State of New Jersey v. Habeeb Robinson ( 2017 )


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  •                         RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1891-16T2
    STATE OF NEW JERSEY,
    APPROVED FOR PUBLICATION
    Plaintiff-Appellant,
    February 8, 2017
    v.
    APPELLATE DIVISION
    HABEEB ROBINSON,
    Defendant-Respondent.
    _____________________________________
    Argued January 31, 2017 – Decided February 8, 2017
    Before Judges Reisner, Koblitz and Rothstadt.
    On appeal from the Superior Court of New
    Jersey, Law Division, Essex County, Complaint-
    Warrant No. W20160256160714.
    Frank J. Ducoat, Special Deputy Attorney
    General/Acting Assistant Prosecutor, argued
    the cause for appellant (Carolyn A. Murray,
    Acting Essex County Prosecutor, attorney; Mr.
    Ducoat, of counsel and on the brief).
    Elizabeth C. Jarit, Assistant Deputy Public
    Defender, argued the cause for respondent
    (Joseph E. Krakora, Public Defender, attorney;
    Ms. Jarit, of counsel and on the brief).
    Claudia Joy Demitro, Deputy Attorney General,
    argued the cause for amicus curiae Attorney
    General (Christopher S. Porrino, Attorney
    General, attorney; Ms. Demitro, of counsel and
    on the brief).
    Alexander Shalom argued the cause for amicus
    curiae American Civil Liberties Union of New
    Jersey Foundation (Mr. Shalom, Edward L.
    Barocas and Jeanne LoCicero, on the brief).
    The opinion of the court was delivered by
    REISNER, P.J.A.D.
    In this appeal, we address the scope of the discovery which
    the State must produce prior to a pretrial detention hearing held
    under the Bail Reform Act (Act), N.J.S.A. 2A:162-15 to -26.                   Rule
    3:4-2(c)(1)(B), which was part of a comprehensive set of rule
    amendments adopted to implement the Act, provides:
    [I]f the prosecutor is seeking pretrial
    detention, the prosecutor shall provide the
    defendant with all statements or reports in
    its possession relating to the pretrial
    detention application.      All exculpatory
    evidence must be disclosed.
    [R. 3:4-2(c)(1)(B).]
    This   appeal   primarily   focuses       on   the   meaning   of   the    phrase
    "relating to the pretrial detention application."1
    In this case, defendant was arrested on January 4, 2017, and
    charged with murder based on an affidavit of probable cause
    reciting that two eyewitnesses saw defendant shoot the victim, and
    1
    In this case, the State acknowledged its obligation to provide
    "[a]ll exculpatory evidence," Rule 3:4-2(c)(1)(B), and provided
    defense counsel with defendant's statement to the police.    The
    "exculpatory evidence" provision is not at issue in this appeal
    and therefore the opinion will not address that requirement.
    2                                   A-1891-16T2
    the witnesses identified defendant from a photo array.                          The
    Preliminary   Law    Enforcement    Information       Report    (PLEIR)2       also
    stated that the police had surveillance video footage relevant to
    the   commission    of   the   crime.        The   defense   asked   for     those
    documents, and the State refused to provide them.
    As a result, the January 10, 2017 pretrial detention hearing
    devolved into a dispute over discovery, with the State insisting
    that its discovery obligation was limited to producing the probable
    cause affidavit and the PLEIR.              Judge Ronald D. Wigler rejected
    that argument.      Instead, keying the State's discovery obligation
    to the evidence referenced in the probable cause affidavit and
    related information listed in the PLEIR, Judge Wigler required the
    prosecutor to produce as discovery the two eyewitness statements,
    the photo array, and the surveillance video listed in the PLEIR.
    2
    In a comprehensive directive aimed at guiding law enforcement
    agencies to implement and comply with the Act, the Attorney General
    directed the creation of the PLEIR form, as a means by which law
    enforcement officers could quickly summarize the evidence in their
    possession. Att'y Gen. Law Enf't Directive No. 2016-6, Oct. 11,
    2016.   The PLEIR was intended to "succinctly describe[] the
    relevant factual circumstances pertaining to the offense for which
    the defendant was arrested and the basis for the arresting
    officer's belief that probable cause exists."      Id. at 48.   The
    PLEIR was also intended to "inform the prosecutor's decision
    whether to file a motion for pretrial detention." Ibid. On the
    face of the document, the PLEIR recites that it must accompany the
    probable cause affidavit and is deemed to be incorporated by
    reference into the affidavit.
    3                                  A-1891-16T2
    He also ordered the State to turn over any initial police reports
    that related to the application.
