State v. Samander S. Dabas (069498) , 215 N.J. 114 ( 2013 )

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. Samander S. Dabas (A-109-11) (069498)
Argued March 11, 2013 -- Decided July 30, 2013
ALBIN, J., writing for a unanimous Court.
The issue in this appeal is whether the prosecutor’s office violated an established discovery rule when its
investigator destroyed his notes of a two-hour pre-interview of defendant and, if there was a violation, whether the
trial court abused its discretion in denying the defense an adverse-inference charge.
Defendant Samandar Dabas worked part-time at a Dollar City store in the South Brunswick Square Mall.
On August 24, 2004, Dabas brought his wife, Renu, with him to Dollar City where he was scheduled to work a shift.
At some point, Dabas left Renu stocking shelves while he went to a nearby liquor store to purchase a bottle of
Dewar’s Scotch. Back at the store, Dabas drank two coffee mugs of Scotch and water. At approximately 9:00 p.m.,
Dabas closed the store and walked with Renu to his parked minivan. As Dabas began driving out of the parking lot
with Renu seated beside him, the minivan struck a tree, causing the airbags to deploy. A short time later, witnesses
observed Renu’s unconscious body, half lying in the mall parking lot and half on the sidewalk. She was bleeding
from her mouth, nose, and ears. In the meantime, Dabas was seen moving between the opened hood of the minivan
and the driver’s seat, not paying any attention to his seriously injured wife.
Paramedics arrived at the scene and transported Renu to the hospital. Renu died of her injuries on August
27. The Medical Examiner determined that Renu died of blunt-force head injuries. After the ambulance left the
mall parking lot, at around 10:00 p.m., South Brunswick Patrol Officer Laszlo Nyitrai questioned Dabas. Dabas
smelled of alcohol and admitted to drinking alcohol, but could not explain what happened that night. Officer Nyitrai
arrested Dabas for driving while intoxicated and read him the Miranda rights. Dabas was transported to a hospital
where blood samples were taken. The samples were tested at a New Jersey State Police laboratory and showed a
blood alcohol content (BAC) of .209. At the approximate time his minivan struck the tree, Dabas’s BAC was
estimated to be .23 or almost three times above the statutory level defining a person as driving while intoxicated.
At police headquarters, Investigator John Dando of the Middlesex County Prosecutor’s Office conducted a
“pre-interview” of defendant, which – in accordance with the procedures of the prosecutor’s office – was not
electronically recorded. Dabas appeared “lucid” and “coherent.” As Dabas responded, Dando wrote down his
answers on a notepad. While on the stand recalling what was said during the pre-interview, Dando did not testify
from his notes. He had destroyed them more than a year after Dabas’s indictment in accordance with standard
protocols of his office. Instead, he referred to a February 15, 2006, typewritten final report into which he had
purportedly incorporated his notes. Dando explained that Dabas was asked “open-ended questions” and admitted to
drinking two coffee mugs of Dewar’s Scotch and water before entering the minivan and striking the tree. When
asked why he hit his wife, Dabas responded, “she made me mad.” Dabas explained to Dando that, following the
crash, Renu exited the minivan and refused to get back inside. Dabas explained that he drove the minivan toward
Renu “to teach her who the boss was” and that he intended “to bump her with the van.”
At around 5:15 a.m., the investigators took an approximately fifteen-minute tape-recorded statement from
Dabas. On tape, Dabas acknowledged again that he understood his Miranda rights. Dando then asked “mostly
leading” questions using his handwritten notes. On tape, Dando elicited from Dabas mostly damning, one-word
answers. Dabas was initially charged with aggravated assault. On August 28, a day after Renu’s death, Dabas was
charged with murder and with attempting to leave the scene of a fatal motor vehicle accident. More than a year after
the return of an indictment charging Dabas with murder, Dando completed a final report into which he purportedly
incorporated his interview notes and then destroyed those notes.
At trial, the State presented Dabas’s own words – his words in the pre-interview as recounted by Dando and
his one-word answers to Dando’s leading questions in the taped statement. The State argued that Dabas deliberately
drove his minivan into Renu with the purpose of inflicting serious bodily injury, thereby causing her death. The
defense argued that Renu’s injuries were not consistent with having been struck by a vehicle. The jury was
permitted to consider intoxication as a defense and the alternatives of aggravated manslaughter and manslaughter.
At the charge conference, the defense requested that the court instruct the jury that it could draw an adverse
inference from Dando’s destruction of his pre-interview notes. The State objected, arguing “that there’s no case law
in New Jersey that requires police officers in New Jersey to preserve notes.”
The trial court declined to give the adverse-inference charge, concluding that “the [S]tate is under no
obligation to preserve handwritten reports prepared by officers in the field.” The jury found Dabas guilty of both
murder and attempting to leave the scene of a fatal motor vehicle accident. Defendant appealed. The Appellate
Division reversed the murder conviction on the ground that the trial court erred in not giving the requested adverse-
inference charge. The panel affirmed the attempting-to-leave-the-scene conviction. The Supreme Court granted the
State’s petition for certification. 210 N.J. 217 (2012).
HELD: The prosecutor’s office violated its post-indictment discovery obligations under Rule 3:13-3, when its
investigator destroyed his notes of a two-hour pre-interview of defendant. The trial court abused its discretion in
denying defendant’s request for a charge that would have allowed the jury to draw an adverse inference from the
destruction of the interview notes more than a year after the return of the indictment.
