State v. Bailey
| Decision Date | 21 June 2022 |
| Docket Number | A-60 September Term 2020,085342 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Ashley D. BAILEY, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Elizabeth C. Jarit, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Candace Caruthers, Assistant Deputy Public Defender, of counsel and on the briefs, and Frank M. Gennaro, Designated Counsel, on the briefs).
Kevin J. Hein, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace C. MacAulay, Camden County Prosecutor, attorney; Kevin J. Hein, of counsel and on the briefs, and Linda A. Shashoua, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).
Shira Wisotsky argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Shira Wisotsky, Alexander Shalom, Newark, and Jeanne LoCicero, on the brief).
Janie Byalik, Hackensack, argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, attorneys; CJ Griffin, on the brief).
William P. Cooper-Daub, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Andrew J. Bruck, Acting Attorney General, attorney; William P. Cooper-Daub, of counsel and on the brief).
The marital communications privilege bars spouses and civil union partners from disclosing "any communication made in confidence between such person and his or her spouse or civil union partner." N.J.R.E. 509 ; N.J.S.A. 2A:84A-22(1).
On July 22, 2014, this Court proposed that the Legislature amend N.J.R.E. 509 to adopt a crime-fraud exception to the marital communications privilege. State v. Terry, 218 N.J. 224, 229-30, 94 A.3d 882 (2014). Effective November 9, 2015, the Legislature amended N.J.S.A. 2A:84A-22 to provide that no marital privilege shields communications "in a criminal action or proceeding if the communication relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communication." L. 2015, c. 138, § 2 (codified at N.J.R.E. 509(2)(e) ; N.J.S.A. 2A:84A-22(2)(e) ). N.J.R.E. 509 was amended in accordance with the Legislature's action.
In this appeal of defendant Ashley D. Bailey's conviction of two counts of second-degree official misconduct, we determine whether the crime-fraud exception to the marital communications privilege governed text messages that defendant exchanged with her husband on September 16, 2014 -- after the Court proposed the exception, but before the Legislature enacted it into law.
The trial court held that the crime-fraud exception properly applied to the text messages without raising ex post facto concerns and admitted the messages into evidence at defendant's trial. The Appellate Division affirmed.
We disagree that the crime-fraud exception can be properly applied to marital communications that preceded the Legislature's amendment of N.J.R.E. 509. We find no evidence that the Legislature intended that amendment to retroactively apply to otherwise privileged marital communications that occurred prior to that amendment. We therefore hold that the trial court's admission of the text messages constituted error. However, we view that error to be harmless given the extensive evidence presented by the State in support of defendant's official misconduct convictions.
Accordingly, we modify and affirm the Appellate Division's judgment.
Defendant and Edwin Ingram married in 2011 and remained married until Ingram's death in 2016.1 They had two children.
After serving as a corrections officer in Delaware for four years, defendant joined the Camden County Police Department as a patrol officer on December 14, 2013.
In April 2014, the New Jersey State Police commenced "Operation Southern District," an investigation of an alleged drug distribution network operating in Camden. In the early stages of the investigation, detectives working undercover conducted controlled purchases of narcotics from some of the individuals suspected of participating in the distribution network. The investigators identified Edwin Ingram; his brother, Nathan Ingram; his half-brother, Fidel Webb; and three other men, Donyell Calm, Lawrence Brown, and Kareem Anderson, as targets of the investigation.
As a Camden County police officer, defendant had a username and password that allowed her to access the Police Department's Law Enforcement Advanced Applications (LEAA) system, a secure records-management system containing police reports.
On June 10, 2014, defendant used her username and password to sign into the LEAA system while she was in her patrol car. She accessed six police reports regarding Edwin Ingram, two police reports regarding Webb, and one police report regarding Calm. On June 19, 2014, the same day that an undercover officer conducted a controlled drug purchase from Edwin Ingram and Calm, defendant again accessed the LEAA system to review four additional police reports regarding Calm.
As defendant later admitted to investigators and at trial, accessing police reports on an investigation to which she was not assigned was outside the scope of her duties as a police officer.
As "Operation Southern District" progressed, detectives obtained Communications Data Warrants with respect to the targeted individuals’ telephone facilities. Beginning in June 2014, the warrants enabled the officers to retrieve data from the telephone facilities through Dialed Number Recorders that identified calls and text messages to and from each targeted facility without revealing their content.
The detectives then obtained court orders authorizing them to wiretap the telephones of some of the individuals investigated. Beginning on August 13, 2014, investigators wiretapped phones associated with defendant, Edwin Ingram, Nathan Ingram, Calm, and other targets of the investigation.
The State contended at trial that immediately after the wiretaps commenced, the volume of calls between defendant and the targets of the investigation dropped dramatically, and that this revealed that defendant told her husband and his associates that police were wiretapping their conversations. The lead detective in the investigation, Detective Sergeant Keith Moyer, testified that between June 2014 and August 13, 2014, the Dialed Number Recorder identified 129 telephone calls between defendant's telephone facility and the telephone facilities of Calm and other targets of the drug investigation, including fourteen calls between defendant's telephone and Calm's telephone on a single day. Moyer testified that after August 13, 2014, the Dialed Number Recorder identified only six calls between defendant and the targets of the investigation. According to the State, Moyer also told the jury that the volume of calls between Edwin Ingram and other targets of the investigation dropped from 939 calls before the wiretaps commenced to six calls thereafter.2
Police intercepted a call between Calm and Anderson at 2:17 p.m. on September 16, 2014. Calm told Anderson that an unnamed person was "scared as hell," and that the person "said he was wondering why IA was near his crib." The State contended that in that conversation, Calm was discussing Edwin Ingram, who had learned from defendant that the Camden County Police Department's Internal Affairs Unit was investigating her.
On September 16, 2014, defendant and Edwin Ingram exchanged the following text messages:
Sergeant Robert Borger of the Camden County Police Department testified that at 5:00 a.m. on October 23, 2014, he conducted a roll call attended by defendant and one other Camden County police officer, and read an intelligence briefing to the two officers. Detective Moyer testified that although the information stated in the briefing was accurate, the briefing was "designed to be given specifically...
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