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STATE OF NEW JERSEY v. DENIS A. CATANIA, a/k/a DENNIS CATANIA
Date: 03-27-2017
Case Number: A-1757-13T3
Judge: Richard Nugent
Court: SUPERIOR COURT OF NEW JERSEY
Plaintiff's Attorney:
Steven A. Yomtov, Deputy Attorney General
Defendant's Attorney:
James K. Smith, Jr., Assistant Deputy Public Defender
Description:
MoreLaw Receptionist Services
On December 21, 2011, an Atlantic County grand jury returned
an indictment1 charging defendant Denis Catania, his girlfriend
Diana Camacho, and their friend Damien Leo2 with a number of
offenses including first-degree murder, first-degree conspiracy
to commit murder, and first-degree felony murder. Thereafter,
defendant and Camacho filed several joint motions. On June 13,
2012, the trial court denied their motion to dismiss the
indictment. On November 29, 2012, the court denied their motion
to suppress evidence seized from defendant's home pursuant to a
search warrant, and to exclude evidence concerning their flight
to Cuba after the police executed the search warrant.
On March 20, 2013, an Atlantic County grand jury returned a
thirteen-count superseding indictment3 charging defendant with
first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count
one); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2
and N.J.S.A. 2C:11-3(a)(1) and/or (a)(2) (count two); two counts
1 Indictment No. 11-12-3059.
2 On May 3, 2012, Leo pled guilty to an amended charge of seconddegree aggravated manslaughter and, as part of his plea agreement, he agreed to give truthful testimony if called as a witness at defendant's and Camacho's trial. After the charges against defendant and Camacho were resolved, the trial court sentenced Leo to eight years in prison, subject to the 85% parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:437.2.
3 Indictment No. 13-03-0859.
3 A-1757-13T3
of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and (b)(2)
(counts three and four); second-degree conspiracy to commit
kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1(b)(1) and/or
(b)(2) (count five); two counts of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3) (counts six and seven); second-degree
aggravated arson, N.J.S.A. 2C:17-1(a) (count eight); second-degree
conspiracy to commit aggravated arson, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:17-1(a) (count nine); fourth-degree tampering with
physical evidence, N.J.S.A. 2C:28-6(1) (count ten); third-degree
hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count eleven);
second-degree desecration of human remains, N.J.S.A. 2C:22-1(a)(2)
(count twelve); and third-degree possession of a weapon (a starters
pistol), N.J.S.A. 2C:39-4(d) (count thirteen).4
On June 27, 2013, the trial court denied defendant's and
Camacho's motions to dismiss the superseding indictment. On July
11, 2013, the court granted the State's motion to admit evidence
of defendant's prior bad acts at trial pursuant to N.J.R.E. 404(b).
On July 11, 2013, defendant pled guilty to one count of first
degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a
lesser-included offense of first-degree murder under count one.
In return for defendant's guilty plea, the State agreed to
4 Camacho was named as a co-defendant in counts one through twelve of the indictment.
4 A-1757-13T3
recommend that the trial court impose a custodial sentence between
twenty-two and twenty-five years, subject to NERA, and a five-year
period of parole supervision upon release. The State also agreed
to dismiss the remaining charges against defendant.
On August 22, 2013, the trial judge sentenced defendant to
twenty-five years in prison, subject to NERA, with a five-year
period of parole supervision. The judge ordered defendant to pay
the victim's family $2500 as restitution to cover "the damage to
the victim[']s vehicle." The judge also imposed appropriate fines
and penalties.5 This appeal followed.
On appeal, defendant through counsel raises the following
issues:
POINT I
THE DEFENDANT'S FOURTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE POLICE SEIZED HIS HOUSE WITHOUT PROBABLE CAUSE OR EXIGENT CIRCUMSTANCES AND HELD IT FOR SEVEN HOURS UNTIL A WARRANT WAS FINALLY OBTAINED.
A. Defendant Has Standing To Challenge The Seizure of His Residence In Florida.
B. The Burden Of Proof Is On The State To Justify The Warrantless Seizure Of Defendant's House.
5 On July 8, 2013, Camacho pled guilty to first-degree conspiracy to commit murder and, pursuant to her plea agreement, the trial judge sentenced her on August 22, 2013 as a second-degree offender to nine years in prison, subject to NERA, with a five-year period of parole supervision upon release.
5 A-1757-13T3
C. The Police Violated Defendant's Fourth Amendment Rights By Following Defendant To His Bedroom And Conducting A Protective Sweep Of His House Without Any Reason To Believe That There Were Weapons Or Other Persons Present Who Might Endanger Them.
D. Because The Police Had Neither Probable Cause Nor Exigent Circumstances, The Seizure of Defendant's House Cannot Be Justified As Maintaining The Status Quo Prior To Obtaining A Warrant.
E. Because The Warrants Were Issued In Part Based Upon Information Learned During The Illegal Seizure Of Defendant's House, The Items Seized During the Warrant Searches Must Also Be Suppressed As Fruit Of The Poisonous Tree.
POINT II
THE CASE MUST BE REMANDED FOR RESENTENCING DUE TO THE SENTENCING COURT'S INCORRECT AND UNSUPPORTED FINDINGS ON AGGRAVATING AND MITIGATING FACTORS.
Defendant raises the following issues in his pro se
supplemental brief:
POINT I
THE DEFENDANT'S RIGHT TO INDICTMENT BY GRAND JURY AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPHS 1 AND 8 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DISMISS THE INDICTMENT DUE TO THE PROSECUTOR WITHHOLDING CLEARLY EXCULPATORY EVIDENCE FROM THE GRAND JURY AND MISREPRESENTING THE TRUTH TO BOLSTER ITS PRIMA FACIE CASE.
6 A-1757-13T3
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE [TRIAL] COURT'S DENIAL OF HIS MOTION TO BAR ANY ARGUMENT, TESTIMONY, AND EVIDENCE BY THE STATE ALLEGING FLIGHT AS DEFENDANT'S CONSCIOUSNESS OF GUILT.
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING THAT EVIDENCE OF THE ALLEGED AUGUST 23, 2010, INCIDENT INVOLVING THE DEFENDANT AND TIMOTHY ERWIN WAS ADMISSIBLE AS OTHER CRIME EVIDENCE UNDER N.J.R.E. 404(b).
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPHS 1 AND 7 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S DETERMINATION THAT FLORIDA LAW AND JURISPRUDENCE GOVERNED THE DISPOSITION OF HIS MOTION TO SUPPRESS EVIDENCE SEIZED IN FLORIDA BY THE JOINT OPERATIONS AND COOPERATIVE INVESTIGATIONS OF NEW JERSEY AND FLORIDA LAW ENFORCEMENT OFFICERS.
POINT V
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 7 OF THE
7 A-1757-13T3
NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE OF THE GPS DEVICE FROM THE PURSE/PERSON OF DIANA CAMACHO DURING THE SEARCH OF THE DEFENDANTS' MOTOR VEHICLES IN FLORIDA ON NOVEMBER 19[,] 2010.
POINT VI
THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND TO BE FREE FROM AN ILLEGAL SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPHS 1 AND 7 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE USE OF AN ILLEGALLY OBTAINED STATEMENT FROM THE DEFENDANTS' MINOR CHILD TO SUPPORT PROBABLE CAUSE TO SEARCH THE DEFENDANTS' VEHICLES AND SEIZE TWO GPS DEVICES.
After reviewing the record in light of the contentions
advanced on appeal, we affirm defendant's conviction and sentence.
I.
The State's theory underlying the superseding indictment was
that after defendant learned that Camacho was having an affair
with the victim, Ross Heimlich, he conspired with Camacho and Leo
to lure Heimlich to defendant's home where defendant killed the
victim. The State developed the following proofs in support of
its application for a search warrant to search defendant's home
in Florida, where he was residing after the murder.6
6 The trial court conducted a two-day evidentiary hearing on defendant's motion to suppress the evidence seized under the authority of the search warrant.
8 A-1757-13T3
At 3:19 a.m. on September 29, 2010, the Hammonton police and
fire departments responded to the scene of a reported vehicular
fire. They found a four-door car that was fully engulfed in
flames. After extinguishing the fire, the police found the charred
remains of a human in the back seat of the car. The body was so
badly burned that the police could not even determine the victim's
gender.
However, the police found the vehicle identification number
of the burned car and recovered its front license plate. With
this information, the police determined that Heimlich's
grandfather was the registered owner of the car. The police
contacted the grandfather, who told them that Heimlich lived with
him and his wife. The grandfather stated that he gave Heimlich
permission to use the car at approximately 8:00 p.m. on September
28, 2010. Heimlich "never returned home and was never heard from
again."
Heimlich's grandfather also told the police that Heimlich
used a cell phone, but had not returned the grandfather's calls.
Heimlich was enrolled at a community college, but had not gone to
class on September 29, 2010.
The police located video surveillance footage of the area
where the car was found from a security camera at a nearby gift
shop. The footage revealed that, at 2:53 a.m. on September 29,
9 A-1757-13T3
2010, Heimlich's car was driving east on the White Horse Pike
while being followed by an unidentified dark-colored vehicle. Both
cars made a right turn and then stopped. At 2:57 a.m., a bright
flash could be seen in Heimlich's car and it was quickly engulfed
in flames. The other car then left the scene.
Detective Joseph Rauch of the Atlantic County Prosecutor's
Office ("ACPO") was the lead investigator on the case. He tried
to call Heimlich's cell phone several times, but there was no
response and the voice mail system was full. On September 29,
2010, Detective Rauch obtained Heimlich's cell phone records for
the period between September 27 and September 29, 2010. The
detective found a series of calls and text messages exchanged on
September 28, 2010 "between Heimlich and person(s) believed to be
a female identified in one of the text messages only as 'Diana,'"
at a cell phone number ending in 4955.
The text messages were recovered, and Detective Rauch learned
that "Diana" arranged to meet with Heimlich on the evening of
September 28, 2010 "with the promise of a sexual encounter."
"Diana" told Heimlich to go to her house at 9:00 p.m. and she
would meet him when she returned from Philadelphia. "Diana" also
stated that she would call Heimlich when she was ten minutes away
from her home. Heimlich and "Diana" exchanged numerous calls and
text messages throughout the rest of the day.
10 A-1757-13T3
The last exchange occurred at 9:28 p.m. and lasted twenty
four seconds. According to "cell site information" Detective
Rauch obtained from the Heimlich's phone records, Heimlich's cell
phone was near defendant's and Diana Camacho's home in Voorhees
when this call occurred.
Other detectives interviewed one of Heimlich's friends, who
stated that he sent a text message to Heimlich at 7:45 p.m. on
September 28, 2010 to ask where he was. Heimlich responded that
he was in Voorhees. At 9:22 p.m. that evening, Heimlich called
the friend and said "he was pulling up outside 'the girl's' house."
The friend recalled that about a month earlier, Heimlich told him
that "he was having a sexual relationship with a married woman
whose husband was not around."
On September 30, 2010, Heimlich's aunt reported that Heimlich
"may have been having an affair with 'Diane Camacho,' a woman who
was possibly married." The aunt also stated that Camacho and
Heimlich were co-workers at a department store in Voorhees.