    We conclude that Judge Wigler correctly interpreted Rule 3:
    4-2(c)(1)(B).      The State's argument, which it repeats on this
    appeal, is contrary to the plain language and textual context of
    the rule, as well as its purpose.         The State's contention is also
    directly contrary to the position it asserted before the Criminal
    Practice Committee - including the version of the rule the State
    advocated - during the Committee's comprehensive review of Court
    Rule    amendments    needed   to   implement   the   Act.   The   State's
    submissions were included in the Committee's report to the Supreme
    Court and thus became part of the legislative history of section
    (B) as adopted by the Court.         See Rep. of the Sup. Ct. Comm. on
    Criminal Practice on Recommended Court Rules to Implement the Bail
    Reform Law, Part 1, Pretrial Release (May 9, 2016) (CPC Report).
    We conclude that Judge Wigler correctly interpreted the rule
    as entitling a defendant to discovery of the factual materials on
    which the State bases its application for defendant's pretrial
    detention,   and     not   merely   the   hearsay   description   of     those
    materials set forth in the probable cause affidavit and the PLEIR.
    We reject the State's contention that it need only produce
    the materials described in the affidavit if it says it relies on
    them.    Clearly, the State relies on the affidavit to establish
    4                                A-1891-16T2
    probable cause, and therefore, the materials described by hearsay
    in the affidavit "relate" to the detention application.               R. 3:4-
    2(c)(1)(B).       Moreover, the trial court cannot be expected to
    ignore what is set forth in the probable cause affidavit in
    considering the weight of the State's evidence, N.J.S.A. 2A:162-
    20(a),    and   the   defense    cannot     meaningfully    respond   to    the
    application without seeing at least the most critical evidence
    supporting the State's allegations.
    In this case, the State alleged that defendant committed a
    murder in view of two eyewitnesses and a surveillance camera.               The
    State's   probable    cause     affidavit   turned   on    identification    of
    defendant as the shooter, and thus the required discovery would
    be the materials "relating to" that aspect of the State's motion.
    R. 3:4-2(c)(1)(B).      We agree with Judge Wigler that defendant was
    entitled to discover the statements of the two eyewitnesses; the
    photo array described in the probable cause affidavit as having
    been used in the identification process; the surveillance video;
    and the initial police reports of the crime.                 Accordingly, we
    affirm the January 10, 2017 discovery order.3             We also vacate the
    3
    We granted the State's motion for leave to appeal from the January
    10, 2017 order. Defendant did not cross-move for leave to appeal
    from the order.    We note that the order, which the prosecutor
    drafted, directs the State to produce the documents described
    above, plus any other discovery "related to" its application,
    5                               A-1891-16T2
    stay of the order that was entered pending appeal, and remand this
    case   to    the   trial   court    to     complete   discovery   and   hold   the
    detention hearing forthwith.4
    Finally, we understand that, because of the expedited nature
    of the pretrial detention hearing process, all parties need clear
    guidance as to the State's discovery obligations.                 In particular,
    the State needs to know with some specificity what documents it
    must produce when it files its detention application, an event
    that will usually occur shortly after defendant's arrest.                 At oral
    argument, defendant and the amicus American Civil Liberties Union
    agreed      that   under   the     Rule,    the   State's   initial     discovery
    obligation is limited to the materials in the State's possession
    that are referenced in the probable cause affidavit and the related
    without listing those materials.     The parties did not specify
    other documents to which the order applies. For future reference,
    if it is necessary for the court to order the State to produce
    discovery, the order should list with specificity the documents
    the State must produce.
    4
    The probable cause affidavit stated that the witnesses were
    fearful, but the State did not apply to Judge Wigler for a
    protective order limiting discovery due to concerns for witness
    safety. At oral argument, in response to our inquiry about its
    underlying policy concerns, the State did not even mention the
    protection of witnesses. We infer that the State is aware of its
    right to apply for a protective order, in camera review of
    evidence, or other relief in a case that presents a genuine issue
    as to the protection of witnesses. See In re N.H., 
    226 N.J. 242
    ,
    256 (2016).
    6                              A-1891-16T2
    materials listed in the PLEIR.5        That is consistent with our
    interpretation of the Rule.
    To be clear, if such materials are in the possession of the
    police, they are in the State's possession and the prosecutor must
    produce them.      See State v. Womack, 
    145 N.J. 576
    , 589, cert.
    denied, 
    519 U.S. 1011
    , 
    117 S. Ct. 517
    , 
    136 L. Ed. 2d 405
     (1996);
    State v. Mustaro, 
    411 N.J. Super. 91
    , 102 (App. Div. 2009).        We
    expect that all parties will act cooperatively in implementing
    Rule 3:4-2(c)(1)(B), and that they will use available electronic
    communication methods to promptly produce and receive discovery.
