STATE OF NEW JERSEY VS. LYNDA STAMBAUGH-LUPO(13-04-0169, SOMERSET COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0076-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LYNDA STAMBAUGH-LUPO,
Defendant-Appellant.
_______________________________________________
Argued September 18, 2017 – Decided October 26, 2017
Before Judges Messano and Accurso.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Indictment No. 13-04-0169.
Michael Confusione argued the cause for
appellant (Hegge & Confusione, LLC, attorneys;
Mr. Confusione, of counsel and on the briefs).
Paul H. Heinzel, Assistant Prosecutor, argued
the cause for respondent (Michael H.
Robertson, Somerset County Prosecutor,
attorney; Mr. Heinzel, of counsel and on the
brief).
PER CURIAM
A jury convicted defendant Linda Stambaugh Lupo of third-
degree theft, N.J.S.A. 2C:20-3(a). Defendant moved for a new
trial based on "newly discovered evidence," claiming police
intentionally accessed email stored on her family's cellphones and
other electronic devices during trial, including emails between
her and her attorney, in violation of the Sixth Amendment. The
judge denied the motion after conducting an evidentiary hearing,
and sentenced defendant to a suspended 364-day term in the county
jail, a four-year term of probation, $500 restitution and
appropriate financial penalties.
On appeal, defendant presents the following points for our
consideration.
POINT 1
THE TRIAL COURT ERRED IN ADMITTING INTO
EVIDENCE BEFORE THE JURY THE ALLEGED STOLEN
ITEMS BECAUSE OF A GLARING LACK OF CHAIN OF
CUSTODY, WARRANTING REVERSAL AND REMAND FOR A
NEW TRIAL ON THE THEFT CHARGE.
POINT 2
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR, AT LEAST, A NEW TRIAL, IN LIGHT
OF DETECTIVE TAYLOR'S ARREST OF DEFENDANT IN
THE MIDDLE OF TRIAL – THE NIGHT BEFORE SHE WAS
TO TESTIFY, AND ON [THE] GROUND THAT THE
PROSECUTION INVADED ATTORNEY-CLIENT
PRIVILEGED EMAILS AND OTHER ELECTRONIC
COMMUNICATIONS BETWEEN DEFENDANT AND HER TRIAL
COUNSEL.
Having considered these arguments in light of the record and
applicable legal standards, we affirm.
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I.
From 2009 to 2012, defendant provided in-home medical therapy
to the victim, whose husband was a retired major league baseball
player. These treatments were performed several days per week for
several hours at a time in the basement of the victim's home,
during which defendant would sometimes be left alone while the
victim went upstairs to her bedroom to shower. When her husband
became ill, the victim suspended the treatments to help care for
him, but, by January 2013, her family contacted defendant to resume
the treatments. The victim's husband passed away on January 29,
2013, and defendant began treating the victim again two days later.
The victim, however, noticed some unusual circumstances. For
example, defendant suggested the therapy take place in the victim's
bedroom, which had never occurred before. While the victim
showered in the bedroom's bath, she could hear the alarm signal
several times that the front door opened; yet, no one was in the
house except defendant. On another occasion, the victim emerged
from the shower to find defendant standing on the side of the bed
opposite where the therapy was taking place.
The victim intended to inter her husband with some jewelry
of special significance. On February 4, she and other family
members searched in vain for the jewelry box where her husband
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kept these pieces. Unable to find it, the victim called the
police.
Police arrived at the victim's home on February 5 and spoke
to her regarding what items were missing and who had access to her
bedroom. Defendant was also there and agreed to accompany police
to the station, where she provided a taped statement that was
played for the jury. Although defendant originally denied taking
anything, she ultimately admitted that the victim's jewelry was
in a plastic supermarket bag in defendant's home. Detectives
pressed for details as to how much jewelry she took, but defendant
stated, "I honestly don't know[.] I didn't look, I honestly didn't
look[.] I haven't had a chance to do anything . . . . I just put
it into the bag."
Police secured a search warrant for defendant's home and
found the bag as described in the "mudroom." It contained some
jewelry engraved with the deceased husband's initials and a
department store receipt with the victim's name. Police found
more than two hundred pieces of jewelry throughout the house, some
in Ziploc bags, and they found sports memorabilia, including a
glove and a baseball signed by Hank Aaron, in the basement.
Police seized approximately one hundred pieces of jewelry and
the baseball glove and autographed ball, which the lead detective
placed in the trunk of his car and took to police headquarters.
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Without inventorying the evidence, he locked it in one of the
interview rooms, for which he had the only key. Police initially
permitted the victim and her niece to enter the interview room
without accompaniment to look through the seized items. The victim
later identified the items and provided details about some of the
jewelry to police, who documented her identification and
photographed the items.
Police permitted the victim to take the identified items and
baseball memorabilia home and returned the unidentified items to
defendant. Some weeks later, the victim supplied police with a
list of other items that she could not locate in her home. The
State argued that defendant was also responsible for the theft of
these items.
