STATE OF NEW JERSEY VS. MAWULDA PINKSTON (16-07-0103 AND 17-03-0041, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4459-17T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
MAWULDA PINKSTON,
Defendant-Respondent.
___________________________
Argued December 19, 2018 – Decided May 30, 2019
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment Nos. 16-07-0103
and 17-03-0041.
Omari S. Reid, Deputy Attorney General, argued the
cause for appellant (Gurbir S. Grewal, Attorney
General, attorney; Omari S. Reid, of counsel and on the
brief).
Alicia J. Hubbard, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Alicia J. Hubbard, of
counsel and on the brief).
PER CURIAM
By leave granted, the State appeals from an April 10, 2018 order imposing
sanctions, including the dismissal of an indictment, based on the State's failure
to make timely discovery in two pending criminal cases, which had been
consolidated for trial, against defendant Mawulda Pinkston. We affirm in part,
reverse in part, and remand for further proceedings.
I.
Defendant was charged with various drug offenses and arrested on June
27, 2015, as the result of a New Jersey State Police investigation during which
a confidential informant allegedly bought controlled dangerous substances from
defendant on five separate occasions. The police seized two cellphones from
defendant at the time of his arrest. Approximately three-and-a-half months later,
the State sent defendant a letter concerning the charges and a disc containing
initial discovery.
On July 6, 2016, over one year after his arrest, a grand jury returned an
indictment charging defendant with second-degree conspiracy to distribute
cocaine, N.J.S.A. 2C:5-2, 2C:35-5(a)(1) (count one); first-degree distribution of
cocaine, N.J.S.A. 2C:35-5(a)(1), (b)(1), (c) (count two); third-degree
distribution of cocaine within one thousand feet of school property, N.J.S.A.
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2C:35-7(a) (count three); second-degree distribution of cocaine within five
hundred feet of certain public property, N.J.S.A. 2C:35-7.1(a) (count four); and
third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count five).
Defendant was arraigned on July 18, 2016. 1
On March 7, 2017, a grand jury returned a second indictment charging
defendant with a single count of third-degree witness tampering, N.J.S.A.
2C:28-5(a), for contacting the confidential informant involved in his drug case
and attempting to dissuade the informant from testifying.2 At the April 10, 2017
arraignment on the indictment, the State did not provide defendant with
discovery on the witness tampering charge, but represented to the court that the
discovery would be supplied to defendant. 3
1
The State has not provided the transcript of defendant's arraignment on the
drug charges. See R. 2:5-4(a).
2
The confidential informant told police defendant attempted to contact him at
his workplace on July 22, 2016, and called him on his cellphone the following
day and attempted to dissuade him from testifying against defendant. The
informant called defendant on July 25, 2016, and the police recorded that call.
3
The State has not provided the transcript of the April 10, 2017 arraignment.
See R. 2:5-4(a). We discern the facts concerning the arraignment from the
representations of counsel at other proceedings for which transcripts have been
provided and the trial court's findings, which the parties do not dispute.
A-4459-17T3
3
In September 2017, a new deputy attorney general took over the
prosecution of defendant's cases. The court held a pretrial conference and plea
cutoff proceeding in the drug case on October 16, 2017. Defendant expressed
uncertainty regarding whether to proceed to trial and the court gave defendant a
week to consider his decision. On October 23, 2017, defendant appeared before
the court and rejected the State's plea offer; the State offered to recommend that
defendant receive a sentence not to exceed fifteen years with a seventy-five
month period of parole ineligibility in exchange for his plea of guilty to the first-
degree distribution charge.4 The State's plea offer also included its commitment
to recommend dismissal of the witness tampering charge.
The pretrial memorandum, that was signed by defendant, his counsel and
the deputy attorney general, and entered by the court, expressly stated that "All
Pretrial Discovery is complete."5 The pretrial memorandum also provided that,
4
The State has not provided the transcripts of either the October 16 or October
23, 2017 proceedings. See R. 2:5-4(a). We discern the facts concerning the
proceedings from the representations of counsel in other proceedings for which
transcripts have been provided and the trial court's findings, which are not
disputed.
5
The pretrial memorandum noted that the State would provide defendant with
a copy of a formal order dismissing charges against the confidential informant.
The State's compliance with this provision of the pretrial memorandum is not at
issue.
A-4459-17T3
4
"except in extraordinary circumstances, the filing of [the] [m]emorandum ends
all plea negotiations, and no further bargaining will take place. Any subsequent
plea of guilty will be without a plea recommendation." The court scheduled
November 16, 2017, for the commencement of jury selection for the trial on the
drug charges.
