defense interviews and statements not automatically discoverable
STATE OF NEW JERSEY,
DANIEL R. ZIOLKOWSKI,
Argued telephonically November 3, 2016 – Decided November 16, 2016
Before Judges Fisher and Leone.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 15-05-0241.
Janine M. Cerra, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Cerra, of counsel and on the brief).
Shaina Brenner, Assistant Prosecutor, argued the cause for respondent (Francis A. Koch, Sussex County Prosecutor, attorney; Ms. Brenner, of counsel and on the brief).
SUPERIOR COURT OF NEW JERSEY
Defendant Daniel R. Ziolkowski appeals an August 2, 2016 order granting the State's motion to compel production of witness statements obtained by the defense. We vacate and remand.
According to the parties' briefs, on December 24, 2014, L.C. was driving behind defendant's car, the vehicles stopped, and defendant exited his car and approached L.C. The indictment alleged defendant possessed a knife, threatened to kill L.C., terrorized her, and damaged her personal property. The indictment charged defendant with two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a), (b); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).
Defense counsel was appointed to represent defendant. The State gave the defense discovery including the statements of possible witnesses. The defense investigator interviewed possible witnesses to the incident, including witnesses the State may call at trial. He recorded the State witnesses' statements in interoffice memoranda to defense counsel (the "witness statements").1
At the November 17, 2015 status conference, the trial court ordered the defense to provide discovery of witness statements within twenty-one days. Subsequently, defense counsel stated she did not intend to disclose the witness interviews until she decided at trial whether to use the statements. At the March 9, 2016 pretrial conference, the court again ordered the defense to provide the witness statements of the State's witnesses, and set a June 7, 2016 trial date. In an April 25, 2016 letter and a May 3, 2016 e-mail, the trial prosecutor asked defense counsel to forward the witness statements, but received no reply.
The State moved to compel. On May 26, 2016, the trial court orally ordered defendant to provide the witness statements to the court for in camera review to see if they contained privileged or inculpatory material to be redacted before disclosure to the State. On June 1, 2016, the court issued an order requiring defendant to provide the witness statements to the court for review and redaction of inculpatory or work product material.2
The trial court conducted an in camera review of the witness statements in the presence of defense counsel, and redacted information it determined was work product or inculpatory. On August 2, 2016, the court granted the State's motion to compel and ordered defendant to provide the redacted witness statements to the State. The court granted a ten-day stay to permit defendant to seek review by this court in advance of the November 29, 2016 trial date. Defendant did not file a motion for leave to appeal until August 17, 2016, when the prosecutor demanded the redacted witness statements be provided without further delay.
We granted leave to appeal and stayed the August 2, 2016 order. Defendant relies on his brief in support of his motion for leave to appeal, which raised the following arguments:
PUBLIC DEFENDER INVESTIGATOR'S NOTES TAKEN DURING STATE'S WITNESSES INTERVIEWS ARE WORK PRODUCT AND ARE THEREFORE PROTECTED BY ATTORNEY CLIENT PRIVILEGE AND ARE NOT DISCOVERABLE UNDER R. 3:13-3.
COMPELLING DEFENDANT TO DISCLOSE NOTES MADE  DURING INVESTIGATION OF CASE IN PREPARATION FOR TRIAL WOULD UNDERMINE ANY FURTHER INVESTIGATION THE DEFENSE ATTORNEY WOULD UNDERTAKE AND THEREFORE VIOLATES THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND ART 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION.
A STAY OF THE TRIAL COURT'S ORDER SHOULD BE GRANTED IN ORDER TO ADDRESS THIS ISSUE BEFORE THE TRIAL, WITHOUT THE REPORTS BEING DISCLOSED PRIOR TO A DECISION.
"A trial court's resolution of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion." State v. Stein, 225 N.J. 582, 593 (2016). We "need not defer, however, to a discovery order that is well 'wide of the mark,' or 'based on a mistaken understanding of the applicable law.'" State v. Hernandez, 225 N.J. 451, 461 (2016) (citations omitted). We must hew to our standard of review.
The State seeks turnover of certain memoranda by the defense investigator. According to defense counsel, this memoranda memorialized statements the investigator obtained from persons on the State's witness list. Thus, the applicable discovery rule is Rule 3:13-3(b)(2)(D). It provides that "[a] defendant shall provide the State with . . . written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the State may call as a witness at trial." Ibid.
Our Supreme Court upheld Rule 3:13-3(b)(2)(D), then designated Rule 3:13-3(b)(4), in State v. Williams, 80 N.J. 472, 478 (1979). The Court ruled "[t]he reciprocal discovery provision in R. 3:13-3 is sound." Ibid. "Discovery of such statements, or summaries, which defendant intends to use at trial, is entirely proper." Ibid.