Other detectives spoke to the store's loss prevention
associate, who reported that Camacho had attempted to file a
criminal complaint against Heimlich on August 5, 2010. The
detectives obtained Camacho's complaint, which alleged that
Heimlich "sexually assaulted her numerous times at work and at her
residence and as a result she contracted a sexually[-]transmitted
11 A-1757-13T3
disease (STD)." On August 16, 2010, a Voorhees municipal court
judge dismissed Camacho's complaint after finding "there was
insufficient evidence to sustain the sexual assault charges."
The detectives interviewed another department store employee.
This employee stated that he had called and texted Camacho several
times in the past. The phone number the employee gave the police
for Camacho was not the 4955 number that "Diana" used to contact
Heimlich on September 28, 2010.
The employee told the detectives that, on August 23, 2010,
defendant came to the store and confronted him. Defendant stated,
"why did you text my girlfriend and propose to her? I have the
text [and] I will find you." The employee reported the matter to
the police, but refused to press charges against defendant.7
The store employee also told the police that Heimlich and
Camacho "advised him that they had been engaging in a sexual
relationship since approximately April of 2010." Camacho told the
employee "that her boyfriend was very controlling and jealous."
Camacho also stated that Heimlich gave her a STD "and that she in
turn gave the STD to her boyfriend." In addition, Camacho told
7 As noted above, the trial court later granted the State's motion to admit the employee's testimony at trial concerning defendant's threats to establish defendant's intent and motive pursuant to N.J.R.E. 404(b).
12 A-1757-13T3
the employee that her boyfriend drove a dark green four-door
Toyota, that was possibly a Camry.
The ACPO obtained Heimlich's computer from his residence. A
forensic examination of the device revealed that Heimlich and
Camacho had communicated with each other by computer.
Once defendant was identified as Camacho's boyfriend, the
police were able to locate a record of a 911 call that defendant
made on August 25, 2010 concerning a dispute he was having with a
moving company at his home. The number defendant used to call the
police on that date was not the 4955 number that "Diana" used on
September 28, 2010 to contact Heimlich.
On October 1, 2010, detectives went to defendant's and
Camacho's home in Voorhees and found that it was vacant. There
was a "for sale" sign on the lawn. The realtor advised a detective
that defendant had listed the house for sale about seven months
earlier. The realtor stated that defendant and his girlfriend had
moved to Florida.
Detective Rauch obtained defendant's cell phone and E-Z Pass
toll records, which disclosed that defendant had left New Jersey
on July 9, 2010 and arrived in Florida on July 19, 2010. Defendant
obtained a Florida driver's license on July 19, 2010 and now lived
at a home in Cape Coral. Further investigation revealed that on
13 A-1757-13T3
August 26, 2010, Camacho left New Jersey with her children and was
also living in Florida.
On October 5, 2010, ACPO Detective William Anton contacted
Special Agent Matthew Walsh of the Florida Department of Law
Enforcement seeking assistance in locating defendant and Camacho.
The next day, Agent Walsh went to defendant's home and found a
white Cadillac parked in front of the home. The ACPO detectives
were able to determine that defendant was the registered owner of
this car. In addition, Agent Walsh found a dark green Toyota
registered to defendant outside a nearby apartment complex.
Further investigation revealed that Camacho lived in the apartment
complex.
On October 29, 2010, the State's forensic odonatologist
confirmed that Heimlich was the victim after comparing his dental
records to the charred remains found in the burning vehicle on
September 29, 2010.
Agent Walsh subsequently reported that both defendant and
Camacho had left their original Florida residences and had moved
in together at another house in Cape Coral.
The ACPO detectives obtained a search warrant for defendant
and Camacho's home in Voorhees. They were not able to find any
cell phones or other electronic devices in the home.
14 A-1757-13T3
The detectives next obtained the cell phone records for the
4955 number that "Diana" used to contact Heimlich on September 28,
2010. The detectives learned that the phone was manufactured by
Tracfone Wireless, Inc. ("Tracfone"), a prepaid wireless service
provider. Tracfone reported that a cell phone with the 4955 number
had been sold to the CVS corporation for resale. Tracfone also
stated that the phone had been activated on September 28, 2010 at
10:47 a.m. by someone who had called Tracfone from a Verizon
telephone number. In response to a subpoena, Verizon reported on
November 12, 2010 that the activation call had been placed from a
pay phone located outside a convenience store in Marlton, New
Jersey.
The detectives contacted CVS, which was able to determine
that the cell phone with the 4955 number was sold to a customer
at its Gibbsboro, New Jersey store. This store was near
defendant's home in Voorhees. CVS reported that the phone was
sold to the customer on September 27, 2010 at 9:44 a.m. and that
there was a surveillance tape of the transaction.
On November 16, 2010, ACPO Detective Michael Mattioli
obtained a copy of the surveillance video and some still
photographs of the transaction. The man in the video who purchased
the cell phone used by "Diana" to contact Heimlich appeared to be
defendant.
15 A-1757-13T3
After assembling all of this information, Detective Rauch
decided to go to Florida to verify that defendant was the man
shown purchasing the Tracfone in the video and that he was living
in the Cape Coral home. The detective also wanted to attempt to
interview defendant and Camacho concerning Heimlich's death. ACPO
detectives Rauch, Anton, Mattioli, and Frederico went to Florida
on November 16, 2010, the same day they saw defendant in the
surveillance video.
Once in Florida, the ACPO detectives partnered with Agent
Walsh and members of the United States Marshall's Task Force
("USMTF"). They placed defendant's home under surveillance. In
the morning, Camacho left the home in the dark green Camry and
drove her son to a day care facility. Once Camacho left the
facility, Detectives Rauch and Mattioli approached her and told
her they wanted to speak to her about Heimlich. Camacho agreed
to accompany the detectives to the Fort Meyers Police Department.
Once there, the detectives read Camacho her Miranda8 rights. At
that time, Camacho declined to answer any questions and the
detectives returned her to her car.
About ten minutes after Camacho left defendant's home,
Detectives Anton and Frederico, together with Agent Walsh and
8 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
16 A-1757-13T3
USTMF member Leslie Green, approached defendant's home and then
knocked on the door. Defendant, who was not wearing a shirt,
opened the door. The officers identified themselves and told
defendant they "were there for a homicide investigation involving
Ross Heimlich." At the evidentiary hearing on defendant's motion
to suppress, Agent Walsh and Detective Anton testified that
defendant then invited the officers to come inside the home. Upon
seeing defendant, Detective Anton positively identified him as the
man who purchased the Tracfone in the CVS surveillance video.
Defendant led the officers into the kitchen, where the ACPO
detectives remained for the entirety of their visit. The house
had an "open-floor plan" and, from the kitchen, Detective Anton
could see into the living room. Looking into the living room, the
detective saw a laptop computer.
At first, the officers and defendant engaged in small talk
about restaurants in the area. Defendant then "requested to get
a shirt from his bedroom." Officer Green followed defendant "for
safety purposes" and stood outside the doorway of the bedroom as
defendant got a shirt. He then walked back to the kitchen area
with defendant. Officer Green did not search any of defendant's
rooms and there is nothing in the record to indicate that he made
any observations of anything in the house.
17 A-1757-13T3
The officers and defendant continued to make small talk, with
the topic now turning to a cruise defendant was planning to take.
Detective Anton then asked defendant if he would agree to an
interview concerning Heimlich's death. Defendant stated he would
like to speak to his attorney. The officers did not question
defendant after that point.
Detective Anton called Detective Rauch and told him that he
had identified defendant as the man in the CVS surveillance video.
Detective Anton also stated that he saw a laptop in defendant's
living room. Detective Rauch decided to proceed to get a search
warrant to search defendant's home and advised Detective Anton of
this decision.
Detective Anton told Agent Walsh that the ACPO detectives
were going to apply to a Florida judge for a search warrant. Agent
Walsh arranged for two other agents to guard defendant's home from
the outside to make sure no one entered while the search warrant
was obtained. Agent Walsh also told defendant that he could not
stay in the house because it needed to be secured while the search
warrant was sought. Defendant complied. As he left, defendant
attempted to take a cell phone that was in the home with him, but
an officer told him it had to remain in the house. The officers
also left the house. Agent Walsh and Detective Anton testified
18 A-1757-13T3
that no search was conducted until later that day after the search
warrant was obtained.
Police headquarters was approximately thirty minutes from
defendant's home. Once all the detectives arrived there, Detective
Rauch completed the probable cause section of the search warrant
affidavit by including all of the information discussed above,
which took about ninety minutes.9 Among other things, the
affidavit sought permission to search for the Tracfone that was
used to call Heimlich, other cell phones, computers, any clothing
worn by defendant when he purchased the Tracfone, and any
medications used to treat STDs.
The detective then sent the paperwork to an ACPO assistant
prosecutor for review. Once the assistant prosecutor approved the
application, the ACPO detectives and Agent Walsh made an
appointment with the emergent duty judge. The judge arranged to
meet with them at 4:00 p.m. The judge reviewed and approved the
search warrant and the detectives returned to defendant's house.
The agents who had been guarding the house were still parked in
the driveway.
The search warrant was executed at 5:00 p.m. and the search
ended at about 8:30 p.m. Approximately ten hours had elapsed
9 Detective Rauch had prepared the bulk of the search warrant affidavit prior to leaving New Jersey.
19 A-1757-13T3
between the time defendant left his house and the conclusion of
the search. Among other items, the detectives seized a laptop
computer, a personal computer, two cell phones, and a cell phone
charger.
By this time, the ACPO detectives had hypothesized that
defendant and Camacho moved to Florida in July 2010, but then
returned to New Jersey on or shortly before September 27, 2010,
the date defendant bought the Tracfone used to lure Heimlich to
their home. The detectives surmised that defendant and Camacho
left their cell phones behind in Florida when they returned to New
Jersey so that their location could not be tracked. However, the
detectives surmised that the couple may have used a GPS device
during the trip and, if it could be located, it would assist the
detectives in ascertaining when defendant and Camacho had returned
to New Jersey.
Thus, on November 18, 2010, Detectives Rauch and Mattioli
accompanied Agent Walsh to the school where Camacho's children
attended. The detectives interviewed the older child,10 who was
eight years old, in the presence of the school principal and a
counselor, who had already been working with the children regarding
10 The detectives also spoke to the younger child, who was six years old. However, the child did not add any relevant information to the investigation.
20 A-1757-13T3
educational issues. The detectives did not seek permission from
Camacho prior to the interview because the child was not a suspect,
but merely a possible witness. Detective Rauch testified that the
child was "very comfortable, very cooperative." The detectives
only spoke to the child about travel issues and there was no
mention of the ongoing homicide investigation.
The child told Detective Rauch that he had missed school when
the two children, Camacho, and defendant went on a trip to New
Jersey to visit the children's grandfather in New Jersey and their
grandmother in Philadelphia.11 The family made the trip in a
minivan that defendant rented "because their other car was broken."