    While there may be occasional glitches in producing discovery,
    those should be the exception rather than the rule, to avoid
    delaying the pretrial detention hearings and compromising the
    rights of defendants.
    I
    Because this is the first opinion to address an issue under
    the Bail Reform Act, it will be helpful to review the history and
    content of the Act to put the legal issues in context.
    5
    At oral argument, the parties acknowledged that the trial court
    has discretion to order additional discovery. That issue is not
    presented here, however, and we need not address it.
    7                        A-1891-16T2
    The Constitutional Amendment and the Bail Reform Act
    Effective January 1, 2017, the voters of New Jersey approved
    a constitutional amendment providing a right to pretrial release,
    but   authorizing   pretrial   detention   under   certain   limited
    circumstances, N.J. Const. art. I, ¶ 11:
    All persons shall, before conviction, be
    eligible for pretrial release.        Pretrial
    release may be denied to a person if the court
    finds that no amount of monetary bail, non-
    monetary conditions of pretrial release, or
    combination of monetary bail and non-monetary
    conditions   would   reasonably   assure   the
    person's appearance in court when required,
    or protect the safety of any other person or
    the community, or prevent the person from
    obstructing or attempting to obstruct the
    criminal justice process. It shall be lawful
    for the Legislature to establish by law
    procedures, terms, and conditions applicable
    to pretrial release and the denial thereof
    authorized under this provision.
    [N.J. Const. art. I, ¶ 11 (amended effective
    2017).]
    To meet this constitutional mandate, and its shift from a
    pretrial system based on the right to bail, New Jersey adopted a
    risk-based approach unrelated to a defendant's ability to pay.      As
    codified by the Bail Reform Act, the new system favors pretrial
    release and monitoring as the presumptive approach and limits
    preventive detention to defendants who actually warrant it.         By
    permitting judges to keep high-risk defendants detained without
    bail, and to release with or without conditions those defendants
    8                           A-1891-16T2
    who pose little risk of flight or of committing another offense,
    these constitutional and legislative changes represent a major
    reform to criminal justice that will promote public safety and
    fairness.
    Historically, in New Jersey, individuals had a constitutional
    right to bail before trial in all criminal cases, "except for
    capital offenses when the proof is evident or the presumption
    great."     N.J. Const. art. I, ¶ 11; N.J. Const. of 1844 art. I, ¶
    10. Although this fundamental right to bail was first incorporated
    into the New Jersey Constitution in 1844, it existed by statute
    prior to the 1776 Constitution.       State v. Johnson, 
    61 N.J. 351
    ,
    354 (1972) (citing Leaming & Spicer, Grants and Concessions of New
    Jersey, 1664-1702 235 (1881)).
    The constitutional amendment approved by voters in November
    2014 arose from the recognition that a sizable number of pretrial
    defendants stayed in jail before trial because of their inability
    to pay relatively small amounts of bail.        Pub. Hearing before
    Senate Law and Pub. Safety Comm., Senate Concurrent Resol. 128,
    at 2 (July 24, 2014),                  http://www.njleg.state.nj.us/
    legislativepub/pubhear/slp 07242014.pdf (Public Hearing).         The
    reliance on bail also led to the pretrial release of high-risk
    defendants without appropriate individual assessments.        Public
    9                          A-1891-16T2
    Hearing, supra, at 1-2.            The 2014 constitutional amendment was
    intended to address these issues.
    In 2014, the Legislature adopted a new law to take effect on
    the same day as the constitutional amendment. Effective on January
    1, 2017, the Bail Reform Act established reforms for bail and
    other   forms    of   pretrial     release    and    for    pretrial      detention,
    established     statutory       speedy   trial   deadlines,     and    made    other
    changes to court administration and court-related programs.                       See
    Statement to S. 946 (July 31, 2014).
    The three-fold purpose of the Bail Reform Act is to primarily
    rely upon pretrial release by non-monetary means "to reasonably
    assure an eligible defendant's appearance in court when required,
    the protection of the safety of any other person or the community,
    [and] that the eligible defendant will not obstruct or attempt to
    obstruct the criminal justice process."               N.J.S.A. 2A:162-15.         The
    Act further seeks to assure that "the eligible defendant will
    comply with all conditions of release, while authorizing the court,
    upon motion of a prosecutor, to order pretrial detention . . .
    when it finds clear and convincing evidence that no condition or
    combination of conditions can reasonably assure the effectuation
    of these goals."       N.J.S.A. 2A:162-15.          Under the statute, a court
    may set monetary bail "only when it is determined that no other
    conditions      of    release    will    reasonably        assure   the     eligible
    10                                  A-1891-16T2
    defendant's appearance in court when required."                 N.J.S.A. 2A:162-
    15.    For purposes of bail reform, an eligible defendant means "a
    person for whom a complaint-warrant is issued for an initial charge
    involving an indictable offense or a disorderly persons offense
    unless otherwise provided" in the statute.                  N.J.S.A. 2A:162-15.