The Court in Williams also held that Rule 3:13-3(b)(2)(D) "applies to written statements or memoranda reporting or summarizing the oral statements made by any witness whom the State may call as a witness at trial only in a situation where the defense intends to use the statement or memoranda at trial." Id. at 482.
[T]his sub-paragraph does not give the State access to statements or summaries of statements made by its witnesses to defense counsel during defense preparation for trial if defense counsel does not intend to use them at trial. To hold otherwise would infringe on a defendant's constitutional right to the effective assistance of counsel because of the chilling effect it would have on defense investigation. Defense counsel would be hesitant to make an in-depth investigation of the case for fear that inculpatory material would be disclosed which might have to be turned over to the State.
[Id. at 478-79 (emphasis added).]
The Court ruled "[o]nce counsel has determined not to use such statements of a State's witness at trial, the material is entitled to the protection of paragraph (c) of R. 3:13-3." Id. at 479.3
Thus, our Supreme Court in Williams held: (1) if the defense did not intend to use the memoranda at trial, disclosure was not required, and (2) if the defense did intend to use the memoranda at trial, disclosure was required and did not violate the constitution or the work product rule. Here, we face a third situation: (3) defense counsel declined to decide whether she intended to use the memoranda until trial.
Defense counsel's certification is notably silent on whether she intends to use the witness statements at trial. Defendant's brief states that "before the State's witnesses have begun their testimony the defense cannot determine whether the reports . . . will be used," but that "[a]t this time, defense believes that these notes will not be used." Defense counsel ultimately declined to change that position at appellate oral argument.
As set forth above, our Supreme Court in Williams emphasized how crucial it is that defense attorneys decide before trial whether or not they intend to use the witness statements of State witnesses at trial. Under Williams, it is improper for defense attorneys to decline to decide whether they intend to use such witness statements until trial. The Supreme Court emphasized that under Rule 3:13-3(b)(2)(D), "the State is entitled to know in advance what evidence a defendant intends to use at trial so that it may have a fair opportunity to investigate the veracity of such proof." Williams, supra, 80 N.J. at 478. "The purpose of [Rule 3:13-3(b)(2)(D)] is to avoid having the State confronted at trial for the first time with written statements or summaries of oral statements of its own witnesses which may be used to attack the veracity of the witnesses' courtroom testimony." Ibid.
The impropriety of delaying a decision until trial is further indicated by State v. Mingo, 77 N.J. 576 (1978), on which the Williams Court primarily relied. Williams, supra, 80 N.J. at 480. In Mingo, the Court required defense attorneys to make a timely decision before trial whether they intended to use expert reports at trial. The Court ruled "the fair and orderly administration of justice requires that the defense, if requested by the State in the course of discovery, indicate whether it has obtained any [expert] report" that it intended to use at trial. Mingo, supra, 77 N.J. at 585. "If the defense response is in the affirmative, discovery of the report must be granted to the State. If, however, the defense indicates it does not intend to use the report or the [expert's] testimony at trial, it is not discoverable." Id. at 585-86. The fair and orderly administration of justice similarly requires a timely pretrial choice by defense attorneys whether they intend to use memoranda of statements by State witnesses at trial. A defense counsel's refusal to do so on request contravenes the organizing principle of Williams.
Our Supreme Court in Williams anticipated that some defense attorneys would improperly decline to decide whether they intended to use memoranda of interviews until trial. "Prosecuting attorneys should not fear that our decision today may prompt defense attorneys to delay decisions as to whether or not to utilize statements of a State's witness until the trial has commenced, thus giving the defendant an unfair advantage." Williams, supra, 80 N.J. at 481-82. "Such 'mid-stream' decisions can be met by reference to R. 3:13-3(f) which gives the trial court ample authority to remedy situations in which there has been a failure to disclose material which is, or which becomes, discoverable. Such remedies include prohibiting the use of the material at trial." Id. at 482. Accord State v. Bradshaw, 195 N.J. 493, 503 (2008).
Therefore, we are compelled to conclude that where defense attorneys have failed, declined, or refused to decide whether they intend to use memoranda of interviews of State witnesses until trial has commenced, the proper course is not to order the production of the memoranda to the State, as here, but to apply the remedies in Rule 3:13-3(f) if the defense attempts to use the memoranda at trial. Under Rule 3:13-3(f), the court "may order such party to permit the discovery of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." Ibid.