The child told the detective that defendant took the GPS device
from one of the family's cars and put it in the van. The device
had a suction cup on it that stuck to the window of the car. The
child stated that the family slept in the Voorhees home during the
visit, and that the two children and Camacho stayed one night in
Philadelphia with the grandmother.
On November 19, 2010, Detective Rauch prepared a second
probable cause affidavit seeking permission to search defendant
and Camacho's vehicles for, among other things, GPS devices, maps,
11 On September 28, 2010, "Diana" sent a text message to Heimlich stating she was in Philadelphia and would meet him later at her home in Voorhees.
21 A-1757-13T3
toll records, the Tracfone, other cell phones, computers, other
electronic devices, and clothing worn by Heimlich or defendant.
The same Florida judge who approved the first search warrant
application, approved the second one.
Later that day, the detectives found defendant and Camacho
in a parking lot with the two cars. They executed the search
warrants and recovered two GPS devices, including one that Camacho
was holding in her hand as she got out of the white Cadillac. The
other device was found on the floor of the dark green Camry.
On December 14, 2010, defendant and Camacho traveled to
Cuba.12 An arrest warrant was issued on March 7, 2011. Defendant
and Camacho were arrested in Cuba in September 2011, and extradited
to New Jersey. As previously noted, a grand jury indicted
defendant, Camacho, and their friend, Damien Leo, on December 21,
2011.
In support of the superseding indictment the grand jury
returned on March 20, 2013, Detective Rauch told the grand jury
that in May 2011, a woman who worked at a convenience store in
Philadelphia called the ACPO. The woman stated that one of her
customers, who she identified as Damien Leo, told her that he was
12 At the time of his plea, defendant represented that he was "a dual citizen" and a "citizen of Malta," which may explain why he was able to enter Cuba.
22 A-1757-13T3
involved in Heimlich's murder. Detective Rauch and another
detective went to Philadelphia and interviewed the woman, who told
them that Leo brought a copy of a newspaper article about the
murder into the store and told her he was in trouble and would be
"going away to jail for a long time."
The detectives later interviewed Leo. After waiving his
Miranda rights, Leo agreed to give a statement. Leo told the
detectives that in the fall of 2010, defendant called him on the
telephone and asked Leo "to help 'rough a guy up[.]'" Leo agreed
and defendant picked him up and brought him to defendant's home.
Camacho was in the house. Defendant told Leo that Camacho had
contacted Heimlich and told him to come to the house. Leo said
that he did not know Heimlich, but was friends with both defendant
and Camacho.
Heimlich arrived at the home and knocked on the door. Camacho
answered it and let Heimlich in. Defendant then rushed out of a
back room brandishing a starters pistol and ordered Heimlich to
get on the floor. Heimlich complied, but then got up and started
fighting with defendant. Defendant hit Heimlich with the pistol
several times "and then got him in a choke-hold." Leo also "got
in a few blows" as defendant continued to choke Heimlich until he
stopped moving. Defendant then said, "He's fucking dead."
23 A-1757-13T3
Defendant went outside and backed Heimlich's car into the
garage. He rolled Heimlich in a sheet, dragged him to the garage
and then, with Leo's help, put Heimlich in the back seat of the
car. Defendant left Heimlich's car in the garage and then he and
Camacho drove Leo home. On the way, defendant asked Leo if he
wanted to help him dispose of Heimlich's body by burning his car.
Leo stated that he refused.
Detective Rauch also testified before the grand jury that the
Atlantic County Medical Examiner found that a toxicology report
of Heimlich's charred body "revealed a mildly elevated level of
carboxyhemoglobin[13] . . . and the lungs were mildly enervated and
edematous, suggesting that [Heimlich] was incapacitated but not
dead when the fire was set." The detective also told the grand
jury that another pathology expert retained by the State had opined
that Heimlich's carboxyhemoglobin levels were "consistent with
levels commonly seen in motor vehicle fire deaths[,]" where the
victim "dies from the thermal effects of the fire and the vitiated
air, and not due to carbon monoxide poisoning." This expert also
stated that "[t]he absence of any identifiable, partially fatal
injuries, other than the burning, is also consistent with the
deceased being alive at the time of the fire." Finally, Detective
13 The detective stated that "carboxyhemoglobin" is "carbon that gets into your bloodstream as a result of inhaling smoke[.]"
24 A-1757-13T3
Rauch testified that a defense expert had opined that Heimlich
"was dead when the fire was started" because there was "no gross
evidence of soot" in Heimlich's "airway."
II.
As noted above, defendant filed a pre-trial motion
challenging the search warrants the Florida judge issued for the
search of his house. In opposition to that motion, the State
presented the testimony of Agent Walsh, Detective Rauch, and
Detective Anton, and their testimony at the two-day evidentiary
hearing was summarized above.
Defendant did not present any witnesses on his behalf.
However, defendant did submit an affidavit in which he asserted
that the officers "entered [his] property without any invitation."
He asserted that one of the officers followed him into his bedroom
when he went to get a shirt. Defendant also claimed that he tried
to put two cell phones in his pockets, but the officer took them
from him. He stated that the officers then "began to question
[him] about a homicide in New Jersey" and told him that Camacho
was already in custody. He stated that the officers continued to
attempt to question him before ordering him to leave the house.
Defendant did not testify at the hearing or subject himself to
cross-examination concerning the claims made in his affidavit.
25 A-1757-13T3
In a thorough written decision, Judge Bernard DeLury, Jr.
denied defendant's motion to suppress the evidence seized pursuant
to the search warrant.14 The judge found that both Detective Rauch
and Detective Anton, who testified before him, gave "highly
credible testimony[.]" Although Agent Walsh testified on the
first day of the hearing, the judge reviewed the transcript and
stated that "[e]ven from a cold record, [he] was able to discern
the internal consistency of his evidence and how well it stood up
to the rigors of cross-examination." Against this highly credible
testimony, the judge stated that he did not find defendant's
affidavit "to be persuasive or credible."
After reviewing all of the evidence, Judge DeLury concluded
that "the law enforcement officers involved in this case acted
reasonably and lawfully in obtaining and executing the search
warrants." The judge found that Detective Rauch's probable cause
affidavit "fairly and accurately represented the facts and
circumstances" of the investigation and, therefore, "permit[ted]
a reasonable fact[-]finder to determine probable cause to search
for the items, including a computer, being sought."
14 A different judge presided at the first day of the evidentiary hearing. After this judge recused himself, Judge DeLury reviewed the transcript of that proceeding and completed the hearing with the consent of defendant, Camacho, and the State.
26 A-1757-13T3
Judge DeLury found that defendant invited the detectives into
the house. He further found that Detective Anton saw a laptop
computer in the living room from his vantage point in the kitchen.
Citing the United States Supreme Court's decision in Segura
v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599
(1984), Judge DeLury found that the detectives properly asked
defendant to leave his house so that they could secure it from the
outside while they obtained the search warrant. Noting that, in
Segura, the Supreme Court held that a seizure of a dwelling by the
police for nineteen hours while a warrant was obtained was not
unreasonable, the judge concluded that the nine- or ten-hour time
span involved in this case was not violative of defendant's rights.
The judge also stated that defendant's cell phones were
"contents" of the house and, therefore, the detectives properly
did not permit defendant to take them when he left the house. In
this regard, the judge stated that it "would have been unreasonable
and risky to leave a suspect in a brutal homicide, who now knew
police were aware of his location, in control of potentially
incriminating evidence." The judge also found that there was no
evidence that the police searched the house after defendant left
and before it was secured. Instead, Detective Anton saw the laptop
that Detective Rauch later mentioned in his probable cause
27 A-1757-13T3
affidavit in the living room prior to defendant returning from the
bedroom.
In Point I of the brief prepared by his attorney, defendant
contends that (1) the detectives conducted an unlawful "protective
sweep" of the house; (2) did not have probable cause to seize the
house; and (3) relied upon "information learned during the illegal
seizure" of the house to secure the search warrant. These
arguments lack merit.
The scope of our review of a judge's findings of fact on a
motion to suppress is limited. "We do not weigh the evidence,
assess the credibility of witnesses, or make conclusions about the
evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only
determine "whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record."
State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good
position to judge credibility and should not make new credibility
findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only
where we are "thoroughly satisfied that the finding is clearly a
mistaken one and so plainly unwarranted that the interests of
justice demand intervention and correction . . . [that we] appraise
the record as if [we] were deciding the matter at inception and
make [our] own findings and conclusions." Johnson, supra, 42 N.J.
at 162.
28 A-1757-13T3
"[S]earch warrants must be based on sufficient specific
information to enable a prudent, neutral judicial officer to make
an independent determination that there is probable cause to
believe that a search would yield evidence of past or present
criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005).
"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.'" State v. Chippero, 201 N.J. 14,
28 (2009) (quoting United States v. Jones, 994 F.2d 1051, 1056 (3d
Cir. 1993)).
When issuing a search warrant, a court must consider the
totality of the circumstances to determine whether probable cause
exists. State v. Novembrino, 105 N.J. 95, 122 (1987) (adopting
the totality of the circumstances test set forth in Illinois v.
Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527,
548 (1983)). When reviewing whether probable cause exists for a
warrant, a reviewing court must consider only the "four corners"
of the affidavit and any sworn testimony given before the issuing
judge. State v. Wilson, 178 N.J. 7, 14 (2003). A defendant has
the burden to show the absence of probable cause. Keyes, supra,
184 N.J. at 554.
Applying these standards, we conclude that there was no error
in denying defendant's motion to suppress the items seized pursuant
29 A-1757-13T3
to the search warrant. Contrary to defendant's contention,
Detective Rauch's affidavit in support of the search warrant
painstakingly detailed the probable cause necessary to justify a
search of defendant's house. The affidavit established that
Heimlich talked and traded text messages on the night of his
disappearance with someone using a Tracfone with a specific number.
That individual asked Heimlich to come to defendant's house by
promising him a sexual encounter. The detectives were able to
secure a surveillance video that showed that defendant was the
person who purchased the Tracfone. The detectives also learned
from examining Heimlich's computer that he and Camacho had
communicated using their respective computers. Heimlich's phone
records indicate that he was in the vicinity of defendant's home
that night and that he was never heard from again.
It was therefore reasonable for the Florida judge to conclude
that a search of defendant's home might lead to the discovery of,
among other things, the Tracfone, other cell phones, computers,
and other electronic devices that might contain evidence relating
to Heimlich's disappearance and death. Therefore, we discern no
basis to disturb Judge DeLury's decision to uphold the validity
of the search warrant.
Defendant next asserts that the detectives wrongfully
conducted a "protective sweep" of his house and that they observed
30 A-1757-13T3
items during that search which were later used by Detective Rauch
to establish probable cause to support the issuance of the warrant.
However, there is no basis in the record to support defendant's
contention.
