State v. Brian Tier(077328) (Mercer County and Statewide) , 228 N.J. 555 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Brian Tier (A-73-15) (077328)
Argued January 30, 2017 -- Decided May 2, 2017
Timpone, J., writing for a unanimous Court.
In this appeal, the Court considers a question of first impression: What are a defendant’s post-indictment
reciprocal discovery obligations to the State regarding a defense witness’s oral statements?
On March 7, 2012, officers responded to a report from a neighbor that C.L. and defendant Brian Tier, her
boyfriend, were in a physical struggle. One officer knocked on C.L.’s front door, heard what sounded like a small
dog barking, and knocked again, directing the occupants of the residence to open the door. The officer then heard
the sound of a woman screaming, “Help! Help! He’s trying to kill me!” and kicked down the door. Upon entry, the
officers observed defendant on top of C.L., his hands around her throat, strangling her. The officers arrested
defendant and, while en route to the hospital, obtained a detailed statement from C.L. regarding the events. A
Mercer County grand jury returned an indictment, charging defendant with first-degree kidnapping and first-degree
criminal attempt to commit murder.
At a status conference, the State took issue with the witness list defendant produced because it listed the
names of three men but did not provide identifiers, addresses, or synopses of their anticipated testimony—which the
State alleged was in violation of Rule 3:13-3(b)(2)(C). In response, defendant agreed to produce identifiers and
addresses but argued against providing synopses. Defendant asserted that the Rule requires that synopses be
produced only if they have already been reduced to writing. Defense counsel affirmed that no witness statement
summaries had been prepared.
The trial court ordered the defense to produce witness synopses and to create them if they had not been
previously drafted. The court specifically ordered defense counsel to provide the State with the reason why the
witnesses are on the list. The Appellate Division summarily reversed the trial court’s order, reasoning that a
criminal defendant’s disclosures are carefully limited by the strictures of Rule 3:13-3(b)(2).
The trial court granted a motion to stay defendant’s trial pending the Court’s ruling on the motion. The
Court granted the State’s motion for leave to appeal. 226 N.J. 205 (2016).
HELD: A plain reading of Rule 3:13-3(b)(2)(C) requires production of witness statements only if those statements
have already been reduced to writing. Nothing in the rules precludes a trial court from ordering a defendant to
designate witnesses as either character or fact witnesses, however. The Court encourages practitioners to participate in
cooperative discovery in order to ease the burden on all parties involved.
1. Rule 3:13-3(b)(2)(C) reads, in pertinent part: “A defendant shall provide the State with all relevant material,
including, but not limited to . . . the names, addresses, and birthdates of those persons known to defendant who may
be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing
their oral statements.” This Rule has not seen much review. (p. 8)
2. In State v. DiTolvo, 273 N.J. Super. 111 (Law Div. 1994), the State moved to bar a witness’s testimony after the
defendant refused to provide a written summary of the proposed testimony. The court reasoned that the criminal
justice system had a strong interest in “broad and extensive discovery.” Finding no competing interest in favor of
defendant, and failing to discuss a criminal defendant’s special constitutional status, the court ordered the defendant
to produce a summary of the witness’s proffered testimony or the court would bar the testimony. (pp. 8-9)
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3. State v. Williams, 80 N.J. 472 (1979), dealt with a collateral issue: whether summaries already in existence were
required to be disclosed if the defendant had no intention of using them at trial. Because the request related to
inculpatory evidence, the defendant had no duty to produce those documents. The Court recognized that
“[e]vidential materials obtained in the exercise of [defense counsel’s] professional responsibility are so interwoven
with the professional judgments relating to a client’s case, strategy and tactics that they may be said to share the
characteristics of an attorney’s ‘work product,’” and that “[b]lanket discovery of the fruits of this kind of legal
creativity and preparation may impact directly upon the freedom and initiative which a lawyer must have in order to
fully represent his client.” Id. at 479. (pp. 9-10)
4. In addition to the confidentiality concerns raised by disclosure of work product, one of the underlying principles
on which our criminal justice system is based is that a defendant “has a fundamental right to remain silent.”