On November 14, 2017, two days before jury selection was to begin, the
State requested a trial adjournment due to purported witness availability issues.
The trial court held a telephone conference on November 15, 2017, accepted the
State's representation it had witness availability issues and granted the State's
adjournment request. The court rescheduled the trial for February 27, 2018.
On November 15, 2017, hours after the court granted the State's
adjournment request, the State filed a motion to consolidate the drug and witness
tampering cases for trial. The deputy attorney general did not disclose the State's
planned filing of the consolidation motion during the adjournment telephone
conference with the court.
The State's representation in the October 23, 2017 pretrial memorandum
that discovery was complete proved to be inaccurate and disingenuous. On
November 15, 2017, the State first produced lab notes related to the drug case.
On November 21, 2017, unbeknownst to defendant and the judge who conducted
A-4459-17T3
5
the pretrial conference and plea cutoff proceeding and was scheduled to try the
drug case, the State obtained two search warrants from another judge for the
cellphones that were seized from defendant more than two years earlier during
his June 2015 arrest.6 The deputy attorney general later admitted she knew prior
to the October 23, 2017 pretrial conference and plea cutoff proceeding that the
State planned to obtain the search warrants for the phones, and that she did not
disclose the State's intention to the court or defendant during that proceeding.
She nonetheless signed the pretrial memorandum stating all discovery in the
drug case was complete.
Police executed the warrants and downloaded information from the
phones on or before December 18, 2017, but the State did not provide the
information to defendant at that time. Instead, the State waited until February
6, 2018, three weeks before the scheduled trial date, to first advise defendant
that the warrants had been sought and provide defendant with the information
downloaded from the phones.
6
In a later proceeding, the judge who had handled the proceedings in the two
matters stated that he was not available to consider the search warrant
applications on the day the warrants were issued, and did not know the State
sought or obtained the search warrants until February 6, 2018.
A-4459-17T3
6
Confronted in November 2017 with the State's motion to consolidate the
drug and witness tampering cases, defendant's counsel sent a written request for
discovery in the witness tampering case on November 21, 2017. Prior to that
time, defendant had not received any discovery in that case, and his counsel had
not requested any discovery because she believed, based on her communications
with the State, the witness tampering case would be disposed of separately after
trial in the drug case.7 Having not received a reply, defendant's counsel renewed
the request on December 6, 2017.
The State first provided discovery in the witness tampering case on
December 15, 2017, when the State revealed, despite prior assertions to the
contrary, that the confidential informant had been financially compensated for
his work as an informant in the drug case. The State provided some additional
documentation regarding the confidential informant on December 19, 2017, and
provided information concerning some of the payments made to the confidential
informant in connection with his cooperation in defendant's drug case on
January 3, 2018.
7
During a February 21, 2017 proceeding, the deputy attorney general agreed
that the planned handling of the two cases "until very late in the game was that
the State was going to try the first[-]degree drug charge and then . . . see where
[it] went with the witness tampering."
A-4459-17T3
7
On January 12, 2018, the court heard argument and granted the State's
motion to consolidate the drug and witness tampering cases for trial. The court
found "the evidence that would support the [witness tampering] indictment . . .
would clearly be admissible to support a consciousness of guilt theory in the
drug charge." The court was "satisfied that the probative value of this evidence
is not outweighed by any prejudice," but noted it was "a little bit late" for the
State "to be filing" the consolidation motion.
The court also ordered the State to provide any outstanding discovery and
instructed the parties to return for a pretrial conference on the witness tampering
case. The court emphasized that the deputy attorney general at the hearing was
"new to this case, new being in the last several months anyway and a lot of [the
discovery] discussions occurred with counsel who was in the case prior to " the
new deputy attorney general's involvement. The State refused to represent that
all discovery had been produced because it had "been finding out information
through the State Police . . . over the past several months," but the deputy
attorney general represented that the State had "provided everything that
[it] . . . [had] currently." The court accepted the State's representation, but
stated the answer was "unacceptable" because the February 27, 2018 trial was
six weeks away and defendant had already "been to plea cutoff in this case."
A-4459-17T3
8
During the proceeding, the deputy attorney general inexplicably failed to
mention to the court or counsel that search warrants had been issued for the
cellphones and information from the cellphones had been obtained from the
execution of the warrants but not yet provided to defendant.