As defendant correctly points out, our Supreme Court has
recently reiterated that "[a] 'protective sweep' is a quick and
limited search of premises, incident to an arrest and conducted
to protect the safety of police officers or others. It is narrowly
confined to a cursory visual inspection of those places in which
a person might be hiding." State v. Cope, 224 N.J. 530, 546 (2016)
(quoting State v. Davila, 203 N.J. 97, 113 (2010)). In order to
conduct a protective sweep, the law enforcement officers must be
lawfully in the premises and must have a "reasonable [and]
articulable suspicion that the area to be swept harbors an
individual posing a danger." State v. Bryant, 227 N.J. 60, 70
(2016) (alteration in original) (quoting Davila, supra, 203 N.J.
at 125); see also State v. Legette, ___ N.J. ___ (2017) (slip op.
at 16-17) (holding that it was improper for a police officer who
stopped the defendant outside his home to accompany the defendant
into the home and then conduct a protective sweep of the entire
premises).
Here, however, the detectives did not, as defendant alleges
in his brief, "fan out" and "check[] [the house] to see if anybody
31 A-1757-13T3
else was in the premises." Indeed, Detective Anton testified that
there was no protective sweep. In arguing to the contrary,
defendant points to the following exchange that occurred during
the prosecutor's direct examination of Detective Anton at the
suppression hearing:
Q. Do you know if at any point in time while officers were in the premises, if anybody checked to see if anybody else was in the premises?
A. Yes.
Q. Did you do it?
A. No, I did not.
Q. Okay. Was anybody else in the premises?
A. No.
What defendant apparently fails to acknowledge is that the
prosecutor never asked the detective whether a protective sweep
was conducted, only whether the detective knew if one had occurred.
The detective never stated that the detectives swept through
defendant's house looking for other suspects or for any other
purpose. Indeed, the detective consistently stated that after
defendant invited them into the house, the officers remained in
the kitchen and, while there, he could also see into the living
room.
32 A-1757-13T3
If this point were not clear, Detective Anton made it so in
response to defendant's trial attorney's questions on cross
examination. The detective specifically stated that he never said
that officers "fan[ned] out inside of the property so that officers
could assure themselves no one else was inside[.]" Defendant does
not cite to this testimony in his brief. As noted above, Judge
DeLury found the detective's testimony to be credible.
To be sure, a USTMF member trailed behind defendant as he
went into his bedroom to get his shirt. But, as Judge DeLury
found, defendant invited all of the officers, including Officer
Green into his home. Defendant did not object when the officer
followed behind him and stood outside the bedroom door. Although
defendant was not under arrest at that point, we believe that it
was prudent for the officer to monitor defendant, who was suspected
of murdering a man and burning the body, for "officer safety."
See State v. Bruzzese, 94 N.J. 210, 233-34 (1983) (holding that a
police officer may monitor an arrestee's movements inside his home
in order to protect the officer from harm), cert. denied, 465 U.S.
1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Significantly, Officer Green did not use his presence near
the bedroom to make any observations that were later used to
justify the search. Nor did the officer seize any of defendant's
property. Indeed, there is nothing in the record indicating that
33 A-1757-13T3
the officer made any observations or was involved in any way in
the preparation of the search warrant. Thus, we reject defendant's
contention on this point.
Defendant also asserts that Detective Anton learned that
defendant had a laptop computer in the home as a result of an
illegal search. However, as discussed above, defendant invited
the detectives into his home; Detective Anton saw the laptop in
the living room from his vantage point in the kitchen; and there
was no impermissible protective sweep of the premises.
Moreover, Detective Rauch did not need to include Detective
Anton's observation of the computer in the probable cause affidavit
in order to justify the issuance of a search warrant seeking,
among other things, one or more computers. The detectives'
investigation had already revealed that Camacho used a computer
to communicate with Heimlich and, given the totality of the
circumstances, it was reasonable to conclude that a computer found
in the house might contain evidence concerning Heimlich's death.
In addition, as defendant specifically concedes in another section
of his brief, "[i]n this day and age, one could presume that almost
every household has cell phones and computers." Therefore, even
if Detective Anton's observation of the laptop had been improper,
and information concerning what he saw stricken from Detective
34 A-1757-13T3
Rauch's affidavit, there would have still been ample probable
cause to sustain the issuance of the warrant.
Finally, defendant argues that the detectives improperly
"seized his house" for almost ten hours while they obtained a
search warrant from the Florida judge and then executed it. We
discern no basis to disturb Judge DeLury's rejection of this
argument.
"Different interests are implicated by a seizure than by a
search." Segura, supra, 468 U.S. at 806, 104 S. Ct. at 3386, 82
L. Ed. 2d at 609. "A seizure affects only the person's possessory
interests; a search affects a person's privacy interests." Ibid.
As a result, "warrantless seizures of property, on the basis of
probable cause, for the time necessary to secure a warrant" have
been approved. Ibid. This is all that occurred here. Defendant's
constitutional rights were not violated by this seizure in any of
the respects that he asserts on appeal, all of which lack merit.
III.
In Point II of the brief submitted by his appellate attorney,
defendant argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the
sentence is based on competent credible evidence and fits within
the statutory framework. State v. Dalziel, 182 N.J. 494, 500
(2005). Judges must identify and consider "any relevant
35 A-1757-13T3
aggravating and mitigating factors" that "are called to the court's
attention[,]" and "explain how they arrived at a particular
sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting
State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review
of sentencing is deferential," and we therefore avoid substituting
our judgment for the judgment of the trial court. Id. at 65; see
State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95
N.J. 334, 365 (1984).
We are satisfied that the sentencing judge made findings of
fact concerning aggravating and mitigating factors that were based
on competent and reasonably credible evidence in the record, and
applied the correct sentencing guidelines enunciated in the Code.
The sentence the judge imposed does not shock our judicial
conscience. Case, supra, 220 N.J. at 65; O'Donnell, supra, 117
N.J. at 215-16. Accordingly, we discern no basis to second-guess
the sentence.
IV.
The arguments raised in defendant's pro se supplemental brief
are clearly without merit and do not warrant discussion in a
written opinion. R. 2:11-3(e)(2). Therefore, we add only the
following brief comments.
Contrary to defendant's argument in Point I of his brief,
Judge DeLury correctly denied defendant's motion to dismiss the
36 A-1757-13T3
superseding indictment. In examining the power of grand juries,
our Supreme Court "has recognized the grand jury's independence
and has expressed a reluctance to intervene in the indictment
process." State v. Hogan, 144 N.J. 216, 228 (1996). Consequently,
a trial court should disturb an indictment only "'on the clearest
and plainest ground' . . . and only when the indictment is
manifestly or palpably defective." Id. at 228-29 (quoting State
v. Perry, 124 N.J. 128 (1991)).
A trial judge's decision denying a defendant's motion to
dismiss an indictment is reviewed for abuse of discretion. State
v. Saavedra, 222 N.J. 39, 55 (2015) (citing Hogan, supra, 144 N.J.
at 229). Accordingly, the trial judge's "exercise of discretionary
authority ordinarily will not be disturbed on appeal unless it has
been clearly abused." Hogan, supra, 144 N.J. at 229.
Judge DeLury reviewed the evidence submitted to the grand
jury and concluded that the evidence plainly supported each and
every one of the charges. Contrary to defendant's assertion, the
State advised the grand jury that defendant had secured an expert
who disputed the State's claim that Heimlich was alive at the time
defendant set his car on fire. We detect no abuse of discretion
in the judge's sound ruling.
We also reject defendant's contention in Point II of his
brief that Judge DeLury erred by denying his motion to suppress
37 A-1757-13T3
evidence of his and Camacho's flight from the United States to
Cuba. Defendant may have been legally permitted to travel to Cuba
as a result of his status as a citizen of Malta. However, defendant
and Camacho abruptly left a house they had just obtained in
Florida, removed Camacho's children from school, and left the
United States for Cuba less than a month after the execution of
the search warrants and with full knowledge that the ACPO
detectives considered them to be suspects in Heimlich's death.
Defendant's actions certainly constituted "circumstances present
and unexplained which in conjunction with the leaving, reasonably
justif[ied] an inference that it was done with a consciousness of
guilt and pursuant to an effort to avoid an accusation based on
that guilt." State v. Ingram, 196 N.J. 23, 46 (2008).
Moving to Point III of defendant's pro se brief, we are also
satisfied that Judge DeLury properly granted the State's motion
for permission to introduce other crimes evidence under N.J.R.E.
404(b) if the case went to trial. A trial court's evidentiary
rulings are accorded substantial deference and will not be
disturbed on appeal absent a finding that the court abused its
discretion in admitting or excluding evidence. Benevenga v.
Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif.
denied, 163 N.J. 79 (2000). This standard governs review of the
admissibility of prior bad acts under N.J.R.E. 404(b), which is
38 A-1757-13T3
left to the discretion of the trial court, "because of its intimate
knowledge of the case[.]" State v. Covell, 157 N.J. 554, 564
(1999) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)).
Here, the State sought to introduce evidence that a few weeks
before defendant murdered Heimlich after learning he had an affair
with Camacho, defendant also accosted another one of Camacho's co
workers, who he suspected of also having an affair with her.
Following an evidentiary hearing, Judge DeLury concluded that the
proffered evidence met all four prongs of the familiar Cofield
test. State v. Cofield, 127 N.J. 328, 338 (1992). The evidence
was clearly relevant to a material issue in dispute, namely,
defendant's intent and motive. As Judge DeLury observed in his
written opinion:
Defendant . . . was a man on a mission in the early morning hours of August 23, 2010. He wanted to get in [Heimlich's co-worker's] face about his intimate and provocative text exchange with . . . Camacho. Defendant['s] . . . actions all bespeak a man motivated by jealousy and a singular resolve to intimidate and threaten with acts of violence the [person who was] the focus of his jealousy.
Judge DeLury also properly found that the two incidents were
similar in kind and that the State proved that the incident with
the co-worker occurred by clear and convincing evidence presented
at the evidentiary hearing. Finally, the probative value of the
evidence was not outweighed by any prejudicial effect. Ibid.
39 A-1757-13T3
Thus, the judge correctly determined that this evidence would be
admissible at trial under N.J.R.E. 404(b).
Contrary to defendant's argument in Point IV of his brief,
and as already discussed above, Judge DeLury properly denied
defendant's motion to suppress the evidence seized during the
search of his house on November 18, 2010.
Finally, defendant argues in Point V and VI that the search
and seizure of the two GPS devices from his cars were improper.
These arguments also lack merit.
The detectives interviewed Camacho's oldest child, who told
them that Camacho and defendant drove them from Florida to New
Jersey in a rented minivan and used GPS devices during the trip.
Because the child was a witness, rather than a suspect of a crime,
there was no requirement that the detectives contact Camacho prior
to the interview. The child's statement that defendant used GPS
devices provided further support for the overwhelming evidence
that Detective Rauch already had at that point establishing
probable cause for the issuance of a search warrant for defendant's
cars for evidence related to Heimlich's disappearance and death.
MoreLaw Receptionist Services
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On December 21, 2011, an Atlantic County grand jury returned
an indictment1 charging defendant Denis Catania, his girlfriend
Diana Camacho, and their friend Damien Leo2 with a number of
offenses including first-degree murder, first-degree conspiracy
to commit murder, and first-degree felony murder. Thereafter,
defendant and Camacho filed several joint motions. On June 13,
2012, the trial court denied their motion to dismiss the
indictment. On November 29, 2012, the court denied their motion
to suppress evidence seized from defendant's home pursuant to a
search warrant, and to exclude evidence concerning their flight
to Cuba after the police executed the search warrant.