Williams v. Florida, 399 U.S. 78, 112, 90 S. Ct. 1893, 1912, 26 L. Ed. 2d 446, 483 (1970) (Black, J., concurring in
part and dissenting in part). This defendant agreed to reciprocal discovery, implicating the Rule and necessitating its
review. See R. 3:13-3(b)(1). (p. 10)
5. Rule 3:13-3(b)(2)(C) plainly requires a defendant to produce “the names, addresses, and birthdates of those
persons known to defendant who may be called as witnesses at trial.” Written statements, however, need only be
produced if they exist. This result is unquestionably mandated by the language “if any,” which modifies “written
statements.” The language following “if any” does not alter that result; it merely indicates that memoranda either
reporting or summarizing a witness’s oral statements constitute discoverable written statements for purposes of Rule
3:13-3(b)(2)(C). (pp. 11-12)
6. The trial court’s order was based upon a mistaken understanding of the applicable law, requiring reversal.
However, the Court stops short of finding that the entire order was an abuse of discretion. Nothing in the court rules
prevents the trial court from obligating defendant to identify a witness as either a character or fact witness. To the
contrary, requiring a defendant to identify the category of witness not only alleviates some of the State’s concern
regarding the burden of investigating a never-ending list of potential witnesses, but falls in line with the Court’s
policy encouraging cooperation in the discovery process. (pp. 12-13)
The judgment of the Appellate Division is AFFIRMED as MODIFIED. The matter is REMANDED to
the trial court for entry of a discovery order consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.
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SUPREME COURT OF NEW JERSEY
A-73 September Term 2015
077328
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
BRIAN TIER,
Defendant-Respondent.
Argued January 30, 2017 – Decided May 2, 2017
On appeal from the Superior Court, Appellate
Division.
Laura C. Sunyak, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Angelo J. Onofri,
Mercer County Prosecutor, attorney).
Alison S. Perrone argued the cause for
respondent (Law Office of Robin Kay Lord,
attorney; Ms. Lord on the brief).
Sarah E. Ross, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Christopher S.
Porrino, Attorney General, attorney; Lila B.
Leonard, on the brief).
JUSTICE TIMPONE delivered the opinion of the Court.
This appeal raises an issue of first impression for this
Court: What are a defendant’s post-indictment reciprocal
discovery obligations to the State regarding a defense witness’s
oral statements?
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Defendant Brian Tier was charged with the kidnapping and
attempted murder of his girlfriend, C.L. In response to a
discovery request, defendant produced only a list of the names
of the three witnesses the defense intended to call at trial,
with no additional information. The State countered with a
request that defendant amend the disclosure to include dates of
birth and addresses, as well as a proffer of each witness’s
expected testimony. Defendant refused. The trial court ordered
the disclosure; the Appellate Division reversed.
It is a longstanding principle that the preference for
“mutually broad discovery” in civil cases “is generally
unobtainable” in criminal matters, in which we must strike a
careful balance between the interests promoted by discovery and
the need to preserve a defendant’s constitutional rights. State
v. Cook, 43 N.J. 560, 563 (1965).
We find that a plain reading of Rule 3:13-3(b)(2)(C)
requires production of witness statements only if those
statements have already been reduced to writing. Nothing in the
rules precludes a trial court from ordering a defendant to
designate witnesses as either character or fact witnesses,
however. Accordingly, we affirm the Appellate Division’s
reversal of the discovery order as it relates to the witness
statements and modify the panel’s determination that the trial
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court improperly ordered defendant to designate fact and
character witnesses.
I.
This matter comes to us by interlocutory appeal; no trial
has commenced. The underlying allegations have been gleaned
from the State’s briefing.
On March 7, 2012, officers from the Hamilton Police
Department responded to a report from a neighbor that C.L. and
defendant were in a physical struggle outside her residence near
her red Toyota Scion. When the officers arrived, they found the
Scion but no signs of a struggle.