On January 16, 2018, defendant reprised his request for information
regarding any past cooperation between the confidential informant and the State.
The State objected, arguing it had no obligation to provide information
concerning the confidential informant's cooperation in other investigations and
prosecutions.
On February 5, 2018, the parties appeared for a pretrial conference in the
witness tampering case. Defense counsel advised the court she intended to file
a motion to compel the production of discovery related to the confidential
informant. The court did not conduct the pretrial conference but instead ordered
a briefing schedule for defendant's motion. The court scheduled a February 21,
2018 hearing on the motion, but advised that the trial would proceed as
scheduled on February 27. The deputy attorney general again failed to disclose
the cellphone search warrants or the information obtained when the warrants
were executed in December 2017.
A-4459-17T3
9
On February 6, 2018, the State supplied additional discovery in the drug
and witness tampering cases, including defendant's signed Miranda card, a
photograph of defendant, the confidential informant's drawing of a house, two
search warrant affidavits, three evidence receipts and a lab report. For the first
time, the State also separately alerted defendant concerning the cellphone search
warrants and searches, providing copies of the search warrant affidavits and two
discs containing hundreds of pages of encrypted data seized two months earlier
during the search of the phones. On February 8, 2018, the State provided
additional discovery in the witness tampering case.
Six days later, defendant filed a motion to exclude the late cellphone data
discovery under Rule 3:13(f). The trial court heard oral argument on the motion
on February 21, 2018, and noted its ongoing frustration with the State because
of its numerous inaccurate representations during prior proceedings that
discovery was complete. The court noted the State's failure to search the phones
for two-and-a-half years, its decision to conduct the searches after the plea cutoff
proceeding in the drug case, its failure to disclose the December 2017 cellphone
searches and their results during proceedings in January and February 2018, and
its belated disclosure on February 6, 2018, of the search warrants and
information seized from the phones, only ten days before jury selection in the
A-4459-17T3
10
trial was to begin. The court did not rule on defendant's motion to exclude the
information seized from the phones and instead required the State to submit a
certification detailing the discovery history in the cases and the reasons for its
failures and delays in providing discovery. The court adjourned the trial.
On March 6, 2018, the State finally responded to defendant's request for
discovery regarding two witnesses who the confidential informant claimed
observed the witness tampering; the State's response was that it did not have a
full name or contact information for either individual because they were
unknown to the confidential informant.
On March 8, 2018, the deputy attorney general filed the court-ordered
certification on the discovery history of the cases and mailed defendant a copy
of ostensibly all discovery in both the drug and witness tampering cases.
On April 4, 2018, the court heard further argument on defendant's motions
to compel discovery of information concerning payments to the confidential
informant and to exclude the cellphone records. The deputy attorney general
acknowledged that discovery concerning the confidential informant should have
been disclosed at the outset of the drug case because the distribution charge
against defendant was dependent on the confidential informant's testimony. The
deputy attorney general also admitted to the "possibility" that the State made a
A-4459-17T3
11
conscious choice not to disclose the identity of the confidential informant until
ordered by the court. The deputy attorney general conceded that the State's
agreement with the confidential informant was an important and relevant
document in the drug case, but could offer no explanation why it had not been
turned over to defendant in discovery. The court rejected the deputy attorney
general's explanation that the delays in the production of discovery were the
result of State Police actions, noting the Attorney General has supervisory
authority over the State Police.
The court heard argument on defendant's motion to bar the information
seized from the cellphones at trial. The deputy attorney general indicated the
State perceived it had a strong case against defendant on the drug charges and
the information from the cellphones was "something additional and
supplemental for trial." She further acknowledged her failure to disclose the
State's plan to obtain the search warrants for the phones at the October 23, 2017
pretrial conference and plea cutoff proceeding "gets pretty close to a sandbag"
of defendant, deprived defendant of the ability to make a knowing decision about
how to proceed in the case, deprived defense counsel of the ability to provide
good legal advice and was not fair.
A-4459-17T3
12
The deputy attorney general represented that the decision to move to
consolidate the drug and witness tampering cases was not made until after the
pretrial proceeding in the drug case, and the motion was made without regard to
the effect it would have on the scheduled trial date. She further admitted the
motion was filed on November 15, 2017, immediately following the trial
adjournment request telephone conference during which she did not disclose that
the motion would be filed, and that, prior to filing the motion, the State had not
provided any discovery to defendant in the witness tampering case.
