and recorded the conversation. In addition to Tirelli and Soracco, Lieutenant Guy Buscemi and Detective John Mazzeo eavesdropped upon the conversation. Id. at 6-7, 417 A.2d 474. Tirelli instructed Mazzeo to take notes and prepare criminal complaints against Sugar. Id. at 7, 417 A.2d 474. Tirelli summarized the eavesdropped conversations for Detective William L. Walters, who was drafting affidavits for a search warrant for Sugar's home. Id. at 6-7, 417 A.2d 474.
Greenblatt's associate accompanied the officers in the search of Sugar's home, and later advised Greenblatt they " had demonstrated an uncanny ability to locate what they were seeking quickly." Id. at 7, 417 A.2d 474. Although the fact of the illegal eavesdropping had been disclosed to the Cumberland County Prosecutor, no one advised Greenblatt that police officers had eavesdropped [440 N.J.Super. 440] and recorded his conversation with his client. Id. at 7-8, 417 A.2d 474. As additional search warrants were obtained and executed, Greenblatt began to suspect the police had eavesdropped upon his interview with his client, a suspicion confirmed by an anonymous caller. Id. at 8, 417 A.2d 474. Greenblatt contacted the Division of Criminal Justice in the Attorney General's Office and, after the eavesdropping was confirmed, the criminal prosecution was assumed by the State. Ibid.
The harm caused was not limited to the police officers' intrusion into the attorney-client relationship. Accounts of the eavesdropping made their way into two newspapers and " detailed descriptions of [Sugar's] conversations circulated" in Vineland. Id. at 9, 417 A.2d 474.
Sugar's constitutional claims were based upon the guarantees provided by the Sixth Amendment of the United States Constitution and article I, paragraph 10 of the New Jersey Constitution, which " establish a defendant's right to the assistance of counsel in criminal prosecutions." Sugar I, supra, 84 N.J. at 15-16, 417 A.2d 474. The Court stated there were two possible ways in
which the illegal eavesdropping could " irreparably compromise" the ability of Sugar's attorney to be effective:
The first is that official knowledge of the contents of the overheard conversation would prevent defendant's counsel from constructing and presenting an adequate defense. The second potential source of impairment arises from public knowledge of the interview between defendant and his attorneys.
[ Id. at 17, 417 A.2d 474.]
The Court focused on the first of these potential sources of impairment. Id. at 18, 417 A.2d 474.
In Weatherford v. Bursey, 429 U.S. 545, 552-54, 97 S.Ct. 837, 842-43, 51 L.Ed.2d 30, 38-39 (1977), the United States Supreme Court declined to adopt a per se rule that every intrusion into [440 N.J.Super. 441] attorney-client consultations constituted a violation of the Sixth Amendment warranting reversal of a conviction. Our Supreme Court agreed, stating: " Not every intrusion into the attorney-client relationship results in a denial of the right to effective assistance of counsel." Sugar I, supra, 84 N.J. at 18, 417 A.2d 474. The Court adopted the principle that dismissal of a prosecution based upon the denial of effective assistance of counsel " is the appropriate remedy for official intrusion upon attorney-client relationships only where it destroys that relationship or reveals defendant's trial strategy." Id. at 21, 417 A.2d 474. The Court concluded neither occurred in Sugar I. Id. at 21-22, 417 A.2d 474.
Nonetheless, the Court stated the role of law enforcement officers in the intrusion raised the question of whether a dismissal might be required as a matter of fundamental fairness even in the absence of a Sixth Amendment violation. Id. at 14-15, 417 A.2d 474. Under such circumstances, the prosecution might proceed if " carefully purged of all taint from investigatory excess." Id. at 15, 417 A.2d 474. To be effective, the exclusionary remedy had to " vindicate defendant's constitutional rights and deter future incidents of such egregious conduct." Id. at 25, 417 A.2d 474.
Noting the role of law enforcement officers in the egregious conduct, the Court dictated the following remedy:
We find that under the circumstances of this case, the only appropriate remedy is exclusion of tainted witnesses and evidence from the grand jury and at trial. Because the violation of the right to the effective assistance of counsel was so serious, and because the guarantee of a fair trial has been so threatened by the insolence of local law enforcement officers, the fruits of their lawlessness must not be allowed to aid a prosecution in any manner. . . . To permit the State to proceed before the grand jury with illegally obtained evidence would expose defendant to the threat of a tainted and compromised prosecution. It would fail to deter those who would seek the publicity of an indictment even if a subsequent trial would fail for lack of untainted evidence. . . . [The grand jury] may not receive evidence obtained in blatant violation of the federal and State constitutions, [ U.S. Const., amends. IV, VI; N.J. Const. art. I, ¶ ¶ . 7, 10], and State law proscribing illegal electronic surveillance, N.J.S.A. 2A:156A-3, -21.
Accordingly, we hold that a threshold hearing to determine the extent of taint should
take place before the grand jury begins to receive evidence.
[ Id. at 25-26, 417 A.2d 474 (emphasis added) (internal citations omitted).]
[440 N.J.Super. 442] At the hearing that followed Sugar I, the trial court determined the only witness who had to be excluded in the grand jury proceedings and at trial was Tirelli. Sugar II, supra, 100 N.J. at 225-26, 495 A.2d 90. The Court reviewed that decision in Sugar II.
The Court observed that because its earlier decision addressed taint arising from two different sources -- either exposure to the publicity about the eavesdropped conversations or participating in the eavesdropping - there was a need to clarify the scope of disqualification for witnesses tainted by the illegal conduct. Id. at ...