On March 20, 2013, an Atlantic County grand jury returned a
thirteen-count superseding indictment3 charging defendant with
first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count
one); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2
and N.J.S.A. 2C:11-3(a)(1) and/or (a)(2) (count two); two counts
1 Indictment No. 11-12-3059.
2 On May 3, 2012, Leo pled guilty to an amended charge of seconddegree aggravated manslaughter and, as part of his plea agreement, he agreed to give truthful testimony if called as a witness at defendant's and Camacho's trial. After the charges against defendant and Camacho were resolved, the trial court sentenced Leo to eight years in prison, subject to the 85% parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:437.2.
3 Indictment No. 13-03-0859.
3 A-1757-13T3
of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and (b)(2)
(counts three and four); second-degree conspiracy to commit
kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1(b)(1) and/or
(b)(2) (count five); two counts of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3) (counts six and seven); second-degree
aggravated arson, N.J.S.A. 2C:17-1(a) (count eight); second-degree
conspiracy to commit aggravated arson, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:17-1(a) (count nine); fourth-degree tampering with
physical evidence, N.J.S.A. 2C:28-6(1) (count ten); third-degree
hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count eleven);
second-degree desecration of human remains, N.J.S.A. 2C:22-1(a)(2)
(count twelve); and third-degree possession of a weapon (a starters
pistol), N.J.S.A. 2C:39-4(d) (count thirteen).4
On June 27, 2013, the trial court denied defendant's and
Camacho's motions to dismiss the superseding indictment. On July
11, 2013, the court granted the State's motion to admit evidence
of defendant's prior bad acts at trial pursuant to N.J.R.E. 404(b).
On July 11, 2013, defendant pled guilty to one count of first
degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a
lesser-included offense of first-degree murder under count one.
In return for defendant's guilty plea, the State agreed to
4 Camacho was named as a co-defendant in counts one through twelve of the indictment.
4 A-1757-13T3
recommend that the trial court impose a custodial sentence between
twenty-two and twenty-five years, subject to NERA, and a five-year
period of parole supervision upon release. The State also agreed
to dismiss the remaining charges against defendant.
On August 22, 2013, the trial judge sentenced defendant to
twenty-five years in prison, subject to NERA, with a five-year
period of parole supervision. The judge ordered defendant to pay
the victim's family $2500 as restitution to cover "the damage to
the victim[']s vehicle." The judge also imposed appropriate fines
and penalties.5 This appeal followed.
On appeal, defendant through counsel raises the following
issues:
POINT I
THE DEFENDANT'S FOURTH AMENDMENT RIGHTS WERE VIOLATED WHEN THE POLICE SEIZED HIS HOUSE WITHOUT PROBABLE CAUSE OR EXIGENT CIRCUMSTANCES AND HELD IT FOR SEVEN HOURS UNTIL A WARRANT WAS FINALLY OBTAINED.
A. Defendant Has Standing To Challenge The Seizure of His Residence In Florida.
B. The Burden Of Proof Is On The State To Justify The Warrantless Seizure Of Defendant's House.
5 On July 8, 2013, Camacho pled guilty to first-degree conspiracy to commit murder and, pursuant to her plea agreement, the trial judge sentenced her on August 22, 2013 as a second-degree offender to nine years in prison, subject to NERA, with a five-year period of parole supervision upon release.
5 A-1757-13T3
C. The Police Violated Defendant's Fourth Amendment Rights By Following Defendant To His Bedroom And Conducting A Protective Sweep Of His House Without Any Reason To Believe That There Were Weapons Or Other Persons Present Who Might Endanger Them.
D. Because The Police Had Neither Probable Cause Nor Exigent Circumstances, The Seizure of Defendant's House Cannot Be Justified As Maintaining The Status Quo Prior To Obtaining A Warrant.
E. Because The Warrants Were Issued In Part Based Upon Information Learned During The Illegal Seizure Of Defendant's House, The Items Seized During the Warrant Searches Must Also Be Suppressed As Fruit Of The Poisonous Tree.
POINT II
THE CASE MUST BE REMANDED FOR RESENTENCING DUE TO THE SENTENCING COURT'S INCORRECT AND UNSUPPORTED FINDINGS ON AGGRAVATING AND MITIGATING FACTORS.
Defendant raises the following issues in his pro se
supplemental brief:
POINT I
THE DEFENDANT'S RIGHT TO INDICTMENT BY GRAND JURY AND DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPHS 1 AND 8 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DISMISS THE INDICTMENT DUE TO THE PROSECUTOR WITHHOLDING CLEARLY EXCULPATORY EVIDENCE FROM THE GRAND JURY AND MISREPRESENTING THE TRUTH TO BOLSTER ITS PRIMA FACIE CASE.
6 A-1757-13T3
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE [TRIAL] COURT'S DENIAL OF HIS MOTION TO BAR ANY ARGUMENT, TESTIMONY, AND EVIDENCE BY THE STATE ALLEGING FLIGHT AS DEFENDANT'S CONSCIOUSNESS OF GUILT.
POINT III
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S RULING THAT EVIDENCE OF THE ALLEGED AUGUST 23, 2010, INCIDENT INVOLVING THE DEFENDANT AND TIMOTHY ERWIN WAS ADMISSIBLE AS OTHER CRIME EVIDENCE UNDER N.J.R.E. 404(b).
POINT IV
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPHS 1 AND 7 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S DETERMINATION THAT FLORIDA LAW AND JURISPRUDENCE GOVERNED THE DISPOSITION OF HIS MOTION TO SUPPRESS EVIDENCE SEIZED IN FLORIDA BY THE JOINT OPERATIONS AND COOPERATIVE INVESTIGATIONS OF NEW JERSEY AND FLORIDA LAW ENFORCEMENT OFFICERS.
POINT V
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPH 7 OF THE
7 A-1757-13T3
NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE OF THE GPS DEVICE FROM THE PURSE/PERSON OF DIANA CAMACHO DURING THE SEARCH OF THE DEFENDANTS' MOTOR VEHICLES IN FLORIDA ON NOVEMBER 19[,] 2010.
POINT VI
THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND TO BE FREE FROM AN ILLEGAL SEARCH AND SEIZURE AS GUARANTEED BY THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I PARAGRAPHS 1 AND 7 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE USE OF AN ILLEGALLY OBTAINED STATEMENT FROM THE DEFENDANTS' MINOR CHILD TO SUPPORT PROBABLE CAUSE TO SEARCH THE DEFENDANTS' VEHICLES AND SEIZE TWO GPS DEVICES.
After reviewing the record in light of the contentions
advanced on appeal, we affirm defendant's conviction and sentence.
I.
The State's theory underlying the superseding indictment was
that after defendant learned that Camacho was having an affair
with the victim, Ross Heimlich, he conspired with Camacho and Leo
to lure Heimlich to defendant's home where defendant killed the
victim. The State developed the following proofs in support of
its application for a search warrant to search defendant's home
in Florida, where he was residing after the murder.6
6 The trial court conducted a two-day evidentiary hearing on defendant's motion to suppress the evidence seized under the authority of the search warrant.
8 A-1757-13T3
At 3:19 a.m. on September 29, 2010, the Hammonton police and
fire departments responded to the scene of a reported vehicular
fire. They found a four-door car that was fully engulfed in
flames. After extinguishing the fire, the police found the charred
remains of a human in the back seat of the car. The body was so
badly burned that the police could not even determine the victim's
gender.
However, the police found the vehicle identification number
of the burned car and recovered its front license plate. With
this information, the police determined that Heimlich's
grandfather was the registered owner of the car. The police
contacted the grandfather, who told them that Heimlich lived with
him and his wife. The grandfather stated that he gave Heimlich
permission to use the car at approximately 8:00 p.m. on September
28, 2010. Heimlich "never returned home and was never heard from
again."
Heimlich's grandfather also told the police that Heimlich
used a cell phone, but had not returned the grandfather's calls.
Heimlich was enrolled at a community college, but had not gone to
class on September 29, 2010.
The police located video surveillance footage of the area
where the car was found from a security camera at a nearby gift
shop. The footage revealed that, at 2:53 a.m. on September 29,
9 A-1757-13T3
2010, Heimlich's car was driving east on the White Horse Pike
while being followed by an unidentified dark-colored vehicle. Both
cars made a right turn and then stopped. At 2:57 a.m., a bright
flash could be seen in Heimlich's car and it was quickly engulfed
in flames. The other car then left the scene.
Detective Joseph Rauch of the Atlantic County Prosecutor's
Office ("ACPO") was the lead investigator on the case. He tried
to call Heimlich's cell phone several times, but there was no
response and the voice mail system was full. On September 29,
2010, Detective Rauch obtained Heimlich's cell phone records for
the period between September 27 and September 29, 2010. The
detective found a series of calls and text messages exchanged on
September 28, 2010 "between Heimlich and person(s) believed to be
a female identified in one of the text messages only as 'Diana,'"
at a cell phone number ending in 4955.
The text messages were recovered, and Detective Rauch learned
that "Diana" arranged to meet with Heimlich on the evening of
September 28, 2010 "with the promise of a sexual encounter."
"Diana" told Heimlich to go to her house at 9:00 p.m. and she
would meet him when she returned from Philadelphia. "Diana" also
stated that she would call Heimlich when she was ten minutes away
from her home. Heimlich and "Diana" exchanged numerous calls and
text messages throughout the rest of the day.
10 A-1757-13T3
The last exchange occurred at 9:28 p.m. and lasted twenty
four seconds. According to "cell site information" Detective
Rauch obtained from the Heimlich's phone records, Heimlich's cell
phone was near defendant's and Diana Camacho's home in Voorhees
when this call occurred.
Other detectives interviewed one of Heimlich's friends, who
stated that he sent a text message to Heimlich at 7:45 p.m. on
September 28, 2010 to ask where he was. Heimlich responded that
he was in Voorhees. At 9:22 p.m. that evening, Heimlich called
the friend and said "he was pulling up outside 'the girl's' house."
The friend recalled that about a month earlier, Heimlich told him
that "he was having a sexual relationship with a married woman
whose husband was not around."
On September 30, 2010, Heimlich's aunt reported that Heimlich
"may have been having an affair with 'Diane Camacho,' a woman who
was possibly married." The aunt also stated that Camacho and
Heimlich were co-workers at a department store in Voorhees.
Other detectives spoke to the store's loss prevention
associate, who reported that Camacho had attempted to file a
criminal complaint against Heimlich on August 5, 2010. The
detectives obtained Camacho's complaint, which alleged that
Heimlich "sexually assaulted her numerous times at work and at her
residence and as a result she contracted a sexually[-]transmitted
11 A-1757-13T3
disease (STD)." On August 16, 2010, a Voorhees municipal court
judge dismissed Camacho's complaint after finding "there was
insufficient evidence to sustain the sexual assault charges."