The deputy attorney general also agreed the evidence in the witness
tampering case should have been provided separately as discovery in the drug
case because it pertained to the confidential informant who allegedly witnessed
the drug distribution charged in the indictment. The deputy attorney general
acknowledged that even after the consolidation of the cases on January 12, 2018,
there were "significant items . . . missing" from the discovery due to defendant.
On April 10, 2018, the trial court rendered an oral decision on defendant's
motions and sua sponte dismissed the witness tampering charge, vacated the
order consolidating the cases, and barred the State's use of evidence seized from
the cellphones following the October 23, 2017 pretrial conference in the drug
A-4459-17T3
13
case.8 The court's sua sponte actions were founded on its determination that the
New Jersey Division of Criminal Justice "displayed . . . a cavalier and arrogant
indifference to its discovery obligation[s]," and "violated [its] inherent
obligation to promote fundamental fairness and protect the basic rights of people
who [are] accused of committing a crime." The court noted that the "Division
has made representations . . . it didn't keep" and "affirmatively failed to disclose
information . . . which any reasonable person would know that the [c]ourt
wanted."
The court detailed the numerous court proceedings that occurred during
the two matters,9 recounted the State's failure to provide discovery in the witness
tampering case until after the consolidation motion was filed, and explained that
it would not have granted the consolidation motion if it had known th at, due to
the State's failure to honor its obligation to provide automatic and broad
8
The court also ordered that the State provide in discovery information related
to payments made by the State to the confidential informant. The State does not
challenge that portion of the court's order and we therefore do not address it.
9
The court noted that it reviewed the audio recordings of all of the prior
proceedings in the two cases and incorporated the record of those proceedings
into its decision. The State, however, failed to include in the record on appeal
the transcripts of all of the proceedings, other than the grand jury hearings,
occurring prior to the January 12, 2018 hearing on the State's consolidation
motion. See R. 2:5-4(a).
A-4459-17T3
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discovery, the witness tampering case was not prepared for the trial that was
scheduled only weeks later. The court observed that the State's failure to provide
the discovery deprived defendant's counsel of the opportunity to provide
effective assistance because she could not adequately assess the State's case or
prepare for trial. The court found the State's failure to timely provide the
discovery in the witness tampering case "constitutes an egregious carelessness
tantamount to [a] suppression of evidence against . . . defendant."
The court further found the State committed a "significant additional
discovery violation" by choosing to wait until after the pretrial proceeding in the
drug case to obtain the search warrants and information from the cellphones and
by misrepresenting at the pretrial hearing and in the pretrial memorandum that
discovery was complete. The court found the State had the cellphones for more
than two years before the search warrants were sought and made a strategic
decision not to search the phones prior to the pretrial conference and plea cutoff
proceeding, instead opting to obtain the search warrants and information from
the cellphones only after defendant rejected the State's plea offer and the court
entered the pretrial memorandum. The court also noted the State's consistent
and inexplicable failure to disclose the search warrants and the search of the
cellphones during the October 23, 2017 proceeding and the numerous court
A-4459-17T3
15
interactions and exchanges with defense counsel following the issuance of the
warrants in November 2017 and prior to February 6, 2017. The court found the
State's actions constituted a "deliberate failure to candidly share . . . important
information in this case."
The court concluded the State's actions unfairly deprived defendant of the
opportunity to make a fully informed decision concerning the State's plea offer
at the October 23, 2017 pretrial conference and plea cutoff proceeding, and
reasoned that "the best way to address this matter is simply to restore the
defendant to the exact position that he was in on the day that the pretrial
memorandum was completed [in the drug case] and the day that the State
represented that its discovery was complete and that it was ready for trial." The
court found it was "fair to make the State honor that choice" and "fundamentally
unfair to let the State make representations of plea cutoff and then act to
strengthen [its] case in anticipation of trial" through, not just the motion to
consolidate, but "the search warrants concerning the phones." The court
concluded that defendant's decision to proceed to trial "was not fully informed"
because his lawyer did not have all the State's discovery and thus could not
"provide him with the most effective assistance possible."