1. “Once an indictment has issued, a defendant has a right to automatic and broad discovery of the evidence the
State has gathered in support of its charges.” State v. Scoles, ___ N.J. ___, ___ (2013) (slip op. at 22). The State
must tender discovery even without a request. Within the meaning of Rule 3:13-3(c)(2), there is little question that
Dando’s notes of Dabas’s pre-interview statements constituted discoverable material that the prosecutor was
required to make available to the defense. Defense counsel did not have to request discovery that the prosecutor was
obliged to produce, nor did defense counsel have to possess the foresight that one of the prosecutor’s investigators
was withholding interview notes of statements made by Dabas and intended to destroy them. By not providing the
notes to defense counsel, the prosecutor violated the clear rule governing post-indictment discovery. (pp. 23-27)
2. This Court has repeatedly disapproved of law enforcement officers discarding interview notes before the
prosecutor’s post-indictment discovery obligations become operative pursuant to Rule 3:13-3(b). In State v. Cook,
179 N.J. 533 (2004), and State v. Branch, 182 N.J. 338 (2005), the Court expressly disapproved of this “practice of
destroying contemporaneous notes.” In this case, the prosecutor’s office decided that this Court’s declarations were
mere “dicta” and that it was free to destroy contemporaneous interview notes both before and after indictment. The
prosecutor’s office is not at liberty to disregard a pronouncement of this Court, even if that pronouncement is
properly characterized as dictum. Nevertheless, the prosecutor’s obligation to abide by Rule 3:13-3(b) in the post-
indictment setting, which includes the production of interview notes, is not dicta. (pp. 27-32)
3. The danger of Investigator Dando destroying his contemporaneous interview notes should be self-evident. The
words in the interview report were filtered through an investigator who, understandably, had developed a distinct
view of the case. The potential for unconscious, innocent self-editing in transferring words, sentence fragments, or
full sentences into a final report is a real possibility. So is the potential for human error in the transposition of words
from notes into a report. By destroying his notes, Dando made himself the sole judge of what actually was
contained in his contemporaneous notes. If there were differences between the notes and the final report, Dabas had
a right to present them to the jury in his defense to the murder charge. (pp. 32-34)
4. An adverse-inference charge is one permissible remedy for a discovery violation, such as the destruction of
interrogation notes that should have been turned over to the defense. The charge is a remedy to balance the scales of
justice, even outside of the realm of a discovery violation. The same logic applies, perhaps with even greater force,
to the destruction of interrogation notes in the post-indictment stage. The trial court abused its discretion in not
giving the adverse-inference charge. The failure to give the charge was “clearly capable of producing an unjust
result.” R. 2:10-2. (pp. 34-37)
The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED for a new trial.
2
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’s opinion. JUSTICE
HOENS did not participate.
3
SUPREME COURT OF NEW JERSEY
A-109 September Term 2011
069498
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SAMANDER S. DABAS,
Defendant-Respondent.
Argued March 11, 2013 – Decided July 30, 2013
On certification to the Superior Court,
Appellate Division.
Nancy A. Hulett, Assistant Prosecutor,
argued the cause for appellant (Bruce J.
Kaplan, Middlesex County Prosecutor,
attorney).
Marcia H. Blum, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney).
Michael J. Williams, Deputy Attorney
General, argued the cause amicus curiae
Attorney General of New Jersey (Jeffrey S.
Chiesa, Attorney General, attorney).
JUSTICE ALBIN delivered the opinion of the Court.
Defendant Samander Dabas was convicted of the murder of his
wife based largely on statements he made to prosecutor’s
investigators in the early morning hours of August 25, 2004. An
investigator’s purposeful destruction of his notes taken during
two hours of Dabas’s interrogation is at the heart of the appeal
before us.
After Dabas’s arrest, Investigator John Dando of the
Middlesex County Prosecutor’s Office conducted a two-hour “pre-
interview” during which he asked Dabas open-ended questions and
recorded, in handwritten notes, Dabas’s answers. Then,
Investigator Dando -- using his interview notes -- conducted a
tape-recorded interrogation of Dabas, lasting approximately
fifteen minutes. During this abbreviated interrogation,
Investigator Dando asked Dabas leading questions that mostly
elicited one-word answers, some of which were highly
incriminating.
Dabas was indicted for murder and a related offense. At
the time of Dabas’s indictment, and for over one year
afterwards, Investigator Dando’s notes of Dabas’s statements
made during the two-hour pre-interview remained in the
prosecutor’s file. The prosecutor’s office did not provide
those notes to the defense as required by our discovery rule, R.
3:13-3,1 and case law, see State v. Marshall, 123 N.J. 1, 133-34
(1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.
2d 694 (1993). Instead, Investigator Dando prepared a final
1
Throughout this opinion, we refer to the version of the
discovery rule that was in effect during the relevant events in
this case. On January 1, 2013, the discovery rule was amended.
None of these amendments alter the analysis in this case.
2
typewritten report into which he purportedly incorporated his
contemporaneous interview notes. In the report, Investigator
Dando concluded that Dabas purposely killed his wife. With the
report completed, Dando destroyed his interview notes.
At trial, the court denied Dabas’s request for a charge
that would have allowed the jury to draw an adverse inference
from the destruction of the interview notes. The Appellate
Division reversed Dabas’s conviction based on the trial court’s
failure to give the adverse-inference charge.
We affirm the Appellate Division. After a defendant’s
indictment, as part of its discovery obligations, the
prosecution is obliged to provide to the defense any statement
made by the defendant that is memorialized in a police officer’s
notes. See R. 3:13-3. Our discovery rule and case law are
crystal clear on this point. Moreover, we have warned
prosecutors that we strongly disapprove of the destruction of
interview notes, even earlier in the investigative process. See
State v. Cook, 179 N.J. 533, 542 n.3 (2004); State v. Branch,
182 N.J. 338, 367 n.10 (2005). We sent that message with the
expectation that law enforcement officers would preserve their
contemporaneous notes of witness interviews. In State v. W.B.,
205 N.J. 588, 608 (2011), we left no doubt that law enforcement
officers must preserve their handwritten interview notes even
before the State is required to tender discovery to the defense
3
under Rule 3:13-3. W.B. covered the gap between the
investigation and a defendant’s indictment. See ibid.Here, we are not dealing with the destruction of interview
notes before an indictment -- the issue addressed in Cook,
Branch, and W.B. In this case, the prosecutor’s office
possessed the notes at a time when it was required to provide
them to the defense in accordance with Rule 3:13-3. In
violation of that rule, the prosecutor’s office withheld the
notes from the defense and then destroyed them. Whether the
precise words uttered by Dabas during the two-hour pre-interview
were fully and accurately incorporated into Dando’s final
report, just as they appeared in Dando’s handwritten notes, can
now never be known. By shredding those notes, Dando destroyed
evidence -- the best evidence of what Dabas said during two
hours of interrogation. Because of the flagrant violation of
the discovery rule, we hold that the trial court erred in
denying the defense an adverse-inference charge. That error was
“clearly capable of producing an unjust result,” R. 2:10-2, and
therefore a new trial must be granted.
I.
A.
On December 21, 2004, defendant Samander Dabas was charged
in a Middlesex County indictment with the first-degree
4
purposeful or knowing murder of his wife, Renu Dabas, N.J.S.A.
2C:11-3(a)(1) or (2), and the third-degree attempt to leave the
scene of a fatal motor vehicle accident, N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-5.1. The facts relevant to this appeal are
gleaned from Dabas’s twenty-four-day jury trial that began on
May 24 and concluded on July 9, 2007.
B.
Dabas immigrated to the United States from India
approximately twenty-five years ago and became a citizen of this
country and a New Jersey resident. Sometime in 2003, during a
trip to India, Dabas married Renu. Dabas returned to New Jersey
and made arrangements for his wife to secure a visa to enter the
United States. In late July 2004, when Renu arrived in New
Jersey, the newlyweds took up residence in the home of Dabas’s
sister and brother-in-law, Shushila and Jitander Khatri, in
South Brunswick.
