State of New Jersey v. Michael Nunez

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3197-11T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
June 10, 2014
v.
APPELLATE DIVISION
MICHAEL NUNEZ,
Defendant-Appellant.
________________________________________________________________
Submitted April 29, 2014 – Decided June 10, 2014
Before Judges Fisher, Espinosa and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
10-06-01884.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lauren S. Michaels, Assistant
Deputy Public Defender, of counsel and on
the brief).
Warren W. Faulk, Camden County Prosecutor,
attorney for respondent (Robin A. Hamett,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
We reverse defendant's murder conviction because the trial
judge permitted the State to bolster its case by calling
defendant's investigator to testify to a prior consistent
statement of the State's only eyewitness in violation of
defendant's right to counsel.
A jury convicted defendant Michael Nunez of first-degree
murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree
possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-
4(a) (count two); second-degree unlawful possession of a
firearm, N.J.S.A. 2C:39-5(b) (count three); third-degree
endangering an injured victim, N.J.S.A. 2C:12-1.2(a) (count
four); and second-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7(b) (count five). He was sentenced to an
aggregate term of seventy-three years in prison with an eighty-
five percent term of parole ineligibility pursuant to the No
Early Release Act, N.J.S.A. 2C:43-7.2.
In the early morning of December 13, 2009, Rashon Brown was
found unconscious and later died of gunshot wounds. Two days
later, Benjamin Searles, who was in jail on drug charges, gave a
statement to police naming defendant as the shooter. On
November 12, 2010, a week before pleading guilty to third-degree
distribution of a controlled dangerous substance in a school
zone, Searles was interviewed by defense investigator Harry
Reubel. A year later, Searles testified to his version of the
shooting at defendant's trial.
2 A-3197-11T2
Searles testified that he went with defendant, Brown, and
another man to a club around midnight and stayed for two or
three hours drinking heavily. When they left the club,
defendant drove the car. At approximately 4 or 5 a.m., they
stopped in front of an apartment complex. Brown wanted to use
his cellphone to look up some telephone numbers, but the battery
was dead. Defendant tried to take Brown's phone to see if
defendant's battery could be used. Searles testified that
defendant became upset when Brown slapped defendant's hand away
from the cellphone. Defendant and Brown then exited the car
and, after a physical fight, defendant took a pistol from an
area near the console of the car and shot Brown three times.
Later that morning, Searles was arrested for selling drugs.
Two days later, after finding out that Brown had died, Searles
asked to speak to the prosecutor. Searles ultimately pleaded
guilty to third-degree drug distribution within a school zone
and the prosecutor recommended a three-year sentence with an
eighteen-month term of parole ineligibility. Searles had a
substantial prior criminal record involving multiple drug
convictions, and the charge carried a maximum of ten years in
prison with a five-year parole disqualifier.
Defense counsel primarily attacked Searles's credibility by
concentrating on the defense theory that Searles had fabricated
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the story to obtain a favorable plea agreement. The State
called the assistant prosecutor involved in Searles's plea
agreement who testified that Searles's cooperation in
defendant's murder case did not affect the terms offered by the
State.
Defense counsel also pointed out inconsistencies between
Searles's December 15, 2010 statement to the police and his
testimony at trial. Over a defense objection, the judge allowed
the State to call defendant's investigator to the stand. While
reviewing his defense investigation report, which was marked for
identification, long-time Public Defender Investigator1 Reubel
testified for the State in detail about what Searles told him in
November 2010 when Reubel interviewed him in the jail as part of
his defense investigation. Reubel's testimony confirmed that
Searles had identified defendant, Reubel's own client, as the
killer.
Another witness called by the State testified that he and
two others had beaten defendant after defendant admitted
shooting Brown. This witness did not tell the police about the
purported confession until seventeen months after the shooting,
1
Defense counsel brought out on cross-examination that Reubel
did not work for counsel, but for the Public Defender's Office.
Presumably in an effort to avoid a mistrial or later reversal,
the State objected on the basis that it was prejudicial to
defendant and the judge cautioned counsel.
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when he was facing drug charges. The State also called to the
stand a jailhouse informant, Sampson, who testified that
defendant had confessed the murder to him.
Defendant did not testify at trial, but the jury saw a
videotaped statement he gave the police in which he stated that
he was beaten because his attackers blamed him for Brown's
murder. Defendant did not confess to the murder in this
videotape.
On appeal defendant raises the following issues:
POINT I: THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY PERMITTING CUMULATIVE
AND UNDULY PREJUDICIAL HEARSAY TESTIMONY
FROM THE DEFENSE INVESTIGATOR, WHICH
IMPROPERLY BOLSTERED THE TESTIMONY OF THE
STATE'S ONLY ALLEGED EYEWITNESS.