A-4459-17T3
16
The court also determined it was inappropriate to reward the State's
"unilateral decision making" which caused months of delay in bringing
defendant's drug case to trial following the plea cutoff proceeding. The court
vacated its January 12, 2018 order consolidating the drug and witness tampering
cases for trial, finding the State had failed to provide discovery in the witness
tampering case prior to filing the motion for consolidation and
"sandbagg[ed] . . . defendant." The court found the State's consolidation motion
was "designed to increase the likelihood of [defendant's] conviction," the State
indicated it would provide discovery to defendant when he was arraigned on the
witness tampering charge but did not, and the State's failure to provide the
discovery both before and after the consolidation motion was "borne of abject
indifference and a complete lack of due diligence." The court dismissed the
witness tampering indictment with prejudice, finding the State's conduct
appalling and noting discovery in the witness tampering case "should have been
provided substantially earlier at or near the time of the arraignment at a
minimum."
The court barred the State from using at trial any evidence it provided in
discovery after the October 23, 2017 pretrial conference, where the State
disingenuously represented that discovery was complete. The court permitted
A-4459-17T3
17
defendant to use at trial evidence provided by the State after October 23, 2017,
including the cellphone records, without "opening the door" to the State's use of
the evidence. The court, however, ordered that the State could move at trial to
utilize evidence produced following the October 23, 2017 pretrial conference if
defendant relied on such evidence in the first instance at trial. The court also
directed that the State provide all outstanding discovery related to the drug case.
The court entered an April 10, 2018 order dismissing the witness
tampering indictment, vacating the order consolidating the drug and witness
tampering indictments for trial, barring the State's use of any discovery produced
following the October 23, 2017 pretrial conference in the drug case, and
allowing defendant to rely on such evidence without opening the door to the
State's use of such evidence. We granted the State's motion for leave to appeal
the court's order.
On appeal, the State presents the following argument for our
consideration:
POINT I
THE JUDGE ABUSED HIS DISCRETION BY
IMPOSING UNNECESSARILY DRACONIAN
SANCTIONS TO ADDRESS DISCOVERY ISSUES
THAT WERE NOT INTENTIONAL, EGREGIOUS,
OR PREJUDICIAL.
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II.
We consider the State's argument in the context of basic principles
applicable to the State's grave responsibilities in its prosecution of criminal
cases. "Because of the overwhelming power vested in his [or her] office, [a
prosecutor's] obligation to play fair is every bit as compelling as his [or her]
responsibility to protect the public." State v. Torres, 328 N.J. Super. 77, 94
(App. Div. 2000) (second alteration in original); see also RPC 3.8 (outlining
special responsibilities of prosecutors). Our Supreme Court has explained that
"[t]he heightened responsibilities of prosecutors include faithful adherence to
all . . . protections accorded defendants[.]" State v. Harvey, 176 N.J. 522, 529
(2003) (alterations in original) (quoting State v. Carreker, 172 N.J. 100, 115
(2002)). Among those protections is the defendant's right to discovery.
A "[d]efendant's post-indictment right to discovery is automatic" under
our Rules of Court. State v. Gilchrist, 381 N.J. Super. 138, 145 (App. Div. 2005)
(quoting Pressler, Current N.J. Court Rules, cmt. 3.1 on R. 3:13-3 (2006)). A
criminal defendant is "entitled to broad discovery under Rule 3:13-3," State v.
Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), and our Supreme
Court has recognized "our longstanding case-law view in favor of the exchange
A-4459-17T3
19
of pretrial discovery and the court rule that makes pretrial access to the evidence
a critical right for all defendants," State v. Scoles, 214 N.J. 236, 257 (2013).
The State has a continuing duty to provide the requisite discovery during
the course of a criminal proceeding. R. 3:13-3(f). However, where, as here, a
trial court determines that the State has failed to comply with its discovery
obligations under the Rule, the court
may order such party to permit the discovery of
materials not previously disclosed, grant a continuance
or delay during trial, or prohibit the party from
introducing in evidence the material not disclosed, or it
may enter such other order as it deems appropriate.
[Ibid.]
"A trial court's resolution of a discovery issue is entitled to substantial
deference and will not be overturned absent an abuse of discretion." State v.
Washington, 453 N.J. Super. 164, 179-80 (App. Div. 2018) (quoting State v.
Stein, 225 N.J. 582, 593 (2016)). However, we will not defer to discovery orders
that are "wide of the mark" or "based on a mistaken understanding of the
applicable law." Id. at 180 (quoting State v. Hernandez, 225 N.J. 451, 461
(2016)). We review "the meaning or scope of a court rule . . . de novo" and "do
not defer to the interpretations of the trial court . . . unless we are persuaded by
A-4459-17T3
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[its] reasoning." Ibid. (second and third alterations in original) (quoting State
v. Tier, 228 N.J. 555, 561 (2017)).