Officer Aaron Kulak, accompanied by Officer Ryan Bitner,
knocked on her front door. Kulak heard what sounded like a
small dog barking and knocked again, directing the occupants of
the residence to open the door. Kulak then heard the sound of a
woman screaming, “Help! Help! He’s trying to kill me!” In
response to the continuing screams for help, Kulak kicked down
the door. Upon entry, Kulak and Bitner observed defendant on
top of C.L., his hands around her throat, strangling her. The
officers arrested defendant and, while en route to the hospital,
obtained a detailed statement from C.L. regarding the events.
On May 16, 2012, a Mercer County grand jury returned an
indictment, charging defendant with first-degree kidnapping,
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N.J.S.A. 2C:13-1, and first-degree criminal attempt to commit
murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1.
At a status conference held on September 25, 2015, the
State took issue with the witness list defendant produced
because it listed the names of three men but did not provide
identifiers, addresses, or synopses of their anticipated
testimony -- which the State alleged was in violation of Rule
3:13-3(b)(2)(C). In response, defendant agreed to produce
identifiers and addresses but argued against providing synopses.
Defendant asserted that the Rule requires that synopses be
produced only if they have already been reduced to writing.
Defense counsel affirmed that no witness statement summaries had
been prepared.
The trial court, in an oral decision, ordered the defense
to produce witness synopses and to create them if they had not
previously been drafted. The court specifically ordered defense
counsel to provide the State with the “reason why they’re on
[defendant’s] witness list[,] [a]nd[,] if they are character
witnesses, how long that witness has known the defendant and
what kind of relationship or under what circumstances did they”
know defendant.
On February 17, 2016, on an interlocutory appeal, the
Appellate Division summarily reversed the trial court’s order,
reasoning that, unlike the broad discovery obligation in civil
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cases, a criminal defendant’s disclosures are carefully limited
by the strictures of Rule 3:13-3(b)(2).
In order to preserve the State’s appeal of the Appellate
Division order, the trial court granted a motion to stay
defendant’s trial pending this Court’s ruling on the motion. We
granted the State’s motion for leave to appeal. 226 N.J. 205
(2016). We also granted the Attorney General leave to appear as
amicus curiae.
II.
A.
The State submits that the Appellate Division’s order
narrowed the confines of Rule 3:13-3(b)(2)(C) to “an
unreasonable and impermissible degree.” The State highlights
New Jersey’s preference for “broad reciprocal discovery” and
policy against gamesmanship and surprise. Recognizing that its
requested result is not commanded by the plain language of the
Rule, the State urges this Court to follow the Rule’s reciprocal
discovery “spirit.” The State buttresses its request with the
theory that, if the Court applies the plain language of the
Rule, defense attorneys would not reduce witness statements to
writing, necessitating mid-trial adjournments to permit the
State time to investigate or, in extreme cases, exclusion of
defense witnesses. Finally, the State acknowledges that its
entitlement to discovery is limited by constitutional
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constraints, but asserts that requiring defendant to put into
writing what he already knows does not trigger such a concern.
B.
Defendant contends that the court rules relating to
criminal prosecutions, as written, are carefully balanced
between the dual goals of truth seeking and protection from
false prosecution. Defendant notes that ensuring proper balance
has led to a significant limitation of prosecutorial discovery
from the defense. With that backdrop, defendant concludes the
trial court erred in attempting to level the playing field by
imposing identical discovery obligations on the State and the
defense, when constitutional and procedural rights are
purposefully skewed in a defendant’s favor. Defendant concludes
that requiring the creation of a statement or summary for
prosecutorial use both infringes on his constitutional rights
and impairs his ability to make tactical judgments.
C.
The Attorney General reiterates the State’s practicality
argument against limiting defendant’s obligation under the Rule,
theorizing that a defendant would hereinafter be encouraged to
take only oral statements from potential witnesses. The
Attorney General also contends that: (1) such a decree places
an onerous burden on the State to investigate every witness on
the defense’s list, contrary to the principle that the outcome
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of litigation should depend on its merits; (2) a narrow reading
of the Rule will result in delays in trial calendars, resulting
from the State’s increased investigative need and inability to
raise issues before trial; (3) this outcome is best served by
limited discovery, which should be the exception and not the
rule; and (4) recent precedent from this Court has expanded the
State’s discovery obligations, so a defendant’s obligation
should likewise expand.