In determining what remedy to impose for such improper "'mid-stream' decisions," Williams, supra, 80 N.J. at 482, trial courts may consider the reasons for defense attorneys' failure to indicate whether they intend to use such memoranda at trial. A defense counsel's intentional choice to "delay decisions as to whether or not to utilize statements of a State's witness until the trial has commenced" is evidence from which the trial court may conclude that the goal and effect was "giving the defendant an unfair advantage," lending support for a more potent remedy. Id. at 481-82. Further grounds for that conclusion arise if the defense counsel fails to answer a "request by the State [or the trial court] in the course of discovery, [to] indicate whether" the defense intended to use witness statements at trial. See Mingo, supra, 77 N.J. at 585. Moreover, if the issue of the disclosure of the statements is litigated before trial, and defense counsel still does not indicate whether counsel intended to use the statements at trial, any resulting uncertainty, delay, or interference with "the fair and orderly administration of justice" would provide additional grounds for imposing a more potent remedy. Ibid.
In general, in determining the appropriate remedy, "the trial court should consider: (1) the prejudice to the State; (2) the prejudice to the defendant; (3) whether other less severe sanctions are available to preserve the policy of the rule, such as a continuance or a mistrial to permit the State to investigate . . . ; and (4) whether the defendant's failure to give notice was willful and intended to gain a tactical advantage." See Bradshaw, supra, 195 N.J. at 507-08.4
"Absent a finding that the factors on balance favor preclusion, the interest of justice standard requires a less severe sanction." Id. at 508. "Moreover, in cases where there is evidence of an attorney's willful violation of the notice rule to gain an advantage, courts should consider a referral to the Office of Attorney Ethics." Ibid. Appellate courts "invest in trial courts broad discretion to determine the appropriate sanctions to be imposed for discovery-rule violations." State v. Marshall, 123 N.J. 1, 130 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993).
Given that defense counsel has declined to decide until trial whether she intended to use the witness statements at trial, we understand the trial court's inclination to order disclosure to the State. However, our Supreme Court in Williamsheld that disclosure could be ordered "only in a situation where the defense intends to use the statement or memoranda at trial," and that failure to decide should be addressed instead by the remedies in Rule 3:13-3(f). Williams, supra, 80 N.J. at 482. Thus, the trial court's order requiring disclosure of the redacted witness statements to the State was "'based on a mistaken understanding of the applicable law.'" Hernandez, supra, 225 N.J. at 461 (citation omitted). Accordingly, we are compelled to vacate the trial court's August 2, 2016 order to the extent it granted the State's motion and compelled production of the witness statements to the State.
The trial court's August 2, 2016 order reserved the issue of whether sanctions should be imposed. The court may consider that issue at an appropriate time on remand. If defense counsel persists in declining to state before trial whether she intends to use the witness statements at trial, and at trial the defense attempts to use the witness statements, then the court may exercise its "ample authority" under Rule 3:13-3(f) to provide a remedy, potentially including "prohibiting the use of the material at trial," if justified by the factors set forth in this opinion. Williams, supra, 80 N.J. at 482.5
Vacated and remanded. We do not retain jurisdiction.
1 According to the prosecutor's certification, defense counsel represented in July, September, and November 2015 that the witness statements would be provided to the State.
2 On June 8, 2016, we denied defendant's motion for leave to appeal, because disclosure to the State had not yet been ordered, only in camera review.
3 That paragraph, now designated Rule 3:13-3(d), provides that the "rule does not require discovery of a party's work product consisting of internal reports, memoranda or documents made by that party or the party's attorney or agents, in connection with the investigation, prosecution or defense of the matter."
4 In particular, trial courts should consider any unfairness from "having the State confronted at trial for the first time with written statements or summaries of oral statements of its own witnesses," and the need and ability of the State to have "a fair opportunity to investigate the veracity of such proof." Williams, supra, 80 N.J. at 478.
5 Given that defense counsel declined to state whether she intended to use the witness statements at trial, we find no abuse of discretion in the trial court's earlier orders requiring the written statements be provided to the court for in camera review and redaction. We uphold the redactions substantially for the reasons given by the court. Defendant does not argue the redacted statements contain inculpatory material, and defense counsel conceded in appellate oral argument that the redacted statements do not make clear which questions, if any, counsel directed the investigator to ask. To the extent defendant claims that the constitution or work product doctrine preclude disclosure of the redacted statements to the State even if defendant intends to use them at trial, such arguments were rejected in Williams, supra, 80 N.J. at 478-79. Defendant cites State v. Nunez, 436 N.J. Super. 70 (App. Div. 2014), and State v. Atkins, 405 N.J. Super. 392 (App. Div. 2009), but here the State represented it would not seek to call the defense investigator as a witness.