Prior to addressing the court's exercise of its discretion in imposing the
specific sanctions at issue here, we first reject the State's contention that no
sanctions are appropriate because the discovery violations, which the State does
not dispute, were inadvertent. Stated differently, the deputy attorney general
representing the State on appeal 10 contends in part that we should reverse the
court's order because the "State did not intentionally or carelessly withhold the
discovery." We are unconvinced.
The court's findings concerning the State's violation of the discovery rules
are well-supported by sufficient evidence in the record. After representing to
the court at defendant's arraignment on the witness tampering charge that it
would provide the discovery in the matter to defendant, the State simply,
undeniably and without any explanation failed to do so. As the trial court aptly
noted, discovery in the witness tampering case was pertinent to the drug case,
10
The deputy attorneys general representing the State in the trial court have not
made an appearance in this appeal. The deputy attorney general representing
the State on this appeal, who ably handled this matter with professionalism and
candor, did not participate in any of the proceedings before the trial court and
was not involved in the State's discovery infractions that are the subject of this
appeal.
A-4459-17T3
21
but the State failed to honor its continuing obligation to supply that discovery in
the drug case as well. Moreover, as we have already detailed, the State's
discovery improprieties did not end there; it planned to obtain search warrants
for the cellphones prior to the October 23, 2017 plea cutoff proceeding in the
drug case but never advised defendant or the court of that fact and instead
misrepresented to the court and in the pretrial memorandum that discovery was
complete. More importantly, the State permitted defendant to proceed to plea
cutoff, and reject the State's plea offer, without all of the discovery the State
planned to obtain and use later at trial. The State further did not advise the court
of the warrants or information harvested from the phones during the telephone
conference on its trial adjournment request, the argument on the consolidation
motion or the February 5, 2017 conference. When offered an opportunity to
provide a reason for its consistent and ongoing lack of disclosure, the State
offered nothing more than a belatedly candid acknowledgment of its
inexplicable failures.
The State also failed to disclose its intention to make the consolidation
motion at the time it requested a trial adjournment for purported witness
unavailability issues, filing the motion only hours after the adjournment was
secured even though it had never provided any discovery related to the witness
A-4459-17T3
22
tampering case in either that case or the drug case. When the consolidation
motion was argued, the State not only failed to disclose the existence of the
cellphone search warrants and the information seized from the cellphones, it did
not disclose that it had not provided complete discovery to defendant in the
witness tampering case or the deputy attorney general's then realization she had
not been provided all of the discovery from the State Police in that matter.
Instead, the State was content to ignore its failures to comply with its discovery
obligations and let defendant and his counsel proceed to a trial scheduled only
weeks later where the State intended to request that an extended term life
sentence be imposed if defendant was convicted.
Here, the trial court generously found the State's conduct constituted gross
carelessness and indifference, but regardless of how the conduct is
characterized, it is wholly inconsistent with the State's obligation to "promote
fairness and protect the basic rights of all citizens, even those [it] believe[s] to
be guilty." State v. Clark, 347 N.J. Super. 497, 508 (App. Div. 2002). We have
observed that "[a] criminal trial is not a jousting match or board game in which
strategy outweighs fairness and rules are celebrated in the letter and not the
spirit," ibid., but here the State's conduct, failure to honor its discovery
obligations, lack of disclosure, and strategy to gather and slowly mete out
A-4459-17T3
23
additional discovery to strengthen its case against a defendant who rejected a
plea offer is the paradigm of abhorrent and unacceptable gamesmanship not only
with defendant, but also with the court.
The State asserts that the court's order dismissing the witness tampering
indictment constitutes a "draconian sanction[]" in response to "inadvertent
discovery violations that did not prejudice defendant and for which any number
of less severe remedies would have readily sufficed." While the court possesses
"inherent powers" to dismiss an indictment when the State fails to comply with
discovery rules, State v. Abbati, 99 N.J. 418, 429 (1985); see also R. 3:13-3(f),
the court should only grant a motion to dismiss an indictment in limited
circumstances, State v. Zembreski, 445 N.J. Super. 412, 424-25 (App. Div.
2016). "One of the guiding principles to be followed by a court when
considering a motion to dismiss an indictment is that 'a dismissal of an
indictment is a draconian remedy and should not be exercised except on the
clearest and plainest ground.'" Ibid. (quoting State v. Williams, 441 N.J. Super.
266, 271 (App. Div. 2015)).