The detectives interviewed another department store employee.
This employee stated that he had called and texted Camacho several
times in the past. The phone number the employee gave the police
for Camacho was not the 4955 number that "Diana" used to contact
Heimlich on September 28, 2010.
The employee told the detectives that, on August 23, 2010,
defendant came to the store and confronted him. Defendant stated,
"why did you text my girlfriend and propose to her? I have the
text [and] I will find you." The employee reported the matter to
the police, but refused to press charges against defendant.7
The store employee also told the police that Heimlich and
Camacho "advised him that they had been engaging in a sexual
relationship since approximately April of 2010." Camacho told the
employee "that her boyfriend was very controlling and jealous."
Camacho also stated that Heimlich gave her a STD "and that she in
turn gave the STD to her boyfriend." In addition, Camacho told
7 As noted above, the trial court later granted the State's motion to admit the employee's testimony at trial concerning defendant's threats to establish defendant's intent and motive pursuant to N.J.R.E. 404(b).
12 A-1757-13T3
the employee that her boyfriend drove a dark green four-door
Toyota, that was possibly a Camry.
The ACPO obtained Heimlich's computer from his residence. A
forensic examination of the device revealed that Heimlich and
Camacho had communicated with each other by computer.
Once defendant was identified as Camacho's boyfriend, the
police were able to locate a record of a 911 call that defendant
made on August 25, 2010 concerning a dispute he was having with a
moving company at his home. The number defendant used to call the
police on that date was not the 4955 number that "Diana" used on
September 28, 2010 to contact Heimlich.
On October 1, 2010, detectives went to defendant's and
Camacho's home in Voorhees and found that it was vacant. There
was a "for sale" sign on the lawn. The realtor advised a detective
that defendant had listed the house for sale about seven months
earlier. The realtor stated that defendant and his girlfriend had
moved to Florida.
Detective Rauch obtained defendant's cell phone and E-Z Pass
toll records, which disclosed that defendant had left New Jersey
on July 9, 2010 and arrived in Florida on July 19, 2010. Defendant
obtained a Florida driver's license on July 19, 2010 and now lived
at a home in Cape Coral. Further investigation revealed that on
13 A-1757-13T3
August 26, 2010, Camacho left New Jersey with her children and was
also living in Florida.
On October 5, 2010, ACPO Detective William Anton contacted
Special Agent Matthew Walsh of the Florida Department of Law
Enforcement seeking assistance in locating defendant and Camacho.
The next day, Agent Walsh went to defendant's home and found a
white Cadillac parked in front of the home. The ACPO detectives
were able to determine that defendant was the registered owner of
this car. In addition, Agent Walsh found a dark green Toyota
registered to defendant outside a nearby apartment complex.
Further investigation revealed that Camacho lived in the apartment
complex.
On October 29, 2010, the State's forensic odonatologist
confirmed that Heimlich was the victim after comparing his dental
records to the charred remains found in the burning vehicle on
September 29, 2010.
Agent Walsh subsequently reported that both defendant and
Camacho had left their original Florida residences and had moved
in together at another house in Cape Coral.
The ACPO detectives obtained a search warrant for defendant
and Camacho's home in Voorhees. They were not able to find any
cell phones or other electronic devices in the home.
14 A-1757-13T3
The detectives next obtained the cell phone records for the
4955 number that "Diana" used to contact Heimlich on September 28,
2010. The detectives learned that the phone was manufactured by
Tracfone Wireless, Inc. ("Tracfone"), a prepaid wireless service
provider. Tracfone reported that a cell phone with the 4955 number
had been sold to the CVS corporation for resale. Tracfone also
stated that the phone had been activated on September 28, 2010 at
10:47 a.m. by someone who had called Tracfone from a Verizon
telephone number. In response to a subpoena, Verizon reported on
November 12, 2010 that the activation call had been placed from a
pay phone located outside a convenience store in Marlton, New
Jersey.
The detectives contacted CVS, which was able to determine
that the cell phone with the 4955 number was sold to a customer
at its Gibbsboro, New Jersey store. This store was near
defendant's home in Voorhees. CVS reported that the phone was
sold to the customer on September 27, 2010 at 9:44 a.m. and that
there was a surveillance tape of the transaction.
On November 16, 2010, ACPO Detective Michael Mattioli
obtained a copy of the surveillance video and some still
photographs of the transaction. The man in the video who purchased
the cell phone used by "Diana" to contact Heimlich appeared to be
defendant.
15 A-1757-13T3
After assembling all of this information, Detective Rauch
decided to go to Florida to verify that defendant was the man
shown purchasing the Tracfone in the video and that he was living
in the Cape Coral home. The detective also wanted to attempt to
interview defendant and Camacho concerning Heimlich's death. ACPO
detectives Rauch, Anton, Mattioli, and Frederico went to Florida
on November 16, 2010, the same day they saw defendant in the
surveillance video.
Once in Florida, the ACPO detectives partnered with Agent
Walsh and members of the United States Marshall's Task Force
("USMTF"). They placed defendant's home under surveillance. In
the morning, Camacho left the home in the dark green Camry and
drove her son to a day care facility. Once Camacho left the
facility, Detectives Rauch and Mattioli approached her and told
her they wanted to speak to her about Heimlich. Camacho agreed
to accompany the detectives to the Fort Meyers Police Department.
Once there, the detectives read Camacho her Miranda8 rights. At
that time, Camacho declined to answer any questions and the
detectives returned her to her car.
About ten minutes after Camacho left defendant's home,
Detectives Anton and Frederico, together with Agent Walsh and
8 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
16 A-1757-13T3
USTMF member Leslie Green, approached defendant's home and then
knocked on the door. Defendant, who was not wearing a shirt,
opened the door. The officers identified themselves and told
defendant they "were there for a homicide investigation involving
Ross Heimlich." At the evidentiary hearing on defendant's motion
to suppress, Agent Walsh and Detective Anton testified that
defendant then invited the officers to come inside the home. Upon
seeing defendant, Detective Anton positively identified him as the
man who purchased the Tracfone in the CVS surveillance video.
Defendant led the officers into the kitchen, where the ACPO
detectives remained for the entirety of their visit. The house
had an "open-floor plan" and, from the kitchen, Detective Anton
could see into the living room. Looking into the living room, the
detective saw a laptop computer.
At first, the officers and defendant engaged in small talk
about restaurants in the area. Defendant then "requested to get
a shirt from his bedroom." Officer Green followed defendant "for
safety purposes" and stood outside the doorway of the bedroom as
defendant got a shirt. He then walked back to the kitchen area
with defendant. Officer Green did not search any of defendant's
rooms and there is nothing in the record to indicate that he made
any observations of anything in the house.
17 A-1757-13T3
The officers and defendant continued to make small talk, with
the topic now turning to a cruise defendant was planning to take.
Detective Anton then asked defendant if he would agree to an
interview concerning Heimlich's death. Defendant stated he would
like to speak to his attorney. The officers did not question
defendant after that point.
Detective Anton called Detective Rauch and told him that he
had identified defendant as the man in the CVS surveillance video.
Detective Anton also stated that he saw a laptop in defendant's
living room. Detective Rauch decided to proceed to get a search
warrant to search defendant's home and advised Detective Anton of
this decision.
Detective Anton told Agent Walsh that the ACPO detectives
were going to apply to a Florida judge for a search warrant. Agent
Walsh arranged for two other agents to guard defendant's home from
the outside to make sure no one entered while the search warrant
was obtained. Agent Walsh also told defendant that he could not
stay in the house because it needed to be secured while the search
warrant was sought. Defendant complied. As he left, defendant
attempted to take a cell phone that was in the home with him, but
an officer told him it had to remain in the house. The officers
also left the house. Agent Walsh and Detective Anton testified
18 A-1757-13T3
that no search was conducted until later that day after the search
warrant was obtained.
Police headquarters was approximately thirty minutes from
defendant's home. Once all the detectives arrived there, Detective
Rauch completed the probable cause section of the search warrant
affidavit by including all of the information discussed above,
which took about ninety minutes.9 Among other things, the
affidavit sought permission to search for the Tracfone that was
used to call Heimlich, other cell phones, computers, any clothing
worn by defendant when he purchased the Tracfone, and any
medications used to treat STDs.
The detective then sent the paperwork to an ACPO assistant
prosecutor for review. Once the assistant prosecutor approved the
application, the ACPO detectives and Agent Walsh made an
appointment with the emergent duty judge. The judge arranged to
meet with them at 4:00 p.m. The judge reviewed and approved the
search warrant and the detectives returned to defendant's house.
The agents who had been guarding the house were still parked in
the driveway.
The search warrant was executed at 5:00 p.m. and the search
ended at about 8:30 p.m. Approximately ten hours had elapsed
9 Detective Rauch had prepared the bulk of the search warrant affidavit prior to leaving New Jersey.
19 A-1757-13T3
between the time defendant left his house and the conclusion of
the search. Among other items, the detectives seized a laptop
computer, a personal computer, two cell phones, and a cell phone
charger.
By this time, the ACPO detectives had hypothesized that
defendant and Camacho moved to Florida in July 2010, but then
returned to New Jersey on or shortly before September 27, 2010,
the date defendant bought the Tracfone used to lure Heimlich to
their home. The detectives surmised that defendant and Camacho
left their cell phones behind in Florida when they returned to New
Jersey so that their location could not be tracked. However, the
detectives surmised that the couple may have used a GPS device
during the trip and, if it could be located, it would assist the
detectives in ascertaining when defendant and Camacho had returned
to New Jersey.
Thus, on November 18, 2010, Detectives Rauch and Mattioli
accompanied Agent Walsh to the school where Camacho's children
attended. The detectives interviewed the older child,10 who was
eight years old, in the presence of the school principal and a
counselor, who had already been working with the children regarding
10 The detectives also spoke to the younger child, who was six years old. However, the child did not add any relevant information to the investigation.
20 A-1757-13T3
educational issues. The detectives did not seek permission from
Camacho prior to the interview because the child was not a suspect,
but merely a possible witness. Detective Rauch testified that the
child was "very comfortable, very cooperative." The detectives
only spoke to the child about travel issues and there was no
mention of the ongoing homicide investigation.
The child told Detective Rauch that he had missed school when
the two children, Camacho, and defendant went on a trip to New
Jersey to visit the children's grandfather in New Jersey and their
grandmother in Philadelphia.11 The family made the trip in a
minivan that defendant rented "because their other car was broken."
The child told the detective that defendant took the GPS device
from one of the family's cars and put it in the van. The device
had a suction cup on it that stuck to the window of the car. The
child stated that the family slept in the Voorhees home during the
visit, and that the two children and Camacho stayed one night in
Philadelphia with the grandmother.
On November 19, 2010, Detective Rauch prepared a second
probable cause affidavit seeking permission to search defendant
and Camacho's vehicles for, among other things, GPS devices, maps,
11 On September 28, 2010, "Diana" sent a text message to Heimlich stating she was in Philadelphia and would meet him later at her home in Voorhees.
21 A-1757-13T3
toll records, the Tracfone, other cell phones, computers, other
electronic devices, and clothing worn by Heimlich or defendant.