    The Bail Reform Act provides that an eligible defendant,
    following the issuance of a complaint-warrant, will be temporarily
    detained     to     allow    the    Pretrial     Services    Program     (PSP)     the
    opportunity to "prepare a risk assessment with recommendations on
    conditions     of    release."       N.J.S.A.     2A:162-16(a);        see   N.J.S.A.
    2A:162-25.        The court must make a pretrial release decision "in
    no    case   later    than    48    hours    after   the    eligible    defendant's
    commitment to jail."           N.J.S.A. 2A:162-16(b)(1).           The court may
    release a defendant on his or her own recognizance, or may order
    the pretrial release subject to certain conditions.                          N.J.S.A.
    2A:162-17.
    If the prosecutor makes a motion for pretrial detention, the
    eligible defendant must be detained in jail pending a pretrial
    detention hearing.          N.J.S.A. 2A:162-18, -19.         The hearing must be
    held no later than the defendant's first appearance, unless either
    the eligible defendant or the prosecutor seeks a continuance, or
    unless the prosecutor files the motion after the first appearance.
    N.J.S.A. 2A:162-19(d).             Upon filing of the prosecutor's motion,
    11                                A-1891-16T2
    and during any continuance granted by the court, the eligible
    defendant must remain in jail.          N.J.S.A. 2A:162-19(d)(2).               If the
    eligible defendant was previously released from custody before
    trial,    the   court   must   issue   a     notice    to    compel     his    or   her
    appearance at the hearing.        N.J.S.A. 2A:162-19(d)(2).
    At the pretrial detention hearing, the eligible defendant has
    the right to counsel and, if financially unable to obtain adequate
    representation, has the right to appointed counsel.                           N.J.S.A.
    2A:162-19(e).       The eligible defendant also has the right "to
    testify, to present witnesses, to cross-examine witnesses who
    appear at the hearing, and to present information by proffer or
    otherwise."     N.J.S.A. 2A:162-19(e)(1).             At a hearing where there
    is no indictment, the prosecutor must "establish probable cause
    that the eligible defendant committed the predicate offense."
    N.J.S.A. 2A:162-19(e)(2).       In reaching its decision, the court may
    consider certain information enumerated in N.J.S.A. 2A:162-20.                         A
    pretrial detention order must include "written findings of fact
    and   a   written   statement    of    the    reasons       for   the   detention."
    N.J.S.A. 2A:162-21(a).         "If the court enters an order that is
    contrary to a recommendation made in a risk assessment when
    determining a method of release or setting release conditions, the
    court shall provide an explanation in the document that authorizes
    the eligible defendant's release."            N.J.S.A. 2A:162-23(a)(2).
    12                                      A-1891-16T2
    When an eligible defendant is released from custody before
    trial,   and   upon   motion   of   a    prosecutor   the   court   finds   the
    defendant violated a restraining order or condition of release,
    or finds probable cause to believe the defendant committed a new
    crime while on release, it may not revoke the release and order
    the defendant detained unless, after considering all relevant
    circumstances, it "finds clear and convincing evidence that no
    monetary bail, non-monetary conditions of release or combination
    of monetary bail and conditions would reasonably assure" the three
    primary purposes of the Act.        N.J.S.A. 2A:162-24.
    The Bail Reform Act also directs courts to calculate speedy
    trial deadlines for eligible defendants who are subject to pretrial
    detention ordered by a court or who remain in jail pretrial due
    to the inability to post monetary bail imposed pursuant to the
    Act.     N.J.S.A. 2A:162-22.        Not counting excludable time for
    reasonable delays, an eligible defendant must not remain in jail
    for more than 90 days prior to the return of an indictment, or 180
    days following the return or unsealing of the indictment and before
    the commencement of trial.      N.J.S.A. 2A:162-22(a)(1), (a)(2).           The
    Bail Reform Act identifies thirteen periods to exclude in computing
    the time in which a case must be indicted or tried.                  N.J.S.A.
    2A:162-22(b).