"Before a dismissal of an indictment is warranted . . . there must be a
finding of intention inconsistent with fair play and therefore inconsistent with
due process, or an egregious carelessness or prosecutorial excess tantamount to
A-4459-17T3
24
suppression." State v. Washington, 165 N.J. Super. 149, 156 (App. Div. 1979)
(quoting State v. Laganella, 144 N.J. Super. 268, 282 (App. Div. 1976)). "In the
absence of these conditions," the court should dismiss an indictment "only if
otherwise there would be manifest and harmful prejudice to defendant." Ibid.(quoting Laganella, 144 N.J. Super. at 282-83). However, "the public interest
in the completion of criminal trials weighs against [dismissing an indictment]
where other remedies are available," State v. Ruffin, 371 N.J. Super. 371, 388
(App. Div. 2004), and "this drastic remedy is inappropriate where other judicial
action will protect a defendant's fair trial rights," Clark, 347 N.J. Super. at 508.
We share the trial court's justifiable outrage at the State's conduct and
failure to honor its discovery obligations and duty to make disclosures where
appropriate. Nonetheless, we are not convinced the court correctly exercised its
discretion by dismissing the indictment charging witness tampering, and reverse
that portion of the court's order. Dismissal of an indictment due to a discovery
violation is a "last resort because the public interest, the rights of the victims
and the integrity of the criminal justice system are at stake." Ruffin, 371 N.J.
Super. at 384. That is particularly true where the charge to be dismissed is one
for witness tampering, and the putative victim is an important witness in the
prosecution of other significant criminal charges.
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Here, dismissal of the witness tampering indictment was unnecessary for
the protection of defendant's right to a fair trial on that charge because the court's
decision, which we affirm, to vacate the consolidation order protected
defendant's right to a fair trial in the witness tampering case. See, e.g.,
Zembreski, 445 N.J. Super. at 426-27 (finding no abuse of discretion where the
court denied defendant's motion to dismiss a superseding indictment after the
court offered defendant more time to prepare for trial and the defendant
declined); Clark, 347 N.J. Super. at 508 (holding a trial judge "properly denied
the defense motion to dismiss the indictment" after the prosecutor failed to
disclose information regarding a witness). Indeed, the court recognized "that it
ha[d] arguably taken appropriate ameliorative action by vacating the order
consolidating the two indictments for trial."
"The choice of sanctions appropriate for discovery-rule violations is left
to the broad discretion of the trial court." State v. Marshall, 123 N.J. 1, 134
(1991). The court properly exercised that discretion by vacating the
consolidation order to remedy the State's failure to provide discovery in that
matter prior to the filing of the consolidation motion and its failure to provide
complete discovery in the matter after the motion was filed. The court's vacation
of the consolidation order, however, eliminated any prejudice to defendant's
A-4459-17T3
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ability to prepare his defense to the witness tampering charge because the trials
on the drug and witness tampering indictments will proceed separately in
accordance with defendant's understanding at the time of the October 23, 2017
pretrial conference and plea cutoff proceeding.
Moreover, the late delivery of the discovery in the witness tampering case
did not prejudice defendant in making his decision to reject the plea offer in the
drug case. Although no discovery on the witness tampering charge had been
provided prior to the October 23, 2017 plea cutoff proceeding, defendant and
his counsel were aware they did not have the discovery, but did not deem its
absence relevant to defendant's determination to accept or reject the State's plea
offer in the drug case. That is, defendant rejected the plea offer in the drug case
with full knowledge he did not have the discovery from the witness tampering
case.
We therefore affirm the court's order vacating its January 12, 2018 order
consolidating the drug and witness tampering cases. We reverse the court's
order dismissing the witness tampering indictment; the sanction is unnecessary
to protect defendant's right to a fair trial.
We do not find the court abused its discretion by barring the State's use in
the drug case of the discovery it produced following the October 23, 2017
A-4459-17T3
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proceeding at which the State represented that discovery was complete. We
recognize that "the sanction of preclusion is a drastic remedy and should be
applied only after other alternatives are fully explored[.]" Washington, 453 N.J.
Super. at 190 (alteration in original) (quoting State v. Scher, 278 N.J. Super.
249, 272 (App. Div. 1994)). Rule 3:13-3(f) "specifically provides for discretion
in formulating a sanction for a discovery violation," Clark, 347 N.J. Super. at
509, and expressly allows for an order "prohibit[ing a] party from
introducing . . . the material not disclosed," R. 3:13-3(f). "An adjournment or
continuance is a preferred remedy where circumstances permit." Clark, 347 N.J.