Dabas worked full-time at a manufacturing company and part-
time at the Khatris’ Dollar City store in the South Brunswick
Square Mall. On August 24, 2004, Dabas awakened at
approximately 6:00 a.m. He and Renu spent the day together. At
approximately 5:00 p.m., Dabas brought Renu with him to Dollar
City where he was scheduled to work a shift. At some point,
Dabas left Renu stocking shelves while he went to a nearby
liquor store to purchase a bottle of Dewar’s Scotch. Back at
5
the store, Dabas drank two coffee mugs of Scotch and water. At
approximately 9:00 p.m., Dabas closed the store and walked with
Renu to his parked minivan. As Dabas began driving out of the
parking lot with Renu seated beside him, the minivan struck a
tree, causing the airbags to deploy.
A short time later, witnesses observed Renu’s unconscious
body, half lying in the mall parking lot and half on the
sidewalk. She was bleeding from her mouth, nose, and ears. In
the meantime, Dabas was seen moving between the opened hood of
the minivan and the driver’s seat. He was not paying any
attention to his seriously injured wife. What occurred in the
minutes between the minivan striking the tree and this surreal
scene would later be explained in a statement Dabas made to
prosecutor’s investigators.
When Officer Robert Jairdullo of the South Brunswick
Township Police Department arrived at the mall parking lot,
shortly after 9:25 p.m., Dabas was behind the wheel, attempting
to start the minivan. Officer Jairdullo approached Dabas, whose
eyes were red and glassy and whose breath smelled of alcohol.
Dabas admitted to Jairdullo that he had been drinking.
At about that time, a mall employee brought to the
officer’s attention that Renu’s body was sprawled over the curb.
Jairdullo immediately ran to the severely injured woman, who did
6
not appear to be breathing. Then, the officer secured Dabas in
his patrol car and returned to render first aid to Renu.
Paramedics arrived on the scene and transported Renu to
Princeton Medical Center. Later, she was transferred to Robert
Wood Johnson University Hospital where she died of her injuries
on August 27. The Middlesex County Medical Examiner’s Office
determined that Renu died of blunt-force head injuries.
After the ambulance left the mall parking lot, at around
10:00 p.m., South Brunswick Patrol Officer Laszlo Nyitrai
questioned Dabas, who was seated in the back of Officer
Jairdullo’s patrol car. Dabas smelled of alcohol and admitted
to drinking alcohol, but could not explain what had happened
that night. Officer Nyitrai placed Dabas under arrest for
driving while intoxicated and read him the Miranda rights.2
Dabas indicated to the officer that he did not wish to respond
to further questions. According to Officer Nyitrai, Dabas was
alert, lucid, and coherent throughout their exchange.
At approximately 10:48 p.m., Jairdullo and a fellow
officer, Michael Pellino, transported Dabas to a hospital to
obtain samples of his blood for drug and alcohol testing. On
the way, Officer Pellino read Dabas the Miranda warnings
2
Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630,
16 L. Ed. 2d 694, 726 (1966).
7
verbatim from a card. Dabas acknowledged that he understood his
rights. He was “calm, cooperative, polite, [and] coherent.”
While at the hospital, sometime before 11:52 p.m., a nurse
drew samples of Dabas’s blood, which were later tested at a New
Jersey State Police laboratory. At the time the samples were
taken, Dabas’s blood alcohol content (BAC) was .209. At 9:25
p.m., the approximate time his minivan struck the tree in the
mall parking lot, Dabas’s BAC was estimated to be .23, and at
9:45 p.m., his BAC reached a peak level of approximately .24.
In simple terms, when Dabas operated the minivan in the mall
parking lot, his BAC was almost three times above the statutory
level defining a person as driving while intoxicated. See
N.J.S.A. 39:4-50 (stating that operator drives “while under the
influence” if BAC is .08 or greater). From the hospital, the
officers took Dabas to South Brunswick Police Headquarters,
where he was detained.
C.
At approximately 11:00 p.m., Investigator John Dando of the
Fatal Accident Investigation and Prosecution Unit of the
Middlesex County Prosecutor’s Office arrived at the mall parking
lot to survey the scene. He was briefed by South Brunswick
police officers and made his own observations.
Dando’s investigation at the mall parking lot took
approximately two to two-and-a-half hours. Dando called
8
Lieutenant Raymond Forziati, the head of the Middlesex County
Prosecutor’s Homicide Unit, and reported that a “pedestrian was
struck by a vehicle . . . [and] that it may have been an
intentional act.” Lieutenant Forziati and another investigator
from the prosecutor’s office, Todd Gerba, joined Dando at the
scene. After concluding their work there, Investigators Dando
and Gerba, Lieutenant Forziati, and Officer Nyitrai drove to
South Brunswick Police Headquarters, arriving at approximately
2:30 a.m.
At approximately 3:00 a.m. on August 25, 2004, Dando,
Gerba, and Nyitrai entered a conference room where Dabas was
being held without restraints. They introduced themselves, and
Gerba read Dabas the Miranda warnings from a card. Dabas signed
and dated the card and verbally acknowledged that he understood
his rights.3
At trial, Dando testified that Dabas expressed his
willingness to speak about the events that led to his wife’s
injuries. Dando stated that Dabas smelled of alcohol, and “his
3
Officer Nyitrai testified that he advised Investigator Dando
at the scene that Dabas, after acknowledging his Miranda rights,
indicated that he did not wish to make a statement. Nyitrai
stated that this exchange took place before Dando spoke to
Dabas. On the other hand, Dando denied having this exchange
with Nyitrai. Dando declared that Nyitrai “did not say to me
that Mr. Dabas invoked his rights because if he did, knowing
what we knew that night, we would not have gone back and
questioned him.”
9
eyes were bloodshot and watery.” However, in Dando’s mind,
Dabas appeared not only “calm,” “cooperative,” and “very
attentive,” but also “lucid” and “coherent.” The investigators
and officer then conducted a “pre-interview,” which -- in
accordance with the procedures of the Middlesex County
Prosecutor’s Office -- was not electronically recorded.