POINT II: NUNEZ WAS DENIED A FAIR TRIAL
WHEN THE PROSECUTOR IMPROPERLY VOUCHED FOR
AND BOLSTERED JAILHOUSE-INFORMANT SAMPSON'S
CREDIBILITY BY ELICITING TESTIMONY THAT HIS
PLEA WAS CONDITIONED ON TRUTHFUL TESTIMONY
AT TRIAL, TELLING THE JURY IN SUMMATION THAT
SAMPSON FACED GRAVE CONSEQUENCES IF HE LIED,
AND SUGGESTING THAT SAMPSON WAS CREDIBLE
BECAUSE HE HAD PROVIDED FAR MORE INFORMATION
THAN WAS REQUIRED TO SECURE A PLEA DEAL.
(NOT RAISED BELOW)
POINT III: IN THE FACE OF A POLICE
INVESTIGATOR'S REPEATED REFERENCES TO HAVING
OBTAINED NUNEZ'S PHOTOGRAPH FROM A DATABASE
OF PEOPLE WHO HAD "BEEN THROUGH THE SYSTEM,"
THE JUDGE'S FAILURE TO PROVIDE A CURATIVE
INSTRUCTION OR THE MODEL CHARGE ON POLICE
PHOTOGRAPHS WAS PLAIN ERROR AND DENIED NUNEZ
A FAIR TRIAL. (NOT RAISED BELOW)
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POINT IV: THE CUMULATIVE EFFECT OF THE
AFOREMENTIONED ERRORS DENIED NUNEZ A FAIR
TRIAL.
POINT V: THE DEFENDANT'S SENTENCE OF 73
YEARS WITH 60 1/4 YEARS WITHOUT PAROLE IS
EXCESSIVE.
The Sixth Amendment to the United States Constitution and
Article I, Paragraph 10 of the New Jersey Constitution both
guarantee criminal defendants the "unfettered access and
assistance" of counsel. State v. Scoles, 214 N.J. 236, 258
(2013). "That right clearly extends to the assistance of
experts to aid in the accused's defense." Ibid. A thorough
defense investigation is also part of the right to counsel.
State v. Williams, 80 N.J. 472, 478-79 (1979).
The judge permitted the State to call Reubel to testify
based on N.J.R.E. 803(a)(2), which provides that a witness's
prior statement is admissible if it is "consistent with the
witness'[s] testimony and is offered to rebut an express or
implied charge against the witness of recent fabrication or
improper influence or motive[.]" The judge accepted the State's
argument that, because the defense had attacked Searles's
credibility by demonstrating inconsistencies between his first
statement to police and his trial testimony, an allegation of
recent fabrication existed justifying the introduction of a
prior consistent statement. Reubel testified that Searles
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implicated defendant as the shooter in the defense interview,
consistent with Searles's trial testimony and Searles's
jailhouse interview with law enforcement. Reubel shed no light
on the purported differences between Searles's first statement
to law enforcement and Searles's trial testimony.
Defendant argues that he did not allege recent fabrication,
but rather that Searles gave a false statement seeking favorable
treatment from the State for the charges pending against him.
Searles thus already had the motivation to lie a week before he
entered his guilty plea, when he spoke with Reubel. Thus, the
primary defense attack on Searles's credibility was that he lied
to obtain a better plea deal, not that he made up the story
recently.
The State argues that even if there is no allegation of
recent fabrication, a prior consistent statement may be admitted
to rebut the allegation of a motive to lie, even if it was given
after the motive arose. See State v. Muhammad, 359 N.J. Super.
361, 386-89 (App. Div.) (holding that N.J.R.E. 803(a)(2) does
not in every circumstance require that a prior consistent
statement be made before a motive to lie arose to be admissible,
although "whether the statement was made before the asserted
motive or influence to fabricate is a substantial factor in
determining relevance"), certif. denied, 178 N.J. 36 (2003). In
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the factual situation represented here, it is difficult to
justify the admission of Searles's prior consistent statement,
given after Searles had a reason to cooperate with the State for
his own benefit.
We are compelled to reverse, however, not because a prior
consistent statement may have been improperly introduced to
bolster Searles's credibility. Rather, it is because that prior
consistent statement came from a defense investigator, a part of
the defense team whose job it was to interview the witness as an
aid to defense counsel; a witness whom the State should not have
been permitted to call.
We have held that it is reversible error for a court to
order the defense to provide investigation notes to the State
and then allow the State to call a defense investigator as a
rebuttal witness to testify to prior consistent statements given
by a child-victim. State v. Atkins, 405 N.J. Super. 392, 405-06
(App. Div. 2009). Unlike these circumstances, in Atkins we
noted that other witnesses could have been called by the State
to testify to the child's prior consistent statements. Ibid.Regardless of the availability of other witnesses to testify
about a prior consistent statement, or the strength of the
defense allegation of recent fabrication, the State's use of a
defense investigator is error of constitutional proportion.