Sometime before trial, police went to the victim's home, to
take the jewelry for professional appraisal and to permit
defendant's inspection of the baseball and glove. A few days
later, the victim called police and told them the glove she had
given them was not the same one she identified at police
headquarters months earlier. The State notified defendant of the
mistake.
At trial, the victim identified and provided details as to
when she had last seen some of the seized items prior to February
4, 2013. The prosecutor posed no questions about the autographed
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baseball during direct examination of the victim, however, on
cross-examination, it became apparent that the victim had supplied
a different baseball to police. Although the State agreed it
would not offer the baseball in evidence, the judge held an
N.J.R.E. 104 hearing at defendant's request outside the presence
of the jury. The victim explained the reason for her mistake.
The lead detective testified that he picked up the jewelry
from the victim for appraisal but did not inventory the items
before securing them in a locker at police headquarters. He then
left for vacation and another detective actually took the jewelry
for appraisal.
At the end of the State's case, defendant objected to the
admission of the jewelry in evidence, but not the baseball glove;
the State did not seek to admit the autographed baseball. Although
she expressed concerns about the chain of custody, the judge
ultimately decided to admit the evidence. Citing in particular
our decision in State v. Brown, 99 N.J. Super. 22 (App. Div.),
certif. denied, 51 N.J. 468 (1968), the judge concluded any defects
in the chain of custody did not affect admissibility but only the
jury's evaluation of the weight of the evidence.
Defendant elected not to testify, but her husband did. He
was home when police executed the search warrant. He identified
photos of a baseball autographed by Hank Aaron that he purchased
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on Ebay and displayed in his home. He also identified a photo of
a baseball glove that he purchased for his son. Additionally,
defendant's husband described an ongoing in-home business that the
couple conducted that included the purchase of jewelry and other
items for resale. He claimed defendant kept some of these items
in bags in the mudroom and around the house.
In summation, defense counsel argued that the baseball glove
was too small to fit a major league ballplayer and surmised it was
defendant's son's. He urged the male jurors to try the glove on
and see if it felt like one "worn by a professional baseball
player." He also vigorously attacked the chain of custody for all
the evidence, implying that most of the items were not the
victim's, and suggesting that someone else must be responsible for
having stolen the missing items that police never recovered. He
highlighted the appraised value of the jewelry actually recovered,
which was less than $500.
In Point I, defendant contends the admission in evidence of
the jewelry and baseball glove was reversible error because "there
was not just a 'defect' in the chain of custody but a complete
absence of foundation and no showing of uninterrupted chain of
custody . . . as required by New Jersey law." We disagree.
"[A] trial court's evidentiary rulings are entitled to
deference absent a showing of an abuse of discretion, i.e., there
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has been a clear error of judgment." State v. Nantambu, 221 N.J.
390, 402 (2015) (quoting State v. Harris, 209 N.J. 431, 439
(2012)). "The requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter is what its
proponent claims." N.J.R.E. 901.
"The determination of whether the State sufficiently
established the chain of custody is within the discretion of the
trial court." State v. Mosner, 407 N.J. Super. 40, 62 (App. Div.
2009); see also Brown, supra, 99 N.J. Super. at 27 ("Whether the
requisite chain of possession has been sufficiently established
to justify admission of the exhibit is a matter committed to the
discretion of the trial judge, and his determination will not be
overturned in the absence of a clearly mistaken exercise
thereof."). Generally speaking, the proponent of the evidence
must show an uninterrupted chain of custody. Mosner, supra, 407
N.J. Super. at 62.
Nonetheless, "the State is not obligated to negate every
possibility of substitution or change in condition of the
evidence." State v. Brunson, 132 N.J. 377, 393 (1993). The
evidence will usually be admitted "if the court finds in reasonable
probability that the evidence has not been changed in important
respects or is in substantially the same condition as when the
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crime was committed." Mosner, supra, 407 N.J. Super. at 62(citations omitted). Defects in the chain do not negate
admissibility but go instead to the weight of the evidence. Ibid.(citing State v. Morton, 155 N.J. 383, 446 (1998), cert. denied,
532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)).
Here, defendant argues there were breaks in the chain of
custody when police left the victim and her niece in the
interrogation room alone with the jewelry, when they returned
items to the victim's possession and when the lead detective left
items in police headquarters without documentation and another
detective took them for appraisal. The victim, however, identified
photographs of the jewelry taken after she identified the pieces
at police headquarters and before the items were returned, and she
identified specific items shown to her at trial which were in
those photos.
"When an item of evidence is not fungible but is instead
easily identifiable, no chain of custody issue is presented."
Biunno, Weisbard & Zegas, Current N.J. Rules of Evidence, comment
2 on N.J.R.E. 901 (2017) (citing State v. B.H., 290 N.J. Super.