Super. at 509. However, "repeated and flagrant derelictions" of the discovery
rules "may require application of the sanction of preclusion." State v. Burnett,
198 N.J. Super. 53, 61 (App. Div. 1984).
Here, the Court determined the State's discovery violations, including its
failure to provide discovery in the witness tampering case and in the drug case,
and other conduct amounted to "repeated and flagrant derelictions" of the
discovery rules and that preclusion of discovery produced after execution of the
pretrial memorandum was the appropriate remedy. We agree. The court shall
only conduct a pretrial conference and schedule a case for trial "[i]f the court
determines that discovery is complete." R. 3:9-1(f). The State represented in
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the pretrial memorandum that, but for one document, discovery was complete,
but at the same time already planned to seek a search warrant for the cellphones
and knew it failed to provide the discovery in the witness tampering case in the
drug case. Defendant relied on that representation in deciding to proceed to
trial, and the court relied on that representation in scheduling the matter for trial.
The State then obtained search warrants for defendant's cellphones, obtained
information from the phones, withheld disclosure of the search warrants and
information for two months, and made disclosure only nine days before jury
selection was to begin. The State's conduct was not the result of inadvertence
or the late discovery of previously unknown evidence; it was the product of an
intentional and hidden strategy.
The State contends the trial court "effectively created a new rule wherein
the State is barred at plea cutoff from conducting further investigation to
strengthen its case or respond to potential defenses at trial." The State
mischaracterizes what occurred. The rule has always been that the State must
provide full and automatic discovery to a criminal defendant, cannot
misrepresent to the court that discovery is complete when it has an active plan
to obtain discovery in the future, is not permitted to fail to disclose that it applied
for search warrants and obtained additional discovery materials after a pretrial
A-4459-17T3
29
memorandum has been executed and a trial date has been set, and cannot delay
the production of newly discovered information for two months while knowing
that there are only weeks until a pending trial. The trial court did not create a
new rule. It simply imposed an appropriate sanction for the State's clear
violation of well-established rules and principles that provide the foundation for
a criminal defendant's right to a fair trial. Cf. Washington, 453 N.J. Super. at
191 (setting aside the trial judge's exclusion of DNA evidence because the State
did not intentionally mislead the defendant, the report's completion "was
delayed for the straightforward reasons set forth in the certifications " regarding
the State Police's conduct, and the prosecutor immediately supplied the report
once available).
The State never sought relief from the pretrial memorandum from the
court, but instead chose to employ a strategy of quietly developing and thrusting
upon defendant and the court additional discovery with the goal of bolstering its
case after defendant rejected the State's plea offer. There is no doubt the State
acted improperly and unfairly to gain an unfair advantage over defendant
following his final rejection of the plea offer. The deputy attorney general
admitted as much in April 2018, after the nature and extent of the State's conduct
was exposed; she acknowledged the State's actions—her actions—"get[] pretty
A-4459-17T3
30
close to a sandbag," deprived defendant of the ability to make knowing decisions
about how to proceed in the drug case, denied his attorney the ability to give
him effective legal advice and were not fair.
Under such circumstances, we discern no basis to conclude the court 's
decision to bar the State's use of the discovery disclosed after the October 23,
2017 proceeding constituted an abuse of discretion. See id. at 179-80. To the
contrary, the court's measured and well-reasoned decision barring the State's use
at trial in the drug case of the discovery produced following the October 23,
2017 proceeding constituted a justified and proper exercise of the court's
discretion.
For these reasons, we affirm the court's order precluding the State from
using discovery submitted after the October 23, 2017 pretrial memorandum. We
read the remainder of the court's order, which conditions the State's use of the
discovery materials provided after October 23, 2017, upon the approval of the
court if defendant uses the materials in the first instance, as nothing more than
the court's exercise of its standard gatekeeping function concerning the
admission of evidence at trial. Stated differently, we do not read that portion of
the court's order limiting the State's use of the post-October 23, 2017, discovery
materials to prohibit the State's use of the materials, to the extent admissible
A-4459-17T3
31
under the Rules of Evidence, to address, refute or rebut issues raised by
defendant's use, if any, of those materials. Thus, contrary to the State's
contention, the order does not give "defendant free reign [sic]" to use the
materials while precluding the State from using the records "in any way."
Affirmed in part, reversed in part and remanded for further proceedings.
We do not retain jurisdiction.
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