    13                            A-1891-16T2
    Detention Hearing Provisions in Greater Detail
    The Act, N.J.S.A. 2A:162-19(a), grants the State the right
    to file an application for pretrial detention when the State
    charges the defendant with the following crimes or offenses:
    (1) any crime of the first or second
    degree enumerated under subsection d. of
    section 2 of N.J.S.A. 2C:43-7.2;
    (2) any crime for which the eligible
    defendant would be subject to an ordinary or
    extended term of life imprisonment;
    (3) any crime if the eligible defendant
    has been convicted of two or more offenses
    under paragraph (1) or (2) of this subsection;
    (4) any crime enumerated under paragraph
    (2) of subsection b. of section 2 of N.J.S.A.
    2C:7-2 or crime involving human trafficking
    pursuant to section 1 of N.J.S.A. 2C:13-8 or
    N.J.S.A. 52:17B-237 et al. when the victim is
    a minor, or the crime of endangering the
    welfare of a child under N.J.S.A. 2C:24-4;
    (5) any crime enumerated under subsection
    c. of N.J.S.A. 2C:43-6;
    (6) any crime or offense involving
    domestic violence as defined in subsection a.
    of section 3 of N.J.S.A. 2C:25-19; or
    (7) any other crime for which the
    prosecutor believes there is a serious risk
    that:
    (a) the eligible defendant will not
    appear in court as required;
    (b) the eligible defendant will pose
    a danger to any other person or the community;
    or
    14                          A-1891-16T2
    (c) the eligible defendant will
    obstruct or attempt to obstruct justice, or
    threaten, injure, or intimidate, or attempt
    to   threaten,   injure  or   intimidate, a
    prospective witness or juror.
    At the hearing mandated by N.J.S.A. 2A:162-19(c), if the
    defendant   has   not   yet   been   indicted,   "the   prosecutor     shall
    establish probable cause that the eligible defendant committed the
    predicate offense."      N.J.S.A. 2A:162-19(e)(2).        If "the court
    finds probable cause that the eligible defendant" committed murder
    or a crime that would subject the defendant to life imprisonment,
    then
    there shall be a rebuttable presumption that
    the eligible defendant shall be detained
    pending trial because no amount of monetary
    bail, non-monetary condition or combination of
    monetary bail and conditions would reasonably
    assure the eligible defendant's appearance in
    court when required, the protection of the
    safety of any other person or the community,
    and that the eligible defendant will not
    obstruct or attempt to obstruct the criminal
    justice process . . . .
    [N.J.S.A. 2A:162-19(b).]
    The presumption of detention
    may be rebutted by proof provided by the
    eligible defendant, the prosecutor, or from
    other materials submitted to the court. The
    standard of proof for a rebuttal of the
    presumption of pretrial detention shall be a
    preponderance of the evidence.      If proof
    cannot   be   established    to   rebut   the
    presumption, the court may order the eligible
    defendant's pretrial detention.       If the
    15                              A-1891-16T2
    presumption is rebutted by sufficient proof,
    the prosecutor shall have the opportunity to
    establish that the grounds for pretrial
    detention exist pursuant to this section.
    [N.J.S.A. 2A:162-19(e)(2).]
    In all cases, "[e]xcept when an eligible defendant has failed
    to rebut a presumption of pretrial detention pursuant to" N.J.S.A.
    2A:162-19(b), "the court's finding to support an order of pretrial
    detention    .   .   .   shall   be   supported     by   clear   and   convincing
    evidence."       N.J.S.A. 2A:162-19(e)(3).          The court may reopen the
    hearing at any time if new and material evidence is discovered.
    N.J.S.A. 2A:162-19(f).
    At   the     hearing,   "the     court   may   take   into   account"     the
    following information, set forth in N.J.S.A. 2A:162-20:
    a. The nature and circumstances of the
    offense charged;
    b.   The weight of the evidence against
    the eligible defendant, except that the court
    may consider the admissibility of any evidence
    sought to be excluded;
    c.   The history and characteristics of
    the eligible defendant, including:
    (1) the eligible defendant's character,
    physical and mental condition, family ties,
    employment, financial resources, length of
    residence in the community, community ties,
    past conduct, history relating to drug or
    alcohol abuse, criminal history, and record
    concerning appearance at court proceedings;
    and
    16                                 A-1891-16T2
    (2) whether, at the time of the current
    offense or arrest, the eligible defendant was
    on probation, parole, or on other release
    pending   trial,   sentencing,   appeal,   or
    completion of sentence for an offense under
    federal law, or the law of this or any other
    state;
    d. The nature and seriousness of the
    danger to any other person or the community
    that   would  be   posed   by  the  eligible
    defendant's release, if applicable;
    e. The nature and seriousness of the risk
    of obstructing or attempting to obstruct the
    criminal justice process that would be posed
    by the eligible defendant's release, if
    applicable; and
    f. The release recommendation of the
    pretrial services program obtained using a
    risk assessment instrument under N.J.S.A.