III.
Inherent in this Court’s “power to make rules concerning
the administration, practice and procedure of the courts of this
State” is the broad power to interpret court rules. State v.
Leonardis, 71 N.J. 85, 108-09 (1976). Our review of the meaning
or scope of a court rule is de novo; we do not defer to the
interpretations of the trial court or Appellate Division unless
we are persuaded by their reasoning. State v. Hernandez, 225
N.J. 451, 461 (2016). While this Court generally shows
substantial deference to a trial court’s discovery order, not
interfering with it absent an abuse of discretion, we do “not
defer . . . to a discovery order . . . ‘based on a mistaken
understanding of the applicable law.’” State v. Stein, 225 N.J.
582, 593 (2016) (quoting Hernandez, supra, 225 N.J. at 461).
A.
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This case turns on the interpretation of Rule 3:13-3.
Addressing a defendant’s obligations, the Rule reads, in
pertinent part:
A defendant shall provide the State with all
relevant material, including, but not limited
to . . . the names, addresses, and birthdates
of those persons known to defendant who may be
called as witnesses at trial and their written
statements, if any, including memoranda
reporting or summarizing their oral
statements.
[R. 3:13-3(b)(2)(C).]
This Rule has not seen much review. Indeed, a lone
published Law Division opinion discussed the breadth of
discovery obligations under the Rule. See State v. DiTolvo, 273
N.J. Super. 111, 115-17 (Law Div. 1994) (discussing same
relevant language in prior version of Rule, which has since been
renumbered). In DiTolvo, the State moved to bar a witness’s
testimony after the defendant refused to provide a written
summary of the witness’s proposed testimony. Id. at 113. The
defendant reasoned that because the witness never gave a written
statement, there was nothing to produce. Ibid. The court found
the Rule ambiguous and subject to multiple interpretations,
requiring the court to weigh the competing interests. Id. at
115-16. The court reasoned that the criminal justice system
generally had a strong interest in “broad and extensive
discovery,” the purpose of which “is to prevent surprise,
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eliminate gamesmanship, and afford a party an opportunity to
obtain evidence and research law in anticipation of evidence and
testimony which an adversary will produce at trial.” Id. at 115
(citing State v. Williams, 80 N.J. 472, 482 n.2 (1979)
(Schreiber, J., dissenting)). Finding no competing interest in
favor of defendant, and failing to discuss a criminal
defendant’s special constitutional status, the court ordered the
defendant to produce a summary of the witness’s proffered
testimony or the court would bar the testimony. Id. at 117.
While this Court has addressed the discovery obligations of
a defendant in a criminal proceeding, we have yet to opine on
the issue squarely before us. Williams, supra, dealt with a
collateral issue: whether summaries already in existence were
required to be disclosed if the defendant had no intention of
using them at trial. 80 N.J. at 475. Because the request
related to inculpatory evidence, we held that the defendant had
no duty to produce those documents. Ibid. Clearly, a holding
to the contrary would chill the defense’s investigation and
infringe on the defendant’s right to effective assistance of
counsel. Id. at 478.
In so holding, we recognized that “[e]vidential materials
obtained in the exercise of [defense counsel’s] professional
responsibility are so interwoven with the professional judgments
relating to a client’s case, strategy and tactics that they may
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be said to share the characteristics of an attorney’s ‘work
product,’” and that “[b]lanket discovery of the fruits of this
kind of legal creativity and preparation may impact directly
upon the freedom and initiative which a lawyer must have in
order to fully represent his client.” Id. at 479.
In addition to the confidentiality concerns raised by
disclosure of work product, one of the underlying principles on
which our criminal justice system is based is that a defendant
“has an absolute, unqualified right to compel the State to
investigate its own case, find its own witnesses, prove its own
facts, and convince the jury through its own resources,” and
“[t]hroughout the process[,] the defendant has a fundamental
right to remain silent, in effect challenging the State at every
point to: ‘Prove it!’” Williams v. Florida, 399 U.S. 78, 112,
90 S. Ct. 1893, 1912, 26 L. Ed. 2d 446, 483 (1970) (Black, J.,
concurring in part and dissenting in part). A defendant who
agrees to reciprocal discovery relinquishes the right to “do
nothing.” This defendant agreed to reciprocal discovery,
implicating the Rule and necessitating its review. See R. 3:13-
3(b)(1).
