DCPP VS. L.M.W. AND J.R.IN THE MATTER OF THE GUARDIANSHIP OF J.R.(FG-19-0019-14, SUSSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2805-15T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MICHAEL A. DOTRO,
Defendant-Respondent.
_______________________________________
Argued October 27, 2016 – Decided February 27, 2017
Before Judges Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
No. 14-06-0755.
Nancy A. Hulett, Assistant Prosecutor,
argued the cause for appellant (Andrew C.
Carey, Middlesex County Prosecutor,
attorney; Russell J. Curley, Assistant
Prosecutor, and Ms. Hulett, of counsel and
on the brief).
Robert T. Norton argued the cause for
respondent.
PER CURIAM
The State, through the Middlesex County Prosecutor's Office
(MCPO or State), challenges a July 20, 2015 Law Division
decision allowing defendant Michael A. Dotro's expert to inspect
a truck in the MCPO's possession out of the presence of the
State.1 Finding the court exercised its sound discretion, we
affirm the trial court's decision, but remand the matter to add
certain provisions to the remedy the trial court ordered.
I
Following the investigation of an early morning fire at the
home of Mark Anderko, a captain in the Edison Police Department,
defendant Michael Dotro was indicted for second-degree
aggravated arson, N.J.S.A. 2C:17-1(a); five counts of first-
degree attempted murder, N.J.S.A. 2C:11-3(a)(1) and 2C:5-1;
third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1); third-
degree unlawful possession of a destructive device, N.J.S.A.
2C:39-3(a); fourth-degree retaliation for past official action,
N.J.S.A. 2C:27-5; and third-degree hindering apprehension or
prosecution, N.J.S.A. 2C:29-3(a)(7). Defendant's wife, Alycia
Dotro, was also indicted for fourth-degree hindering
apprehension or prosecution, N.J.S.A. 2C:29-3(a)(7).
1
There is no written order. The terms of the Law Division's
decision are set forth on the last two pages of the July 20,
2015 written decision.
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During its investigation, the MCPO discovered the
following. The fire started between 3:00 a.m. and 4:00 a.m. At
the site of the fire, the MCPO found two plastic, one-gallon
jugs on Anderko's front porch. The jugs smelled of gasoline,
and the remnants of blue rags were found in each. The
investigators suspected the fire was started by igniting the
rags, which served as wicks. One jug had a QuickChek and the
other a Pocono Springs label. Also found at the scene were
towels and hair samples. Approximately one month before the
fire, defendant, an officer in the Edison Police Department, was
angry at Anderko for putting him on an undesirable shift as a
form of discipline.
During the execution of a search warrant of defendant's
home, the MCPO found blue rags and towels similar to those found
at the crime scene, a five-gallon jug containing approximately
two-and-a-half gallons of gasoline, and empty one-gallon water
jugs smelling of gasoline. One of these empty jugs had a Pocono
Springs label on it; another was not labeled but was determined
to have come from QuickChek. A QuickChek label was found in a
wastebasket in defendant's home. Some of the towels recovered
from the crime scene were surgical towels, which matched those
used by a surgical center where defendant's wife worked.
Located under the front seat of defendant's 2001 Dodge Ram
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pickup truck was a blue rag similar to those found at the crime
scene; the rag smelled of gasoline.
Review of a QuickChek surveillance video near Anderko's
home showed, minutes before the fire erupted at his home, a
dark-colored pickup truck made a right turn out of the QuickChek
parking lot and headed in the direction of Anderko's residence.
In order to get to defendant's home, one would make a left turn
out of the parking lot. The video further revealed a dark-
colored truck drive by the QuickChek in the opposite direction
toward defendant's home fifteen minutes later. Investigators
timed the drive from the QuickChek to Anderko's home and back
again to the QuickChek, pausing one minute at Anderko's home,
the estimated time the perpetrator expended to place and ignite
the rags in the two jugs. The round trip took fifteen minutes
and thirty-three seconds.
Some of the evidence uncovered by the MCPO tended to favor
defendant or diminished the significance of the State's
evidence. Of the two hair samples recovered at the crime scene,
one was lost and the other did not match defendant's hair. A
fingerprint recovered from one of the jugs found at Anderko's
home did not belong to defendant. Defendant kept gasoline at
his home to power his snow blower and generator, providing a
reason he stored gasoline in his home. One taking the most
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direct route from Anderko's to defendant's home would not pass
by the QuickChek.