    2A:162-25.
    II
    In preparing to implement the Act, the Supreme Court tasked
    the   Criminal   Practice    Committee        with   drafting    recommended
    amendments to the Court Rules.             Several judges, representatives
    of the Attorney General, county prosecutors, the Office of the
    Public   Defender,   and    private    attorneys     participated    on   the
    Committee.    During the Committee's deliberations, the defense bar
    urged that the rules provide for broad discovery in pretrial
    detention    hearings.      The   Attorney       General   and   prosecutors
    expressed concern that requiring extensive discovery would pose
    17                             A-1891-16T2
    too great a burden on prosecutors and would transform pretrial
    detention hearings into "mini-trials" on a defendant's guilt or
    innocence, rather than a focused inquiry on whether the defendant
    should be released or detained pretrial.
    After lengthy consideration, the Committee recommended that
    the pretrial detention discovery rule mirror Rule 3:13-3(a), which
    governs    pre-indictment   plea-offer   discovery.   Section   3(a)
    requires the State to provide, at the time of a pre-indictment
    plea offer, (1) all exculpatory material, and (2) "all available
    relevant material that would be discoverable at the time of
    indictment," unless the State determines that disclosure "would
    hinder or jeopardize a prosecution or investigation," or "would
    impose an unreasonable administrative burden on the prosecutor's
    office."   R. 3:13-3(a).6
    In making that recommendation, the Committee acknowledged
    that it was not without controversy:
    There were strong concerns raised about the
    nature of a detention hearing, and that it is
    supposed to be limited in scope. Some members
    noted that it would be overly burdensome for
    prosecutors   to   be  required  to   provide
    'complete' discovery, i.e., all material that
    must be turned over under current R. 3:13-3
    6
    The Committee's proposed rule read as follows: "(b) if the
    prosecutor is seeking pretrial detention, the prosecutor shall
    provide all relevant material in its possession that would be
    discoverable at the time of indictment as set forth in paragraph
    (a) of Rule 3:13-3."
    18                         A-1891-16T2
    when the State tenders a plea offer. It was
    asserted that any such requirement would
    signal that the detention hearing could be as
    broad as a trial on the merits of the charge.
    Thus, it was important that the discovery
    obligation be limited to 'relevant material'
    in the prosecutor's possession since these
    hearings   would   be  convening,   in   most
    instances, within a few days of arrest.
    [CPC Report, supra, Part 1 at 51.]
    In a strongly worded dissent, which was appended to the
    Committee's report, the Attorney General advocated a narrower rule
    that would still require the State to provide some discovery.             The
    Attorney General's dissent relied on a proposal put forth earlier
    by Judge Martin Cronin, a Committee member, who proposed that
    discovery should be limited to exculpatory material and material
    related to the State's pretrial detention application.                  That
    proposal   was   aimed   at   giving   a   defendant   an   opportunity    to
    challenge the basis for detention while also limiting the scope
    of discovery to only that which was relevant to the hearing.
    In his dissent, the Attorney General stated:            "To be clear,
    prosecutors do not dispute that under the new framework of the
    Bail Reform Law, available discovery must be provided to allow the
    defense to address the facts and arguments that the State will
    present at the pretrial detention hearing."            He noted that "the
    weight of the evidence may be relevant," because it "relates
    directly to defendant's incentive to flee to avoid a likely trial
    19                               A-1891-16T2
    conviction."     To   address    "the      legitimate   discovery    needs        of
    defendants   facing   pretrial    detention      hearings,"    the    Attorney
    General proposed the following alternate version of the discovery
    rule:
    (b) if the prosecutor is seeking pretrial
    detention   or   release    revocation, the
    prosecutor shall provide the defendant with
    all statements or reports in its possession
    that relate to the facts upon which the
    prosecutor relies in these motions.
    [Emphasis added.]
    Contrary to the position the Attorney General and prosecutor
    asserted in this case, the Attorney General's proposed rule did
    not limit discovery to the probable cause affidavit and the PLEIR.
    Ultimately,   the   Supreme     Court   did   not   adopt    the     "full
    discovery" approach advocated by the Committee and instead adopted
    a rule closer to the version advocated by the Attorney General.
    As adopted, subsections (A) and (B) of Rule 3:4-2(c)(1) distinguish
    between the State's discovery obligation if detention is not sought
    and the discovery that must be produced if the State files a
    detention motion.
    (A) if the prosecutor is not seeking pretrial
    detention, the prosecutor shall provide the
    defendant with a copy of any available
    preliminary law enforcement incident report
    concerning the offense and any material used
    to establish probable cause;
    20                                   A-1891-16T2
    (B) if the prosecutor is seeking pretrial
    detention, the prosecutor shall provide the
    defendant with all statements or reports in
    its possession relating to the pretrial
    detention   application.    All exculpatory
    evidence must be disclosed.