B.
The concerns we expressed in Williams and the principles
espoused by Justice Black infuse our discussion of Rule 3:13-
3(b)(2)(C). In interpreting a court rule, we apply the ordinary
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canons of statutory interpretation. Wiese v. Dedhia, 188 N.J.
587, 592 (2006). “Accordingly, . . . the analysis must begin
with the plain language of the rule.” Ibid. The rules should
not be read in isolation; rather, they must be read “in context
with related provisions so as to give sense to the [court rules]
as a whole.” Ibid. (alteration in original) (quoting DiProspero
v. Penn, 183 N.J. 477, 492 (2005)). Where a rule contains both
general provisions and specific provisions, the latter control
over the former. Clymer v. Summit Bancorp, 171 N.J. 57, 69-70
(2002).
Contrary to the Law Division’s holding in DiTolvo, supra,
273 N.J. Super. at 115, we find the language in Rule 3:13-
3(b)(2)(C) to be unambiguous. The Rule plainly requires a
defendant to produce “the names, addresses, and birthdates of
those persons known to defendant who may be called as witnesses
at trial.” R. 3:13-3(b)(2)(C). Written statements, however,
need only be produced if they exist. Ibid. This result is
unquestionably mandated by the language “if any,” which modifies
“written statements.” Ibid. The language following “if any”
does not alter that result; it merely indicates that memoranda
either reporting or summarizing a witness’s oral statements
constitute discoverable written statements for purposes of Rule
3:13-3(b)(2)(C). However, if the defense has not memorialized
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the witness statement in some form of writing there is nothing
to produce.
The State urges that the Rule is ambiguous and therefore
this Court must resort to rules of statutory interpretation. To
this end, the State argues that the preliminary sentence in the
Rule creates a presumption in favor of discovery, limited only
by the subsections thereunder. Even if we found the Rule to be
ambiguous, that argument fails. The preamble of subsection
(b)(2) is general and reads “[a] defendant shall provide the
State with all relevant material, including, but not limited to,
the following.” R. 3:13-3(b)(2). Each subsection then lists
specific limits on that discovery. See generally R. 3:13-
3(b)(2)(A) to -(E). Subsection (b)(2)(C)’s demarcation between
oral statements and statements reduced to writing controls over
the general broad discovery provision of the opening. See
Clymer, supra, 171 N.J. at 69-70.
Based on the plain reading of the Rule, we find the trial
court abused its discretion when it ordered defendant to create
a proffer of evidence in the present case. Undeniably, the Rule
does not require defendant to generate a written witness
statement where none exists. See R. 3:13-3(b)(2)(C). The trial
court’s order, therefore, was based upon a “mistaken
understanding of the applicable law,” requiring reversal. See
Stein, supra, 225 N.J. at 593.
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We stop short, however, of finding that the entire order
was an abuse of discretion. Nothing in the court rules prevents
the trial court from obligating defendant to identify a witness
as either a character or fact witness. To the contrary,
requiring a defendant to identify the category of witness not
only alleviates some of the State’s concern regarding the burden
of investigating a never-ending list of potential witnesses, but
falls in line with this Court’s policy encouraging cooperation
in the discovery process.
In sum, we find the portion of the trial court’s order
requiring the assemblage of witness statements to be an abuse of
discretion as it was an apparent deviation from the applicable
Rule. We approve, however, of the trial court’s order requiring
defense counsel to identify only the category of witnesses as
fact or character. We encourage practitioners to participate in
cooperative discovery in order to ease the burden on all parties
involved.
IV.
The judgment of the Appellate Division reversing the trial
court’s discovery order is affirmed as modified, and the matter
is remanded to the trial court for entry of a discovery order
consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s
opinion.
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