During the approximately two-hour pre-interview, Dando
explained that Dabas was asked “open-ended questions”: “What
happened, what did you do next, where did this happen, questions
like that, telling him that we wanted to know things and then
allowing him to fill in those blanks.” As Dabas responded,
Dando wrote down his answers on a notepad. While on the stand
recalling what was said during the pre-interview, Dando did not
testify from his notes. He had destroyed them more than a year
after Dabas’s indictment. Instead, he referred to a typewritten
final report into which he had purportedly incorporated his
notes. Dando gave the following account.4
Dabas admitted to drinking two coffee mugs of Dewar’s
Scotch and water before entering the minivan and striking the
tree in the mall parking lot. When asked about the events
following the crash, Dabas’s “entire demeanor changed . . . .
He crossed his arms in front of him, and he looked directly down
4
Dando’s recounting of the pre-interview hews closely to his
typewritten final report. Dando referred to that report while
testifying.
10
at the ground,” and with reference to Renu, “he said, she wasn’t
there.” Dabas insisted he did not “know what happened. She
wasn’t there. She was there, but then she wasn’t.” Ultimately,
Dando asked Dabas directly, “why did you hit your wife[?]”
Dabas responded, “she made me mad.”
Dabas explained to Dando that, following the crash, Renu
exited the minivan and refused to get back inside even when
ordered to do so. As Renu began to run away, Dabas drove the
minivan toward her “to teach her who the boss was.” He intended
“to bump her with the van.” Dabas “struck Renu with the right
front side of his minivan” close to the storefronts in the mall.
The minivan then stalled and came to a rest. He was unable to
start the minivan again. Dabas “said . . . that he did not go
towards [Renu], and he did not look in her direction.” When
asked to explain his behavior, Dabas stated that he was scared.
At the conclusion of the two-hour pre-interview, Dabas
agreed to recite “the events of the evening” on tape. At
approximately 5:15 a.m., the two prosecutor’s investigators and
Officer Nyitrai took an approximately fifteen-minute tape-
recorded statement from Dabas.
On tape, Dabas acknowledged again that he understood his
Miranda rights. Investigator Gerba began by asking Dabas open-
ended questions about his background. However, Dando followed
up by asking “mostly leading” questions using his handwritten
11
notes. According to Dando, “I would read him basically what he
responded to earlier, and then he would respond yes or no.”
Dando explained his reason for proceeding in this manner: “I
already had his answers. They were written down on my notepad.
I basically asked him exactly the same question[s] that he had
answered and just to keep it flowing, to keep it . . . cohesive
and to not allow the tape to go back to being evasive.” Dando
stressed that the leading questions were formed from his pre-
interview notes. On tape, Dando elicited from Dabas mostly
damning, monosyllabic answers.
The following excerpt illustrates the nature of the leading
questions and answers:
[DANDO:] You saw her running away towards
the store.
[DABAS:] Uh-huh.
[DANDO:] At that point, do you feel that she
was being disrespectful to you? . . .
because she wouldn’t get in the van?
[DABAS:] No.
[DANDO:] Okay. Did it make you mad that she
didn’t get in the van?
[DABAS:] Yeah. I was pissed off.
[DANDO:] You were pissed off at her because
she didn’t get in.
[DABAS:] Right.
[DANDO:] So you saw her running away from
you. Correct?
12
[DABAS:] Right.
[DANDO:] And then you decided to go after
her. Correct?
[DABAS:] Right.
[DANDO:] And you went after her because you
wanted to bump her. Correct?
[DABAS:] Correct.
[DANDO:] And you wanted to show her that you
were the boss. Correct?
[DABAS:] Right.
Dando destroyed his handwritten, pre-interview notes from
August 24, 2004, more than a year and a half later -- after he
completed his final typewritten report on February 15, 2006. At
the time of their destruction, Dabas had been under indictment
for murder since December 2004. Dando explained that he
transposed his notes into the final report and then destroyed
5
the notes in accordance with standard protocols of his office.
At approximately 6:00 a.m. on August 25, 2004, after he
gave his formal taped statement, Dabas was charged with
aggravated assault. On August 28, a day after Renu’s death,
Dabas was charged with murder.
5
At oral argument before this Court, the Assistant Middlesex
County Prosecutor representing the State began her remarks by
stating that an investigator “wrote a report that was issued in
February of 2006. At the time he finished his report and it was
submitted, he destroyed the notes that he took during the pre-
interview of defendant at the police station. That was done in
accordance with police practice at the time.” (Emphasis added).
13
D.
Dabas’s trial began on May 24, 2007, and continued for more
than six weeks. The State and defense offered differing
theories of what likely occurred in the mall parking lot. No
eyewitnesses testified to the events that led directly to Renu’s
death. In addition to medical testimony about the cause of
Renu’s death and witness testimony about Dabas’s behavior while
Renu was lying critically injured in the parking lot, the State
presented Investigator Dando as an accident-reconstruction
expert. Perhaps most powerful of all, the State presented
Dabas’s own words -- his words in the pre-interview as recounted
by Dando and his one-word answers to Dando’s leading questions
in the taped statement. From this evidence, the State argued
that Dabas deliberately drove his minivan into Renu with the
purpose of inflicting serious bodily injury, thereby causing her
death.
The defense presented evidence in support of its theory
that Renu’s injuries were not consistent with having been struck
by a vehicle, including testimony from medical and forensic
experts and an accident-reconstruction expert. The defense
argued that her injuries could have been caused by airbag
deployment during the initial crash or by an accidental fall,
thereby raising reasonable doubt. Between the extremes of the
State’s argument that Dabas was guilty of purposeful or knowing
14
murder and the defense’s argument that Renu’s accidental death
compelled an acquittal, the jury was permitted to consider: (1)
intoxication as a defense; and (2) the alternatives of
aggravated manslaughter, N.J.S.A. 2C:11-4(a) (recklessly causing
death under circumstances manifesting extreme indifference to
human life), and manslaughter, N.J.S.A. 2C:11-4(b) (recklessly
causing death).
At the charge conference, the defense requested that the
court instruct the jury that it could draw an adverse inference
from Dando’s destruction of his pre-interview notes. The
defense argued that the most damaging evidence came from Dando’s
testimony about the purported admissions made by Dabas during
the pre-interview. The defense proposed, as a template, the
charge given in State v. Zenquis, 251 N.J. Super. 358, 370 (App.
Div. 1991) (“The court instructed the jury that if it found [the
investigating officer] destroyed his notes at a time when he
knew the case was proceeding to trial, it could infer that the
notes contained information inconsistent with the witness’s
trial testimony.”), aff’d on other grounds, 138 N.J. 84 (1993).
The prosecutor objected to the charge, arguing “that
there’s no case law in New Jersey that requires police officers
in New Jersey to preserve notes,” and dismissed as dictum the
footnote in Branch, supra, 182 N.J. at 367 n.10 (“We register
our displeasure that police officers engage in the seemingly
15
routine practice of destroying their contemporaneous notes of
witness interviews after the preparation of formal reports.”).