    [R. 3:4-2(c)(1)(A), (B).]
    III
    Against that backdrop, we turn to the issue presented in
    this appeal.     Our review of a trial court's legal interpretations
    - including "the meaning or scope of a court rule" - is de novo.
    State v. Hernandez, 
    225 N.J. 451
    , 461 (2016).           In construing a
    court    rule,   we   apply   well-understood   principles   of   statutory
    construction.
    When interpreting court rules, we ordinarily
    apply canons of statutory construction.
    Accordingly, as with a statute, the analysis
    must begin with the plain language of the
    rule.    The Court must "ascribe to the [words
    of the rule] their ordinary meaning and
    significance . . . and read them in context
    with related provisions so as to give sense
    to the [court rules] as a whole . . . ." If
    the language of the rule is ambiguous such
    that it leads to more than one plausible
    interpretation,   the   Court   may  turn   to
    extrinsic evidence.
    [Wiese v. Dedhia, 
    188 N.J. 587
    , 592 (2006)
    (citations   omitted)    (alterations   in
    original).]
    Reading the plain language of subsection (B), we conclude
    that the words cannot support the State's cramped construction of
    21                             A-1891-16T2
    the provision.     When the State seeks pretrial detention, it must
    turn over "all statements or reports in its possession relating
    to the pretrial detention application," and not merely the probable
    cause affidavit and the PLEIR. R. 3:4-2(c)(1)(B) (emphasis added).
    If we had any doubts about that conclusion, they would be
    laid to rest by comparing section (A), which only requires that
    the State produce the PLEIR and the probable cause affidavit, and
    section   (B),   which   requires   that   the   State   turn   over   "all
    statements or reports."      R. 3:4-2(c)(1)(A), (B).        If the Court
    intended the State's discovery obligation under section (B) to be
    as narrow as under (A), it would have used the same language in
    both sections.     We "must presume that every word" in subsection
    (B) "has meaning."    Shelton v. Restaurant.com, Inc., 
    214 N.J. 419
    ,
    441 (2013) (quoting Cast Art Indus., L.L.C. v. KPMG, L.L.P., 
    209 N.J. 208
    , 224 (2012)).
    In considering the types of materials the State must produce,
    we also note that the Court used the term "relating to," which in
    normal usage means "to be about" or "connected with" something.
    Merriam-Webster,         https://www.merriam-webster.com/dictionary/
    relate%20to (last visited Feb. 3, 2017).                 Considering that
    language in light of the rule's legislative history - the CPC
    Report and the Attorney General's dissent - we infer that the rule
    requires the State to produce those materials in its possession
    22                             A-1891-16T2
    which relate to the facts on which the State relies in its
    application.
    In    this   case,   the   State   relies    on   the   facts   that   two
    eyewitnesses identified defendant as the shooter, and that a
    surveillance video supports the identification.                 Therefore, it
    must produce in discovery the materials relating to those factual
    assertions - i.e., the witness statements, the photo arrays, and
    the surveillance video.7        The initial police reports must also be
    turned over, because they can be expected to provide the basic
    background facts concerning the time and place of the crime, the
    interviews of the witnesses, and the filing of the murder charge.
    Contrary to the State's argument on this appeal, the required
    discovery is not limited to the documents on which the State claims
    to rely. Rather, it extends to those materials that "relate" to
    the State's application. Therefore, the State cannot avoid turning
    over discovery by claiming that it is only "relying" on the
    probable    cause   affidavit     and     the   PLEIR.   That    argument     is
    unpersuasive and contradicts the position the Attorney General
    espoused before the Committee.
    7
    At oral argument, the prosecutor confirmed that the surveillance
    video was from an ordinary security camera located in the vicinity
    of the shooting, as opposed to a special law enforcement
    surveillance device.
    23                                A-1891-16T2
    We are also unpersuaded by the State's expressed concern
    that allowing defendants to obtain discovery beyond the PLEIR and
    the probable cause affidavit will turn the pretrial detention
    hearings    into   mini-trials.       The    State's    argument    puts    the
    proverbial cart before the horse.         The scope of discovery will not
    necessarily determine the scope of the hearing. The latter issue
    is not before us on this appeal and we do not address it.
    However, we do consider that the very limited discovery for
    which   the   State    advocates   could     deny   a   defendant    a     fair
    opportunity to defend against the State's application, and could
    hamper the trial court's ability to fairly assess the nature and
    circumstances of the offense and the weight of the evidence.