The same Florida judge who approved the first search warrant
application, approved the second one.
Later that day, the detectives found defendant and Camacho
in a parking lot with the two cars. They executed the search
warrants and recovered two GPS devices, including one that Camacho
was holding in her hand as she got out of the white Cadillac. The
other device was found on the floor of the dark green Camry.
On December 14, 2010, defendant and Camacho traveled to
Cuba.12 An arrest warrant was issued on March 7, 2011. Defendant
and Camacho were arrested in Cuba in September 2011, and extradited
to New Jersey. As previously noted, a grand jury indicted
defendant, Camacho, and their friend, Damien Leo, on December 21,
2011.
In support of the superseding indictment the grand jury
returned on March 20, 2013, Detective Rauch told the grand jury
that in May 2011, a woman who worked at a convenience store in
Philadelphia called the ACPO. The woman stated that one of her
customers, who she identified as Damien Leo, told her that he was
12 At the time of his plea, defendant represented that he was "a dual citizen" and a "citizen of Malta," which may explain why he was able to enter Cuba.
22 A-1757-13T3
involved in Heimlich's murder. Detective Rauch and another
detective went to Philadelphia and interviewed the woman, who told
them that Leo brought a copy of a newspaper article about the
murder into the store and told her he was in trouble and would be
"going away to jail for a long time."
The detectives later interviewed Leo. After waiving his
Miranda rights, Leo agreed to give a statement. Leo told the
detectives that in the fall of 2010, defendant called him on the
telephone and asked Leo "to help 'rough a guy up[.]'" Leo agreed
and defendant picked him up and brought him to defendant's home.
Camacho was in the house. Defendant told Leo that Camacho had
contacted Heimlich and told him to come to the house. Leo said
that he did not know Heimlich, but was friends with both defendant
and Camacho.
Heimlich arrived at the home and knocked on the door. Camacho
answered it and let Heimlich in. Defendant then rushed out of a
back room brandishing a starters pistol and ordered Heimlich to
get on the floor. Heimlich complied, but then got up and started
fighting with defendant. Defendant hit Heimlich with the pistol
several times "and then got him in a choke-hold." Leo also "got
in a few blows" as defendant continued to choke Heimlich until he
stopped moving. Defendant then said, "He's fucking dead."
23 A-1757-13T3
Defendant went outside and backed Heimlich's car into the
garage. He rolled Heimlich in a sheet, dragged him to the garage
and then, with Leo's help, put Heimlich in the back seat of the
car. Defendant left Heimlich's car in the garage and then he and
Camacho drove Leo home. On the way, defendant asked Leo if he
wanted to help him dispose of Heimlich's body by burning his car.
Leo stated that he refused.
Detective Rauch also testified before the grand jury that the
Atlantic County Medical Examiner found that a toxicology report
of Heimlich's charred body "revealed a mildly elevated level of
carboxyhemoglobin[13] . . . and the lungs were mildly enervated and
edematous, suggesting that [Heimlich] was incapacitated but not
dead when the fire was set." The detective also told the grand
jury that another pathology expert retained by the State had opined
that Heimlich's carboxyhemoglobin levels were "consistent with
levels commonly seen in motor vehicle fire deaths[,]" where the
victim "dies from the thermal effects of the fire and the vitiated
air, and not due to carbon monoxide poisoning." This expert also
stated that "[t]he absence of any identifiable, partially fatal
injuries, other than the burning, is also consistent with the
deceased being alive at the time of the fire." Finally, Detective
13 The detective stated that "carboxyhemoglobin" is "carbon that gets into your bloodstream as a result of inhaling smoke[.]"
24 A-1757-13T3
Rauch testified that a defense expert had opined that Heimlich
"was dead when the fire was started" because there was "no gross
evidence of soot" in Heimlich's "airway."
II.
As noted above, defendant filed a pre-trial motion
challenging the search warrants the Florida judge issued for the
search of his house. In opposition to that motion, the State
presented the testimony of Agent Walsh, Detective Rauch, and
Detective Anton, and their testimony at the two-day evidentiary
hearing was summarized above.
Defendant did not present any witnesses on his behalf.
However, defendant did submit an affidavit in which he asserted
that the officers "entered [his] property without any invitation."
He asserted that one of the officers followed him into his bedroom
when he went to get a shirt. Defendant also claimed that he tried
to put two cell phones in his pockets, but the officer took them
from him. He stated that the officers then "began to question
[him] about a homicide in New Jersey" and told him that Camacho
was already in custody. He stated that the officers continued to
attempt to question him before ordering him to leave the house.
Defendant did not testify at the hearing or subject himself to
cross-examination concerning the claims made in his affidavit.
25 A-1757-13T3
In a thorough written decision, Judge Bernard DeLury, Jr.
denied defendant's motion to suppress the evidence seized pursuant
to the search warrant.14 The judge found that both Detective Rauch
and Detective Anton, who testified before him, gave "highly
credible testimony[.]" Although Agent Walsh testified on the
first day of the hearing, the judge reviewed the transcript and
stated that "[e]ven from a cold record, [he] was able to discern
the internal consistency of his evidence and how well it stood up
to the rigors of cross-examination." Against this highly credible
testimony, the judge stated that he did not find defendant's
affidavit "to be persuasive or credible."
After reviewing all of the evidence, Judge DeLury concluded
that "the law enforcement officers involved in this case acted
reasonably and lawfully in obtaining and executing the search
warrants." The judge found that Detective Rauch's probable cause
affidavit "fairly and accurately represented the facts and
circumstances" of the investigation and, therefore, "permit[ted]
a reasonable fact[-]finder to determine probable cause to search
for the items, including a computer, being sought."
14 A different judge presided at the first day of the evidentiary hearing. After this judge recused himself, Judge DeLury reviewed the transcript of that proceeding and completed the hearing with the consent of defendant, Camacho, and the State.
26 A-1757-13T3
Judge DeLury found that defendant invited the detectives into
the house. He further found that Detective Anton saw a laptop
computer in the living room from his vantage point in the kitchen.
Citing the United States Supreme Court's decision in Segura
v. United States, 468 U.S. 796, 104 S. Ct. 3380, 82 L. Ed. 2d 599
(1984), Judge DeLury found that the detectives properly asked
defendant to leave his house so that they could secure it from the
outside while they obtained the search warrant. Noting that, in
Segura, the Supreme Court held that a seizure of a dwelling by the
police for nineteen hours while a warrant was obtained was not
unreasonable, the judge concluded that the nine- or ten-hour time
span involved in this case was not violative of defendant's rights.
The judge also stated that defendant's cell phones were
"contents" of the house and, therefore, the detectives properly
did not permit defendant to take them when he left the house. In
this regard, the judge stated that it "would have been unreasonable
and risky to leave a suspect in a brutal homicide, who now knew
police were aware of his location, in control of potentially
incriminating evidence." The judge also found that there was no
evidence that the police searched the house after defendant left
and before it was secured. Instead, Detective Anton saw the laptop
that Detective Rauch later mentioned in his probable cause
27 A-1757-13T3
affidavit in the living room prior to defendant returning from the
bedroom.
In Point I of the brief prepared by his attorney, defendant
contends that (1) the detectives conducted an unlawful "protective
sweep" of the house; (2) did not have probable cause to seize the
house; and (3) relied upon "information learned during the illegal
seizure" of the house to secure the search warrant. These
arguments lack merit.
The scope of our review of a judge's findings of fact on a
motion to suppress is limited. "We do not weigh the evidence,
assess the credibility of witnesses, or make conclusions about the
evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only
determine "whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record."
State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good
position to judge credibility and should not make new credibility
findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only
where we are "thoroughly satisfied that the finding is clearly a
mistaken one and so plainly unwarranted that the interests of
justice demand intervention and correction . . . [that we] appraise
the record as if [we] were deciding the matter at inception and
make [our] own findings and conclusions." Johnson, supra, 42 N.J.
at 162.
28 A-1757-13T3
"[S]earch warrants must be based on sufficient specific
information to enable a prudent, neutral judicial officer to make
an independent determination that there is probable cause to
believe that a search would yield evidence of past or present
criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005).
"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.'" State v. Chippero, 201 N.J. 14,
28 (2009) (quoting United States v. Jones, 994 F.2d 1051, 1056 (3d
Cir. 1993)).
When issuing a search warrant, a court must consider the
totality of the circumstances to determine whether probable cause
exists. State v. Novembrino, 105 N.J. 95, 122 (1987) (adopting
the totality of the circumstances test set forth in Illinois v.
Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527,
548 (1983)). When reviewing whether probable cause exists for a
warrant, a reviewing court must consider only the "four corners"
of the affidavit and any sworn testimony given before the issuing
judge. State v. Wilson, 178 N.J. 7, 14 (2003). A defendant has
the burden to show the absence of probable cause. Keyes, supra,
184 N.J. at 554.
Applying these standards, we conclude that there was no error
in denying defendant's motion to suppress the items seized pursuant
29 A-1757-13T3
to the search warrant. Contrary to defendant's contention,
Detective Rauch's affidavit in support of the search warrant
painstakingly detailed the probable cause necessary to justify a
search of defendant's house. The affidavit established that
Heimlich talked and traded text messages on the night of his
disappearance with someone using a Tracfone with a specific number.
That individual asked Heimlich to come to defendant's house by
promising him a sexual encounter. The detectives were able to
secure a surveillance video that showed that defendant was the
person who purchased the Tracfone. The detectives also learned
from examining Heimlich's computer that he and Camacho had
communicated using their respective computers. Heimlich's phone
records indicate that he was in the vicinity of defendant's home
that night and that he was never heard from again.
It was therefore reasonable for the Florida judge to conclude
that a search of defendant's home might lead to the discovery of,
among other things, the Tracfone, other cell phones, computers,
and other electronic devices that might contain evidence relating
to Heimlich's disappearance and death. Therefore, we discern no
basis to disturb Judge DeLury's decision to uphold the validity
of the search warrant.
Defendant next asserts that the detectives wrongfully
conducted a "protective sweep" of his house and that they observed
30 A-1757-13T3
items during that search which were later used by Detective Rauch
to establish probable cause to support the issuance of the warrant.
However, there is no basis in the record to support defendant's
contention.
As defendant correctly points out, our Supreme Court has
recently reiterated that "[a] 'protective sweep' is a quick and
limited search of premises, incident to an arrest and conducted
to protect the safety of police officers or others. It is narrowly
confined to a cursory visual inspection of those places in which
a person might be hiding." State v. Cope, 224 N.J. 530, 546 (2016)
(quoting State v. Davila, 203 N.J. 97, 113 (2010)). In order to
conduct a protective sweep, the law enforcement officers must be
lawfully in the premises and must have a "reasonable [and]
articulable suspicion that the area to be swept harbors an
individual posing a danger." State v. Bryant, 227 N.J. 60, 70
(2016) (alteration in original) (quoting Davila, supra, 203 N.J.
at 125); see also State v. Legette, ___ N.J. ___ (2017) (slip op.
at 16-17) (holding that it was improper for a police officer who
stopped the defendant outside his home to accompany the defendant
into the home and then conduct a protective sweep of the entire
premises).