The prosecutor also emphasized that Dabas’s attorneys “were
involved in the case relatively early, . . . well before Dando’s
final report was written” and that they made no request that the
prosecutor preserve the notes. According to the prosecutor, the
failure of defense counsel to make such a request belied their
argument that the notes were of critical importance.
The trial court declined to give the adverse-inference
charge. The court concluded that “the [S]tate is under no
obligation to preserve handwritten reports prepared by
officers in the field.”
E.
The jury found Dabas guilty of both murder and attempting
to leave the scene of a fatal motor vehicle accident. The court
sentenced Dabas to a thirty-year term of imprisonment without
parole eligibility on the murder conviction and to a concurrent
five-year term on the attempting-to-leave-the-scene conviction.6
6
We do not detail issues raised during the trial that are not
germane to this appeal. For example, after a five-day hearing,
the trial court rejected Dabas’s motion to suppress his pre-
interview and taped statements on the ground that he was
intoxicated, not provided an interpreter, and not advised of the
charges against him. The court found that Dabas knowingly,
intelligently, and voluntarily waived his Miranda rights and
that his statements were not the product of coercion.
16
II.
In an unpublished opinion, the Appellate Division reversed
the murder conviction on the ground that the trial court erred
in not giving the requested adverse-inference charge.7 The
Appellate Division, however, affirmed the attempting-to-leave-
the-scene conviction.
In reversing the murder conviction, the appellate panel
reasoned that “there was a realistic potential that Dando's
contemporaneous notes could have assisted defense counsel in
challenging Dando’s testimony and the truthfulness of [Dabas’s]
recorded statement.” The panel stressed that with the notes the
defense “might well have been effective in persuading the jury
to acquit [Dabas] of murder” and instead convict him of a lesser
offense, such as aggravated manslaughter or vehicular homicide.
The panel also observed that, at the time of Dabas’s trial,
“the Supreme Court had twice expressed its disapproval of the
police practice of routinely destroying notes,” citing Branch,
supra, 182 N.J. at 367 n.10 and Cook, supra, 179 N.J. at 542
n.3. It referred to our more recent decision in W.B., supra,
205 N.J. at 607, in which we stated that we “need not take much
7
The Appellate Division determined that there was sufficient
credible evidence in the record to support the trial court’s
finding that Dabas’s statements were knowingly, intelligently,
and voluntarily made to law enforcement officers. We do not
review those portions of the Appellate Division opinion that are
not relevant to the issue on which we granted certification.
17
time to state, once more, that law enforcement officers may not
destroy contemporaneous notes of interviews and observations at
the scene of a crime after producing their final reports.” The
panel rejected the State’s argument that W.B. had no
applicability to the present case merely because W.B. deferred
implementing the requirement that law enforcement retain and
disclose contemporaneous notes recording witness statements,
citing id. at 608. The panel emphasized that in W.B. this Court
stated that its “holding regarding the discovery obligation is
merely a reiteration of existing law,” quoting ibid. It pointed
out that because the defendant in W.B. did not request an
adverse-inference charge, he was not entitled to the charge,
citing ibid. In contrast, here, the panel noted, defense
counsel requested and should have been given the charge because
“Dando took extensive notes” of the pre-interview and then used
those notes “during the recorded interview to ask a series of
questions, many of them leading, that elicited highly
incriminatory responses.” Accordingly, the panel remanded for a
new trial on the murder and lesser-included charges.
This Court granted the State’s petition for certification
to address the Appellate Division’s ruling that Dabas was
entitled to an adverse-inference charge and its overturning of
his murder conviction. State v. Dabas, 210 N.J. 217 (2012). We
18
also granted the motion of the Attorney General to participate
as amicus curiae.
III.
A.
The State urges this Court to reverse the Appellate
Division and reinstate Dabas’s murder conviction. The State
argues that in 2006 -- when Dando prepared his report and
destroyed his notes -- “there was no precedent from this Court
that required the police to retain their notes.” It
acknowledges that in both Cook, decided in 2004, and in Branch,
decided in 2005, this Court “expressed its disapproval of the
prevalent practice among the police to destroy notes after a
report was written.” However, the State contends that these
“footnotes were dicta, and did not constitute precedent.” The
State acknowledges that in W.B., decided in 2011, the Court
ordered that notes of witness statements compiled into final
reports must be retained and disclosed by the prosecutor.
However, the State maintains that the Court did not intend W.B.
to be retroactively applied, otherwise it would not have “ruled
that implementation of the retention and disclosure of police
notes would be delayed for thirty days in order to allow the
State sufficient time to educate police officers.” The State
also stresses that the defense “could have requested
19
Investigator Dando’s notes or moved to have them preserved since
it took the investigator until February 2006 to write his
report.”8 The State further contends that because “defendant was
present during the pre-interview[,] . . . he could have taken
the stand to rebut or challenge” Investigator Dando’s account.
B.
The Attorney General, appearing as amicus curiae, presents
many of the same arguments advanced by the State and urges that
W.B. be given prospective effect to this case. The Attorney
General reasons that “[a]fter Cook and Branch, defense attorneys
were on notice not that an officer’s notes were necessarily
discoverable under Rule 3:13-3, but that they had every right to
ask law enforcement to retain such notes.” In that regard, the
Attorney General points out that although Investigator Dando’s
notes existed for eighteen months after the pre-interview,
defense counsel did not request them. In a letter to this
Court, the Attorney General admits that, pursuant to Rule 3:13-
3, “an officer’s notes concerning a defendant’s statement or a
witness’ statement, never incorporated into a report, were
discoverable.”
8
At oral argument, the Assistant Middlesex County Prosecutor
representing the State stated that prior to W.B., for purposes
of the discovery rule, the prosecutor’s office apparently made
no distinction whether notes incorporated into a final report
were destroyed before or after an indictment.
20
The Attorney General makes several additional arguments.
He contends that (1) Investigator Dando did not exhibit bad
faith in destroying his notes, the notes were not exculpatory
and material, and Dabas had the opportunity to challenge the
taped statement and Dando’s credibility at trial; (2) the
failure to give an adverse-inference charge did not likely alter
the outcome of the case given the overwhelming evidence of
Dabas’s guilt; and (3) the trial court’s decision not to give an
adverse-inference charge did not constitute an abuse of
discretion.
C.
In urging an affirmance, Dabas contends that the Appellate
Division correctly construed W.B. as reinforcing existing law
and not announcing a new rule of law. He asserts that the W.B.
Court declined to apply its holding to that case because, unlike
here, the defendant did not request an adverse-inference charge.