After viewing the QuickChek surveillance video, defendant
filed a motion to permit him and his expert to examine
defendant's truck, which remains in the possession of the MCPO,
out of the presence of law enforcement personnel. The State
objected, arguing a representative from the MCPO needed to be
present, so the State could account for the truck's chain of
custody and protect the integrity of the evidence.
In support of his motion, defendant submitted a letter to
the trial court, ex parte, explaining his reasons for examining
the truck out of the presence of the MCPO staff. After
reviewing that letter, the trial court determined permitting any
representative of the MCPO to be present during defendant's
examination would compromise defendant's ability to prepare a
defense.
Specifically, the court found a MCPO representative would
be able to discern from defendant's expert's examination the
"nature of [defendant's] defense." Therefore, the presence of a
MCPO representative would impermissibly inhibit defendant from
preparing a defense. The court also took into consideration
defendant consented to waive any claim the chain of custody was
interrupted or compromised, and further agreed to videotape the
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entire examination so there would be a record available to the
State if it found or suspected the truck had been altered during
his examination. After weighing the competing interests of the
parties, the court found defendant's need to prepare a defense
outweighed the State's concerns about the interruption in the
chain of custody, and granted defendant's motion. However, the
court imposed the following conditions:
1. The truck will be transferred to a
location designated by the defense for the
inspection to take place. Notice shall be
provided to the MCPO no less than three
weeks prior to the selected date for
inspection. The court will be notified of
the inspection location, date, and time.
2. Members and representatives of the MCPO
will not be permitted to be present at the
time of the defense's inspection.
3. Two retired Superior Court Judges are to
be present to proctor the inspection of the
truck. The defense provided a list of five
retired Superior Court Judges. The MCPO was
to select two of the judges to oversee the
inspection. At a hearing to discuss this
issue, the representatives of the MCPO, on
the record, challenged the probity and
rectitude of the retired judges. Since the
Prosecutor's Office is not inclined to make
the selection, the Court will do so and
order the Honorable William Wertheimer and
the Honorable William Drier to be present
throughout the entirety of the inspection
and they shall be authorized to stop the
inspection and report to the Court any
violation of this Court's Order with respect
to the nature and scope of the inspection.
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The cost for these judicial proctors shall
be borne by the defense.
4. The entire inspection shall be
continuously videotaped. The defense shall
hire someone to be present to videotape the
entire proceeding from the arrival of the
truck to the selected location until its
departure. The entire cost shall be borne
by the defense. The following shall be
submitted to the Court and made a part of
the Court record: (1) the recording and (2)
the name, address and telephone number of
the individual who created the recording.
The two judicial proctors shall insure that
this portion of this Order shall be complied
with.
5. Dotro, defense counsel, and all necessary
members of the defense team are permitted to
be present during the inspection. The
identities of all individuals present during
the inspection shall be provided to the
Court no later than three days before
inspection.
6. This Order shall be stayed for ten days
from today's date to allow the Prosecutor to
file its appeal.
In a footnote, the court further ordered:
Prior to any inspection, Dotro will be
required to place his waiver [to any claim
to the truck's chain of custody], under
oath, on the record. Unless it is
completely unequivocal, no inspection shall
take place. Also, any waiver given by Dotro
will become law of the case and binding on
any successor attorney.
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II
On appeal, the State raises the following point for our
consideration:
THE TRIAL COURT ABUSED ITS DISCRETION BY
ORDERING THE STATE TO BE ABSENT DURING
DEFENDANT'S INSPECTION OF TANGIBLE EVIDENCE
IN THE STATE'S CONTROL AND BY APPOINTING TWO
RETIRED JUDGES TO STAND IN AS "JUDICIAL
PROCTORS" DURING THE INSPECTION.
In its brief, the State raises the same arguments it did
before the trial court. It also claims "the safeguards to
protect defendant's constitutional rights to pursue defenses[,]"
would not be jeopardized by the State's presence during the
examination. The State does not identify the safeguards to
which it is referring, other than to note it would position its
representative during the examination to preclude him or her
from hearing any discussions between defendant's counsel and his
expert.