Here, however, the detectives did not, as defendant alleges
in his brief, "fan out" and "check[] [the house] to see if anybody
31 A-1757-13T3
else was in the premises." Indeed, Detective Anton testified that
there was no protective sweep. In arguing to the contrary,
defendant points to the following exchange that occurred during
the prosecutor's direct examination of Detective Anton at the
suppression hearing:
Q. Do you know if at any point in time while officers were in the premises, if anybody checked to see if anybody else was in the premises?
A. Yes.
Q. Did you do it?
A. No, I did not.
Q. Okay. Was anybody else in the premises?
A. No.
What defendant apparently fails to acknowledge is that the
prosecutor never asked the detective whether a protective sweep
was conducted, only whether the detective knew if one had occurred.
The detective never stated that the detectives swept through
defendant's house looking for other suspects or for any other
purpose. Indeed, the detective consistently stated that after
defendant invited them into the house, the officers remained in
the kitchen and, while there, he could also see into the living
room.
32 A-1757-13T3
If this point were not clear, Detective Anton made it so in
response to defendant's trial attorney's questions on cross
examination. The detective specifically stated that he never said
that officers "fan[ned] out inside of the property so that officers
could assure themselves no one else was inside[.]" Defendant does
not cite to this testimony in his brief. As noted above, Judge
DeLury found the detective's testimony to be credible.
To be sure, a USTMF member trailed behind defendant as he
went into his bedroom to get his shirt. But, as Judge DeLury
found, defendant invited all of the officers, including Officer
Green into his home. Defendant did not object when the officer
followed behind him and stood outside the bedroom door. Although
defendant was not under arrest at that point, we believe that it
was prudent for the officer to monitor defendant, who was suspected
of murdering a man and burning the body, for "officer safety."
See State v. Bruzzese, 94 N.J. 210, 233-34 (1983) (holding that a
police officer may monitor an arrestee's movements inside his home
in order to protect the officer from harm), cert. denied, 465 U.S.
1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).
Significantly, Officer Green did not use his presence near
the bedroom to make any observations that were later used to
justify the search. Nor did the officer seize any of defendant's
property. Indeed, there is nothing in the record indicating that
33 A-1757-13T3
the officer made any observations or was involved in any way in
the preparation of the search warrant. Thus, we reject defendant's
contention on this point.
Defendant also asserts that Detective Anton learned that
defendant had a laptop computer in the home as a result of an
illegal search. However, as discussed above, defendant invited
the detectives into his home; Detective Anton saw the laptop in
the living room from his vantage point in the kitchen; and there
was no impermissible protective sweep of the premises.
Moreover, Detective Rauch did not need to include Detective
Anton's observation of the computer in the probable cause affidavit
in order to justify the issuance of a search warrant seeking,
among other things, one or more computers. The detectives'
investigation had already revealed that Camacho used a computer
to communicate with Heimlich and, given the totality of the
circumstances, it was reasonable to conclude that a computer found
in the house might contain evidence concerning Heimlich's death.
In addition, as defendant specifically concedes in another section
of his brief, "[i]n this day and age, one could presume that almost
every household has cell phones and computers." Therefore, even
if Detective Anton's observation of the laptop had been improper,
and information concerning what he saw stricken from Detective
34 A-1757-13T3
Rauch's affidavit, there would have still been ample probable
cause to sustain the issuance of the warrant.
Finally, defendant argues that the detectives improperly
"seized his house" for almost ten hours while they obtained a
search warrant from the Florida judge and then executed it. We
discern no basis to disturb Judge DeLury's rejection of this
argument.
"Different interests are implicated by a seizure than by a
search." Segura, supra, 468 U.S. at 806, 104 S. Ct. at 3386, 82
L. Ed. 2d at 609. "A seizure affects only the person's possessory
interests; a search affects a person's privacy interests." Ibid.
As a result, "warrantless seizures of property, on the basis of
probable cause, for the time necessary to secure a warrant" have
been approved. Ibid. This is all that occurred here. Defendant's
constitutional rights were not violated by this seizure in any of
the respects that he asserts on appeal, all of which lack merit.
III.
In Point II of the brief submitted by his appellate attorney,
defendant argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the
sentence is based on competent credible evidence and fits within
the statutory framework. State v. Dalziel, 182 N.J. 494, 500
(2005). Judges must identify and consider "any relevant
35 A-1757-13T3
aggravating and mitigating factors" that "are called to the court's
attention[,]" and "explain how they arrived at a particular
sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting
State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review
of sentencing is deferential," and we therefore avoid substituting
our judgment for the judgment of the trial court. Id. at 65; see
State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95
N.J. 334, 365 (1984).
We are satisfied that the sentencing judge made findings of
fact concerning aggravating and mitigating factors that were based
on competent and reasonably credible evidence in the record, and
applied the correct sentencing guidelines enunciated in the Code.
The sentence the judge imposed does not shock our judicial
conscience. Case, supra, 220 N.J. at 65; O'Donnell, supra, 117
N.J. at 215-16. Accordingly, we discern no basis to second-guess
the sentence.
IV.
The arguments raised in defendant's pro se supplemental brief
are clearly without merit and do not warrant discussion in a
written opinion. R. 2:11-3(e)(2). Therefore, we add only the
following brief comments.
Contrary to defendant's argument in Point I of his brief,
Judge DeLury correctly denied defendant's motion to dismiss the
36 A-1757-13T3
superseding indictment. In examining the power of grand juries,
our Supreme Court "has recognized the grand jury's independence
and has expressed a reluctance to intervene in the indictment
process." State v. Hogan, 144 N.J. 216, 228 (1996). Consequently,
a trial court should disturb an indictment only "'on the clearest
and plainest ground' . . . and only when the indictment is
manifestly or palpably defective." Id. at 228-29 (quoting State
v. Perry, 124 N.J. 128 (1991)).
A trial judge's decision denying a defendant's motion to
dismiss an indictment is reviewed for abuse of discretion. State
v. Saavedra, 222 N.J. 39, 55 (2015) (citing Hogan, supra, 144 N.J.
at 229). Accordingly, the trial judge's "exercise of discretionary
authority ordinarily will not be disturbed on appeal unless it has
been clearly abused." Hogan, supra, 144 N.J. at 229.
Judge DeLury reviewed the evidence submitted to the grand
jury and concluded that the evidence plainly supported each and
every one of the charges. Contrary to defendant's assertion, the
State advised the grand jury that defendant had secured an expert
who disputed the State's claim that Heimlich was alive at the time
defendant set his car on fire. We detect no abuse of discretion
in the judge's sound ruling.
We also reject defendant's contention in Point II of his
brief that Judge DeLury erred by denying his motion to suppress
37 A-1757-13T3
evidence of his and Camacho's flight from the United States to
Cuba. Defendant may have been legally permitted to travel to Cuba
as a result of his status as a citizen of Malta. However, defendant
and Camacho abruptly left a house they had just obtained in
Florida, removed Camacho's children from school, and left the
United States for Cuba less than a month after the execution of
the search warrants and with full knowledge that the ACPO
detectives considered them to be suspects in Heimlich's death.
Defendant's actions certainly constituted "circumstances present
and unexplained which in conjunction with the leaving, reasonably
justif[ied] an inference that it was done with a consciousness of
guilt and pursuant to an effort to avoid an accusation based on
that guilt." State v. Ingram, 196 N.J. 23, 46 (2008).
Moving to Point III of defendant's pro se brief, we are also
satisfied that Judge DeLury properly granted the State's motion
for permission to introduce other crimes evidence under N.J.R.E.
404(b) if the case went to trial. A trial court's evidentiary
rulings are accorded substantial deference and will not be
disturbed on appeal absent a finding that the court abused its
discretion in admitting or excluding evidence. Benevenga v.
Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif.
denied, 163 N.J. 79 (2000). This standard governs review of the
admissibility of prior bad acts under N.J.R.E. 404(b), which is
38 A-1757-13T3
left to the discretion of the trial court, "because of its intimate
knowledge of the case[.]" State v. Covell, 157 N.J. 554, 564
(1999) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)).
Here, the State sought to introduce evidence that a few weeks
before defendant murdered Heimlich after learning he had an affair
with Camacho, defendant also accosted another one of Camacho's co
workers, who he suspected of also having an affair with her.
Following an evidentiary hearing, Judge DeLury concluded that the
proffered evidence met all four prongs of the familiar Cofield
test. State v. Cofield, 127 N.J. 328, 338 (1992). The evidence
was clearly relevant to a material issue in dispute, namely,
defendant's intent and motive. As Judge DeLury observed in his
written opinion:
Defendant . . . was a man on a mission in the early morning hours of August 23, 2010. He wanted to get in [Heimlich's co-worker's] face about his intimate and provocative text exchange with . . . Camacho. Defendant['s] . . . actions all bespeak a man motivated by jealousy and a singular resolve to intimidate and threaten with acts of violence the [person who was] the focus of his jealousy.
Judge DeLury also properly found that the two incidents were
similar in kind and that the State proved that the incident with
the co-worker occurred by clear and convincing evidence presented
at the evidentiary hearing. Finally, the probative value of the
evidence was not outweighed by any prejudicial effect. Ibid.
39 A-1757-13T3
Thus, the judge correctly determined that this evidence would be
admissible at trial under N.J.R.E. 404(b).
Contrary to defendant's argument in Point IV of his brief,
and as already discussed above, Judge DeLury properly denied
defendant's motion to suppress the evidence seized during the
search of his house on November 18, 2010.
Finally, defendant argues in Point V and VI that the search
and seizure of the two GPS devices from his cars were improper.
These arguments also lack merit.
The detectives interviewed Camacho's oldest child, who told
them that Camacho and defendant drove them from Florida to New
Jersey in a rented minivan and used GPS devices during the trip.
Because the child was a witness, rather than a suspect of a crime,
there was no requirement that the detectives contact Camacho prior
to the interview. The child's statement that defendant used GPS
devices provided further support for the overwhelming evidence
that Detective Rauch already had at that point establishing
probable cause for the issuance of a search warrant for defendant's
cars for evidence related to Heimlich's disappearance and death.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of STATE OF NEW JERSEY v. DENIS A. CATANIA, a/k/a DENNIS CAT...?
The outcome was: < As for the balance of any of defendant's arguments not expressly discussed above, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. >
Which court heard STATE OF NEW JERSEY v. DENIS A. CATANIA, a/k/a DENNIS CAT...?
This case was heard in SUPERIOR COURT OF NEW JERSEY, NJ. The presiding judge was Richard Nugent.
Who were the attorneys in STATE OF NEW JERSEY v. DENIS A. CATANIA, a/k/a DENNIS CAT...?
Plaintiff's attorney: Steven A. Yomtov, Deputy Attorney General. Defendant's attorney: James K. Smith, Jr., Assistant Deputy Public Defender.
When was STATE OF NEW JERSEY v. DENIS A. CATANIA, a/k/a DENNIS CAT... decided?
This case was decided on March 27, 2017.