588, 595 (App. Div. 1996), rev'd in part on other grounds sub
nom., State v. Hoffman, 149 N.J. 564 (1997)). In other words,
defendant never claimed the nature or character of the evidence
was altered between when it was seized and when it was introduced
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at trial. Mosner, supra, 407 N.J. Super. at 62. Rather, she
claimed the actual items of jewelry were either never stolen from
the victim or never recovered in defendant's home. Simply put,
the argument made at trial had little to do with admissibility of
the jewelry and everything to do, as the trial judge noted, with
the persuasive weight of the State's evidence. We find no mistaken
exercise of the judge's discretion.1
II.
As noted, after the verdict defendant moved for a new trial.
We provide some additional background.
When defendant was arrested and released on bail, the judge
imposed a condition forbidding any contact with the victim. During
trial, the victim's daughter reported to police that she observed
defendant drive by the home and use her cellphone apparently to
take photographs. The trial judge issued an arrest warrant
charging defendant with contempt, N.J.S.A. 2C:29-9(a), and a
different judge approved the State's application for a search
warrant to "seize from [defendant's] residence . . . any and all
cameras, cell phones, thumb drives and recording devices."
1
Defendant did not object to the admission of the baseball glove
into evidence and, as noted, defense counsel used the glove as an
exhibit in urging her acquittal. Its admission was not error,
much less plain error. See R. 2:10-2 ("Any error or omission
shall be disregarded by the appellate court unless it is of such
a nature as to have been clearly capable of producing an unjust
result[.]").
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Defendant was arrested the night before the last day of testimony
at trial. Police seized various cell phones and electronic devices
from her home.
The trial judge arraigned defendant on the contempt charge
the next day. After defendant's husband testified but before the
defense rested, the judge conducted a thorough voir dire regarding
defendant's election not to testify. Among other things, defendant
stated she had discussed her options with counsel, was voluntarily
deciding not to testify and was not under the influence of any
drugs or alcohol.
Several weeks after the jury returned its verdict, defendant
moved for a new trial. Defendant's husband certified he obtained
information that e-mail communications on his and defendant's
electronic devices, which included attorney-client communications,
"had been invaded" by an outside IP address while the devices were
in police custody. The judge permitted the State's and defendant's
experts to access metadata from the devices and subsequently held
an evidentiary hearing on the issue. Both experts testified.
After reviewing the party's submissions and testimony, the
judge denied defendant's motion and issued an order and written
decision on March 9, 2016. She found the State's expert to be
more credible, specifically rejecting defendant's expert's
assertion that members of the police force regularly and routinely
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accessed defendant's "phone at distinct intervals every 14 to 15
minutes 24/7."
In Point II, defendant argues her arrest during trial
infringed upon her right to testify, and she presented newly-
discovered evidence that the State accessed privileged attorney-
client communications in violation of her Sixth Amendment rights,
requiring a new trial. We find little merit to either contention.
Defense counsel filed a certification in support of the motion
for a new trial stating that defendant was highly agitated in
court the day after her arrest. The record belies this, both by
the absence of any contemporaneous statements made by defense
counsel indicating defendant's distress and by defendant's own
statements to the judge during the voir dire. The argument
warrants no further discussion. R. 2:11-3(e)(2).
A "judge . . . may grant the defendant a new trial if required
in the interest of justice." R. 3:20-1. "Rule 3:20-2 permits a
defendant to do so 'on the ground of newly-discovered evidence'
at any time." State v. Armour, 446 N.J. Super. 295, 305 (App.
Div. 2016).
To meet the standard for a new trial based on
newly discovered evidence, defendant must show
that the evidence is 1) material, and not
"merely" cumulative, impeaching, or
contradictory; 2) that the evidence was
discovered after completion of the trial and
was "not discoverable by reasonable diligence
beforehand"; and 3) that the evidence "would
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probably change the jury's verdict if a new
trial were granted."
[State v. Ways, 180 N.J. 171, 187 (2004)
(quoting State v. Carter, 85 N.J. 300, 314
(1981)).]
"[A] motion for a new trial is addressed to the sound discretion
of the trial judge, and the exercise of that discretion will not
be interfered with on appeal unless a clear abuse has been shown."
Armour, supra, 446 N.J. Super. at 306 (quoting State v. Russo, 333
N.J. Super. 119, 137 (App. Div. 2000) (alteration in original)).
Defendant's motion was not based upon newly-discovered
evidence in the traditional sense. She did not present newly
discovered, material evidence which, if admitted at trial, would
have probably altered the verdict. Rather, defendant's
allegations centered on alleged police misconduct that infringed
upon her Sixth Amendment rights. See, e.g., State v. Mazzarisi,
440 N.J. Super. 433, 444-446, 449 (App. Div. 2015) (considering
whether surreptitious recording of conversations between the
defendant and his attorney at police station was a violation of
the Sixth Amendment).
However, defendant ignores the judge's rejection of the
essential premise of her argument. After listening to the
testimony and assessing the credibility of the experts, the judge
concluded that police had never accessed defendant's electronic
devices in the first instance. We defer to the judges factual
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findings because they are "supported by sufficient credible
evidence in the record." State v. Elders, 192 N.J. 224, 243
(2007).
Affirmed.
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