However, even if W.B. announced a new rule of law, Dabas insists
that retroactive application of that rule is appropriate, citing
State v. Natale, 184 N.J. 458, 493 (2005). Dabas claims that
the destruction of the notes denied him an opportunity to
persuade the jury to convict him of a lesser offense than
murder. He states that “[t]he use of an adverse-inference
instruction as a sanction for a discovery violation is not new
to the legal arsenal” and that the failure to give that charge
21
in this case was prejudicial. He concludes that “regardless of
whether the Court finds that W.B.’s approval of such a
[negative-inference] charge applies retroactively to [his]
appeal, it must find that the trial judge’s refusal to give the
charge constitutes reversible error.”
IV.
A.
The Court must resolve several issues of law. First, we
must decide whether the prosecutor’s office violated an
established discovery rule when its investigator destroyed his
notes of the two-hour pre-interview of Dabas. If there was a
violation of the discovery rule, we must then determine whether
the trial court was empowered to impose the sanction of an
adverse-inference charge. The Court reviews these legal issues
de novo, owing deference to neither the Appellate Division nor
the trial court. See State v. Gandhi, 201 N.J. 161, 176 (2010)
(“It is a well-established principle of appellate review that a
reviewing court is neither bound by, nor required to defer to,
the legal conclusions of a trial or intermediate appellate
court.”) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502,
549 (2002)). On the other hand, if the trial court had the
legal authority to give the adverse-inference charge, we must
then answer whether the trial court abused its discretion in not
22
doing so. Marshall, supra, 123 N.J. at 134 (“The choice of
sanctions appropriate for discovery-rule violations is left to
the broad discretion of the trial court.”).
In this case, Investigator Dando destroyed his interview
notes more than a year after Dabas’s indictment. Therefore, we
must apply to these facts the State’s post-indictment discovery
obligations and determine whether the State was required to
disclose Dando’s interview notes to the defense.
B.
“Once an indictment has issued, a defendant has a right to
automatic and broad discovery of the evidence the State has
gathered in support of its charges.” State v. Scoles, ___ N.J.
___, ___ (2013) (slip op. at 22) (citing Pressler & Verniero,
Current N.J. Court Rules, comment 3 on R. 3:13-3 (2013)
(“‘Defendant’s post-indictment right to discovery is
automatic.’”)). The State must tender discovery even without a
request. See R. 3:9-1(a) and R. 3:13-3(b); Pressler & Verniero,
supra, comment 3.1 on R. 3:13-3(c). Rule 3:13-3(b) -- entitled
post-indictment discovery -- provided:
A copy of the prosecutor’s discovery shall
be delivered to the criminal division
manager’s office, or shall be available at
the prosecutor’s office, within 14 days of
the return or unsealing of the indictment.
Defense counsel shall obtain a copy of the
discovery from the criminal division
manager’s office, or the prosecutor’s
23
office, no later than 28 days after the
return or unsealing of the indictment.
[R. 3:13-3(b) (emphasis added).]9
We have recently characterized “pretrial discovery in
criminal matters post-indictment” as “an open-file approach.”
Scoles, supra, ___ N.J. at ___ (slip op. at 21). The Supreme
Court Committee that recommended the version of Rule 3:13-3(b)
that was in effect at the time of Dabas’s case reported: “The
statewide practice is that the prosecutor and defense counsel
exchange discovery automatically without a request. Thus, the
language requiring discovery only after a request is
unnecessary.” Recommendations of the Supreme Court Committee on
Criminal Practice on Rules Necessary to Implement the Criminal
Division Operating Standards, Commentary, 137 N.J.L.J. 54, 95
(May 9, 1994). The prosecutor’s obligation to provide discovery
within fourteen days of the return of the indictment was self-
executing.
We must next consider whether Dando’s notes fell within the
realm of discoverable material that the prosecutor was required
to make available to the defense. For that answer, we turn to
the substantive provisions of the discovery rule. Rule 3:13-
3(c)(2) and (7) provide:
9
The current version of Rule 3:13-3(b)(1), among other things,
requires the State to make discovery available to the defense
within seven days of the return or unsealing of the indictment.
24
The prosecutor shall permit defendant to
inspect and copy or photograph the following
relevant material if not given as part of
the discovery package under section (b):
. . . .
(2) records of statements or
confessions, signed or unsigned, by the
defendant or copies thereof, and a
summary of any admissions or
declarations against penal interest
made by the defendant that are known to
the prosecution but not recorded;
. . . .
(7) record of statements, signed or
unsigned, by such persons or by co-
defendants which are within the
possession, custody or control of the
prosecutor and any relevant record of
prior conviction of such persons... .
[(Emphasis added).]
Within the meaning of Rule 3:13-3(c)(2), there is little
question that Dando’s notes of Dabas’s pre-interview statements
were “records of statements . . . by the defendant.”
In Marshall, supra, this Court imposed severe sanctions on
the State for its failure to provide the defense with witness
interview notes before trial. 123 N.J. at 133-34. The
discovery violation in Marshall came to light during the
prosecutor’s cross-examination of the defendant. Id. at 133.
The defendant was asked whether he had made certain statements
to four persons who had been listed as potential trial
witnesses. Ibid. Defense counsel objected when it became
25
apparent that “the prosecutor was obviously using interview
notes that had not been produced during discovery.” Id. at 133-
34. We determined that “the trial court correctly ruled that
the interview notes were discoverable pursuant to Rule 3:13-
3(a)(8).” Id. at 134 (citing R. 3:13-3(a)(8) (1991) (requiring
the production of “police reports which are within the
possession, custody, or control of the prosecutor”)). Although
the trial court denied the defendant’s mistrial motion, it
“precluded the State from using the [interview] notes for
further cross-examination and from calling any of the four
persons as rebuttal witnesses concerning any subject covered by
the interview notes.” Ibid. Because the prosecutor’s use of
the notes during cross-examination did not elicit any
prejudicial admissions, we found that “the sanction[s] imposed
[were] a proper and measured response to the nondisclosure of
the interview notes.” Ibid.Needless to say, contemporaneous notes of a defendant’s own
statements to law enforcement officers should rank even higher
on the scale of importance than witness interview notes. As
noted earlier, the Attorney General concedes that, under Rule
3:13-3, “an officer’s notes concerning a defendant’s statement
or a witness’ statement, never incorporated into a report, were
discoverable.” Significantly, in this case, Dabas’s pre-
interview statements -- recorded in Investigator Dando’s notes -
26
- had not been incorporated into a report on December 21, 2004,
the day the Middlesex County Grand Jury returned the murder
indictment, or fourteen days after the return of the indictment
when the prosecutor was required to deliver discovery to the
criminal division manager’s office or make discovery available
in the prosecutor’s office. See R. 3:13-3(b). Thus, even by
the terms set forth in the Attorney General’s letter, the pre-
interview notes should have been turned over to the defense. At
the time of the prosecutor’s mandatory and self-executing
disclosure requirements, the notes had not been incorporated
into a report. Defense counsel did not have to request
discovery that the prosecutor was obliged to produce, nor did
defense counsel have to possess the foresight that one of the
prosecutor’s investigators was withholding interview notes of
statements made by Dabas and intended to destroy them.