Defendant notes he does not know whether the examination of
the truck will provide exculpatory or inculpatory evidence. As
he argued before the trial court, a representative of the State
cannot be present because he or she will be able to intuit from
what the expert examines what defendant seeks to learn from the
inspection. If a representative is present, defendant will have
to choose between foregoing discovery that may uncover
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exonerating evidence or risk providing the State with
incriminating evidence.
Defendant maintains videotaping the expert's examination of
the truck will adequately protect the State's chain of custody
concerns and preserve the integrity of the truck. Once the
examination is over, the videotape will be given to one of the
judges for delivery to the court. In the event the State
detects or suspects the truck was compromised during the
examination, the State will have the option of making an
application to the court to view the tape. Defendant also notes
both he and defense counsel waived any objection to the chain of
custody on the record.
"We accord substantial deference to a trial court's
issuance of a discovery order and will not interfere with such
an order absent an abuse of discretion." State v. Hernandez,
225 N.J. 451, 461 (2016) (citing State ex rel. A.B., 219 N.J.
542, 554 (2014)). An appellate court should "defer to a trial
court's resolution of a discovery matter, provided its
determination is not so wide of the mark or is not 'based on a
mistaken understanding of the applicable law.'" A.B., supra,
219 N.J. at 554. However, a trial court's interpretations of
the law are subject to de novo review. See ibid.; In re
Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 163
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(2013) (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J.
366, 378 (1995)).
Criminal defendants are entitled to broad discovery. State
v. Scoles, 214 N.J. 236, 252 (2013). "To advance the goal of
providing fair and just criminal trials, we have adopted an
open-file approach to pretrial discovery in criminal matters,"
and our court rules implement that approach. Ibid. Courts also
have the power to order discovery when justice requires. State
ex rel W.C., 85 N.J. 218, 221 (1981). "Whether discovery should
be expanded involves exercising judicial discretion or, put
another way, balancing the beneficial effects of discovery
against its disadvantages." Id. at 224.
"The right to counsel afforded criminal defendants by the
Sixth Amendment of the United States Constitution and by Art. I,
par. 10 of the New Jersey Constitution comprehends the right to
the effective assistance of counsel." State v. Mingo, 77 N.J.
576, 581 (1978). The right to effective assistance of counsel
"includes the right to conduct a reasonable investigation to
prepare a defense" in a criminal proceeding, A.B., supra, 219
N.J. at 547, including the right "to the assistance of experts
to aid in the accused's defense." Scoles, supra, 214 N.J. at
258.
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While engaged in his or her investigation, defense counsel
must "be permitted full investigative latitude in developing a
meritorious defense on his client's behalf." Mingo, supra, 77
N.J. at 576. Investigative latitude would be circumscribed if,
in order to conduct such discovery, defense counsel had to risk
revealing to the State potentially injurious information to
defendant's position and information defendant does not intend
to use at trial. Id. at 582; see also State v. Nunez, 436 N.J.
Super. 70, 78 (App. Div. 2014) (observing "[h]aving to risk the
State's introduction of the results of a defense investigation
unconstitutionally hampers the ability of defense counsel to
render effective representation to clients.").
Here, the trial court properly considered the State's and
defendant's competing concerns. After weighing these opposing
positions, the trial court reasonably determined defendant's
need to examine the truck out of the presence of a MCPO
representative trumped the State's concerns. Nevertheless, the
trial court ordered measures to protect the State's evidence.
Although we remand to include additional conditions to
govern the examination, the conditions ordered by the trial
court are otherwise adequate and appropriate. They address the
State's concerns about safeguarding the evidence, yet provide a
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mechanism for defendant to examine evidence while sheltering him
from providing inculpatory evidence to the State.
We conclude the State's remaining arguments are without
sufficient merit to warrant discussion in a written opinion, see
R. 2:11-3(e)(2), and note the case law upon which the State
relies to support its position is distinguishable from the facts
in this case and, thus, inapposite.
Finally, we remand this matter to the trial court to
include the following additional conditions for defendant to
examine the truck. The videographer shall keep the camera on
the expert's hands, which shall be in view at all times, and the
recording shall be clear enough to discern what he does to the
truck. In addition, because the camera will be focused on the
expert's hands, another camera or cameras shall be pointed at
the rest of the truck so any activity at or near other parts of
the truck will be recorded during the entire examination. The
judges shall ensure all recordings shall be delivered to the
court.
Affirmed in part and remanded in part in accordance with
this opinion. We do not retain jurisdiction.
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