    N.J.S.A. 2A:162-20(a) and (b) specifically allow the court to
    consider those factors.
    In this case, the murder charge was based almost exclusively
    on witness identifications.          If the circumstances surrounding
    them established that the identifications were weak or otherwise
    plainly unreliable, the basis for the State's application would
    diminish. Neither defendant nor the court would know this without
    review of the identification evidence.         Whether the State intends
    to produce the witness statements at the hearing or call the
    witnesses to testify is not pertinent.         The salient point is that
    defendant     should    have   the        opportunity    to   review        the
    24                               A-1891-16T2
    identifications to prepare a defense and to facilitate a court
    decision based on the circumstances of the case.
    Moreover, although it may not be an issue in this case,
    discovery relating to the State's application may reveal to the
    court that the charges, while nominally supported by probable
    cause, appear exaggerated or a product of over-charging.                   As an
    example, a fistfight between two students in a schoolyard could
    result in charges ranging from simple assault to attempted murder.
    Or, review of a witness statement could result in a defendant
    discovering that he or she has an alibi for the alleged time of
    the crime. Considering the "nature and circumstances of the
    offense     charged"   and    the    "weight       of   the   evidence"    could
    significantly     affect     the    court's    decision       on   a   detention
    application, even without holding a testimonial hearing.                       See
    N.J.S.A. 2A:162-20(a), (b).
    Further, there is nothing unusual about providing a defendant
    with additional discovery rights where the State seeks to impose
    an additional burden on defendant's freedom or seeks to deprive
    a defendant of a traditional legal protection.                   While it is an
    imperfect analogy, our Court has held that in juvenile waiver
    hearings, the State must provide "[f]ull discovery" to "enable
    the   juvenile   and   counsel      to   prepare    for    all   facets   of   the
    hearing."     N.H., supra, 226 N.J. at 245.               At a waiver hearing,
    25                               A-1891-16T2
    the   State    must   establish     probable    cause    that    the   juvenile
    committed an enumerated act and that the State did not abuse its
    discretion in requesting waiver.           Ibid.     The factors a court may
    consider are somewhat similar to those the court may consider at
    a detention hearing.         Compare N.J.S.A. 2A:4A-26.1(c)(2) and (3),
    with N.J.S.A. 2A:162-20.
    As   explained    by    the   Court,     the   waiver     hearing    is    a
    "critically important event" in the process because the juvenile
    risks losing the protections afforded by the Family Court, which
    includes emphasis on rehabilitation and lesser sentences.                  N.H.,
    supra, 226 N.J. at 255.        The Court acknowledged the importance of
    discovery in the waiver hearing process:
    Full discovery facilitates the court's review
    of all the issues to be addressed at the
    hearing.    Full discovery also enables the
    juvenile and counsel to prepare for all facets
    of the hearing and decide how best to cross-
    examine the State's witnesses, whether the
    juvenile or others should testify, and how to
    assess and challenge the prosecutor's exercise
    of discretion.
    [Id. at 256.]
    However, the Court noted that the State was free to seek a
    protective order "to redact, delay, or withhold the disclosure of
    materials that would expose witnesses and others to harm, hinder
    or jeopardize ongoing investigations or prosecutions, undermine
    the secrecy of informants and confidential information which the
    26                                  A-1891-16T2
    law recognizes, or compromise some other legitimate interest."
    Ibid. (referring to R. 3:13-3(a)(1) and (e)(1)).
    In this case, Rule 3:4-2(c)(1)(B) does not provide for full
    discovery.       However, N.H. is instructive because it recognizes
    that at critical stages in a criminal proceeding, a defendant
    must be afforded "a meaningful opportunity to be heard."                 N.H.,
    supra, 226 N.J. at 253.        The discovery provided by section (B) is
    an important component of that opportunity.
    In summary, we hold that Rule 3:4-2(c)(1)(B) obligates the
    prosecutor to provide a defendant with those materials in the
    State's possession that relate to the facts on which the State
    bases its pretrial detention application.             Those "facts" are the
    factual assertions contained in the probable cause affidavit. The
    materials, which must be produced, include those referenced in
    the affidavit and in the PLEIR.          In this case, the identification
    of   defendant     as   the    shooter    was   central   to   the   State's
    application, and the trial court properly ordered the State to
    produce    the    eyewitness    statements,     the    photo   arrays,    the
    surveillance video listed in the PLEIR, and the initial police
    reports.
    Affirmed.
    27                              A-1891-16T2
    

Document Info

Docket Number: A-1891-16T2

Filed Date: 2/8/2017

Precedential Status: Precedential

Modified Date: 4/17/2021