At trial, the court did not require the prosecutor to
explain why interview notes of Dabas’s statements that remained
in the prosecutor’s possession and control until February 2006 -
- more than one year following the indictment -- were not given
to the defense. In this case, the prosecutor violated the clear
rule governing post-indictment discovery.
C.
Because the discovery rule commanded the field in this
case, this Court’s pre-indictment cases on retention of
27
interview notes are not critical to our analysis. Suffice it to
say, we have repeatedly disapproved of law enforcement officers
discarding interview notes before the prosecutor’s post-
indictment discovery obligations become operative pursuant to
Rule 3:13-3(b).
In Cook, supra, a murder case prosecuted by the Middlesex
County Prosecutor’s Office, the defendant was interrogated
multiple times by that office’s investigators who did not
electronically record the questioning and then destroyed their
notes. 179 N.J. at 542-46. In that case, we noted:
“Apparently, once each officer prepared his report, he destroyed
his notes from the interrogation sessions, a practice that is
apparently common, but one that we disapprove of.” Id. at 542
n.3 (emphasis added). It bears mentioning that Cook led first
to our establishing “a committee to study and make
recommendations on the use of electronic recordation of
custodial interrogations,” id. at 562, and later to a rule that
required the electronic recordation of custodial interrogations
in cases involving serious offenses, see R. 3:17; Pressler &
Verniero, supra, comment on R. 3:17.
In Branch, supra, an investigating detective destroyed his
contemporaneous notes of his interview with a child, thus
leaving no record of whether the questioning might have been
“unintentionally suggestive.” 182 N.J. at 366-67. That
28
detective and another officer also admitted to discarding their
crime-scene notes after completing their reports. Id. at 367
n.10. “We register[ed] our displeasure that police officers
engage in the seemingly routine practice of destroying their
contemporaneous notes of witness interviews after the
preparation of formal reports.” Ibid. Again, we expressly
disapproved of this “practice of destroying contemporaneous
notes,” citing not only Cook, supra, 179 N.J. at 542 n.3, but
also People v. Wallace, 565 N.E.2d 471, 472 (N.Y. 1990), which
held that police officers are required to preserve their notes.
Branch, supra, 182 N.J. at 367 n.10.
Both Cook and Branch preceded Investigator Dando’s decision
to destroy his contemporaneous notes of his interview of Dabas.
The prosecutor’s office decided that this Court’s declarations
were mere “dicta” and that it was free to destroy
contemporaneous interview notes both before and after
indictment. However, the prosecutor’s office is not at liberty
to disregard a pronouncement of this Court, even if that
pronouncement is properly characterized as dictum. See State v.
Breitweiser, 373 N.J. Super. 271, 282-83 (App. Div. 2004) (“[A]s
an intermediate appellate court, we consider ourselves bound by
carefully considered dictum from the Supreme Court.”), certif.
denied, 182 N.J. 628 (2005); Barreiro v. Morais, 318 N.J. Super.
461, 468 (App. Div. 1999) (“We recognize these rulings are
29
dictum. Nonetheless, we consider ourselves bound by them.”);
Kenney v. Scientific, Inc., 204 N.J. Super. 228, 247 (Law Div.
1985) (“Whether dictum or not, it is such a strong statement of
underlying social policy by the State’s highest court that a
trial judge should not arrogate unto himself the right to
disregard it.”). Appellate and trial courts consider themselves
bound by this Court’s pronouncements, whether classified as
dicta or not. That any prosecutor’s office would disregard this
Court’s express disapproval of the practice of destroying
contemporaneous interrogation notes on the ground that the
Court’s words are dicta is deeply troubling. Nevertheless, the
prosecutor’s obligation to abide by Rule 3:13-3(b) in the post-
indictment setting, which includes the production of interview
notes, is not dicta.
In W.B., supra, we made clear that the destruction of
interview notes, even before the return of an indictment, would
leave prosecutor’s facing a potential adverse-inference charge.
205 N.J. at 607-09. In W.B., we observed: “We need not take
much time to state, once more, that law enforcement officers may
not destroy contemporaneous notes of interviews and observations
at the scene of a crime after producing their final reports.”
Id. at 607 (emphasis added) (citations omitted). We set forth
the obvious policy reasons for retention of interview notes:
30
[T]he possibility of a misrecording is
precisely why the notes must be maintained -
- a defendant, protected by the
Confrontation Clause and our rules of
discovery, is entitled to test whether the
contemporaneous recording is accurate or the
final report is inaccurate because of some
inconsistency with a contemporaneous
recordation. It is for the jury to decide
the credibility of the contemporaneous or
other recordation made while an
investigation is on-going prior to
preparation of a formal report.
[Id. at 607-08.]
In W.B. we stated that “our holding regarding the discovery
obligation is merely a reiteration of existing law.” Id. at
609. Nonetheless -- out of an abundance of caution -- we
deferred implementation of the note-retention “requirement for
thirty days in order to allow prosecutors sufficient time to
educate police officers.” Id. at 608. After the thirty-day
period, we held that “if notes of a law enforcement officer are
lost or destroyed before trial, a defendant, upon request, may
be entitled to an adverse inference charge.” Ibid.10 We clearly
signaled that the note-retention requirement would apply
prospectively to pre-indictment cases beginning after the
thirty-day grace period in W.B. We therefore disagree with the
Appellate Division that W.B. retroactively applies to or
otherwise governs this case.
10
In W.B. the defendant did not request an adverse-inference
charge before jury instructions, and therefore we held he was
not entitled to the instruction. W.B., supra, 205 N.J. at 609.
31
Cook, Branch, and W.B. addressed a problem not covered by
Rule 3:13-3(b) and (c) -- the retention of notes until
indictment when the prosecutor’s obligation of disclosure
becomes mandatory and self-executing. Those three cases were
gap-fillers. This case, in contrast, is governed squarely by
the discovery rule. Under Rule 3:13-3(b), the prosecutor’s
office did not have discretion to withhold interview notes in
its file after the return of the indictment. Those notes should
have been disclosed to the defense. Instead, they were
destroyed more than one year after the return of the indictment
by an investigator who, in his report, concluded that Dabas was
guilty of murder.
D.
The danger of Investigator Dando destroying his
contemporaneous interview notes of August 25, 2004 -- leaving no
record of what he included in his final report -- should be
self-evident. When Dando completed his final report in February
2006, the indictment against Dabas had been returned one year
earlier and the prosecutor’s office was set to try Dabas for
murder. Dando expressed the view in his final report that Dabas
was guilty of murder. Incorporating notes into a report is not
necessarily a process of cutting and pasting. The words in the
interview notes were filtered through an investigator who,
understandably, had developed a distinct view of the case. The
32
potential for unconscious, innocent self-editing in transferring
words, sentence fragments, or full sentences into a final report
is a real possibility. So is the potential for human error in
the transposition of words from notes into a report. The
meaning and context of Dabas’s words as recorded in the notes
may have been subject to differing interpretations where Dando
saw only one. Language nuances may have been lost as Dando
translated them into the final report. The slightest variation
of a word or a phrase can either illuminate or obscure the
meaning of a communication. See State v. Kociolek, 23 N.J. 400,
421-22 (1957) (“‘Verbal precision is of course important to the
correct understanding of any verbal utterance, whether written
or oral, because the presence or absence or change of a single
word may substantially alter the true meaning of even the
shortest sentence.’” (quoting Wigmore, Evidence, §§ 1056,
2094)); see also Model Jury Charge (Criminal), “Statements of
Defendant” (June 14, 2010), available at
http://www.judiciary.state.nj.us/criminal/charges/non2c024a.pdf.
By destroying his notes, Dando made himself the sole judge
of what actually was contained in his contemporaneous notes.
Dando all but admitted that the use of leading questions -- and
monosyllabic answers by Dabas -- permitted a neat and coherent
narrative of the events in the mall parking lot. The leading-
question technique, according to Dando, did not allow Dabas to
33
“go back to being evasive,” a suggestion that the pre-interview
narrative was not so neat and coherent. If there were
differences between the notes and the final report, Dabas had a
right to present them to the jury in his defense to the murder
charge.
V.
Sanctions for violating the discovery rule are set forth in
Rule 3:13-3(g). The sanction rule provides:
If at any time during the course of the
proceedings it is brought to the attention
of the court that a party has failed to
comply with this rule or with an order
issued pursuant to this rule, it may order
such party to permit the discovery or
inspection 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.
11
[R. 3:13-3(g) (emphasis added).]
An adverse-inference charge is one permissible remedy for a
discovery violation, such as the destruction of interrogation
notes that should have been turned over to the defense. See,
e.g., W.B., supra, 205 N.J. at 597, 609 (holding “an adverse
11
The 2013 amendment to Rule 3:13-3 redesignated paragraph (g)
as paragraph (f) and, among other things, removed the language
“or inspection” from paragraph (g).
34
inference charge may be given when a police officer destroys his
or her investigatory notes before trial”).
The adverse-inference charge is a remedy to balance the
scales of justice, even outside of the realm of a discovery
violation. For example, a defendant may be entitled to such a
charge if the State fails to present a witness who is within its
control, unavailable to the defense, and likely to give
favorable testimony to the defendant. See State v. Clawans, 38
N.J. 162, 170-75 (1962). The failure to present the witness
might “raise[] a natural inference that the [State] . . . fears
exposure of those facts would be unfavorable to [it].” Id. at
170.
The same logic applies, perhaps with even greater force, to
the destruction of interrogation notes in the post-indictment
stage. See Zenquis, supra, 251 N.J. Super. at 370 (“[I]f [the
jury] found [the investigating officer] destroyed his notes at a
time when he knew the case was proceeding to trial, it could
infer that the notes contained information inconsistent with the
witness’s trial testimony.”).12 Dabas did not seek to suppress
12
The criminal adverse-inference charge is analogous to the
spoliation inference which may be drawn when evidence has been
concealed or destroyed in civil cases. The spoliation inference
-- like the adverse-inference charge -- “allows a jury in the
underlying case to presume that the evidence the spoliator
destroyed or otherwise concealed would have been unfavorable to
him or her.” Rosenblit v. Zimmerman, 166 N.J. 391, 401-02, 407
(2001). The spoliation inference follows from a centuries-old
35
Dando’s testimony about the pre-interview. Instead, his counsel
requested an adverse-inference charge as the remedy for the
destruction of Dando’s notes. Under the circumstances of this
case, the trial court abused its discretion by not giving that
charge.
Balancing the scales required the court to instruct the
jury that the State had a duty to produce the pre-interview
notes to the defense following the return of the indictment.
Because the State made the notes unavailable, the court should
have advised the jury that it was permitted to draw an inference
that the contents of the notes were unfavorable to the State.
Whether to draw such an inference falls within the jury’s
discretion, after it gives full consideration to the nature of
the discovery violation, the explanation given by the State for
the violation, and any other relevant factors that would bear on
the issue.
VI.
A.
In light of the clear violation of the discovery rule and
the probable prejudice caused to Dabas by the destruction of the
rule followed by courts: “‘omnia praesumuntur contra
spoliatorem,’ which means ‘all things are presumed against the
destroyer.’” Id. at 400-01 (citations omitted).
36
interview notes, we conclude that the trial court abused its
discretion by not giving the adverse-inference charge. We agree
with the Appellate Division “that there was a realistic
potential that Dando’s contemporaneous notes could have assisted
defense counsel in challenging Dando’s testimony” and the
integrity of the tape-recorded statement. We also agree with
the Appellate Division that “much of the direct evidence of
Dabas’s intent and state of mind came from Dando’s testimony
about the unrecorded pre-interview interrogation and the
recorded statement based largely on leading questions.”
Dando’s credibility was a critical factor in determining
whether Dabas was guilty of murder or some lesser offense, such
as aggravated manslaughter or manslaughter. The jury should
have been told that the prosecutor’s office was required under
the discovery rule to provide Dabas with the pre-interview notes
and that their destruction allowed it to draw an inference that
the notes would have been favorable to the defense.
We cannot say that such a charge would not have altered the
outcome of the jury’s verdict. The failure to give the charge
was “clearly capable of producing an unjust result.” R. 2:10-2.
B.
For the reasons expressed, we affirm the Appellate
Division’s reversal of Dabas’s murder conviction and remand for
a new trial.
37
CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and
JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in
JUSTICE ALBIN’s opinion. JUSTICE HOENS did not participate.
38
SUPREME COURT OF NEW JERSEY
NO. A-109 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
SAMANDER S. DABAS,
Defendant-Respondent.
DECIDED July 30, 2013
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRM AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6