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Defense counsel objected to the State calling the defense
investigator on the basis that the prior consistent statement
should not be admitted pursuant to counsel's reading of N.J.R.E.
803(a)(2), not because the State calling a defense investigator
intruded into the attorney-client relationship or defendant's
right to counsel. We thus review the judge's decision to allow
the investigator to be called by the State pursuant to the plain
error standard of review. R. 2:10-2; see State v. Nelson, 318
N.J. Super. 242, 249-50 (App. Div.) (citing to Rule 1:7-2 in
determining that when defense counsel's trial objection is not
stated in understandable legal terms, and, unlike this case, the
issue is raised on appeal for different reasons, reversal should
occur only if the plain error standard is met), certif. denied,
158 N.J. 687 (1999).
Generally, a party's failure to object to testimony at
trial "may indicate that counsel perceived no prejudice." State
v. Loyal, 386 N.J. Super. 162, 173-74 (App. Div.) (finding no
prejudice in defense counsel's summation where the State did not
object at trial), certif. denied, 188 N.J. 356 (2006). Here,
however, defense counsel recognized the damage that the defense
investigator could inflict. Counsel objected to the State
calling Reubel at trial, although relying on the Rules of
Evidence rather than defendant's right to counsel.
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In 1978, our Supreme Court eloquently explained the
violation of both the attorney-client privilege and right to
counsel caused by allowing a part of the defense team to be used
by the State. In commenting on the State's use of a defense
handwriting expert not called by the defense, Justice Pashman
stated:
Reliance upon the confidentiality of an
expert's advice itself is a crucial aspect
of a defense attorney's ability to consult
with and advise his client. If the
confidentiality of that advice cannot be
anticipated, the attorney might well forego
seeking such assistance, to the consequent
detriment of his client's cause. The
protection from unwarranted disclosure we
today mandate is an indispensable element of
a criminal defendant's constitutional right
to the effective assistance of counsel.
[State v. Mingo, 77 N.J. 576, 587 (1978).]
In Mingo, the error was deemed harmless "in the unique
circumstances of th[e] case" because the defendant admitted
writing the note in question. Id. at 588. Relying on Mingo, we
have held that the State's questioning of a defense expert about
another defense expert's report, which was not used by the
defense at trial, violates a defendant's constitutional right to
counsel and furnishes an independent ground for reversal, even
though not raised on appeal. State v. Spencer, 319 N.J. Super.
284, 300-01 (App. Div. 1999).
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Mingo was confined to experts. Mingo, supra, 77 N.J. at
585. The Court later extended the holding in Mingo to other
defense materials that a defendant does not intend to use at
trial. Williams, supra, 80 N.J. at 480-81. In Williams, our
Supreme Court determined the scope of the reciprocal discovery
rule, Rule 3:13-3, as it relates to inculpatory defense
material. The Court reversed a conviction, finding a violation
of the right to counsel where the State used at trial defense
attorney and defense investigator notes of the photographic
identification of defendant made to them by the State's witness.
Id. at 477-79. The Court said, "To hold otherwise would
infringe on a defendant's constitutional right to the effective
assistance of counsel because of the chilling effect it would
have on defense investigation." Id. at 478. Reubel's
investigation report detailing his interview with Searles was
prepared exclusively for defendant, who had no intention of
using it at trial.2 Calling Reubel to testify relying on his
report, rather than using the notes as occurred in Williams, did
not absolve the State from its intrusion on defendant's rights.
2
It is unclear from the record how the State became aware of
Reubel's interview of Searles. Even if defense counsel gave
Reubel's report to the State, the State could not call Reubel as
a witness. Mingo, supra, 77 N.J. at 586.
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The State's use at trial of inculpatory defense information
violated defendant's right to effective assistance of counsel.
Having 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.
How can a defense attorney properly investigate defendant's case
if the lawyer must be concerned with possible use of the
investigator's work product to assist the State? When would
defense counsel send an investigator to interview the State's
witnesses if a consistent statement could be used by the State
to bolster its case? "Defense counsel would be hesitant to make
an in-depth investigation of the case for fear that inculpatory
material would be disclosed which might have to be turned over
to the State." Id. at 478-79. Just as defense reports not
intended to be used at trial are not discoverable, id. at 481,
neither is defense testimony available to the State. We
accordingly hold that the testimony of a defense investigator
not called by defendant is not available to the State.
The State's claim that the admission of Reubel's testimony
at worst represents harmless error is unpersuasive. See State
v. Macon, 57 N.J. 325, 340 (1971) ("[A] new trial shall be
ordered if there is a reasonable doubt as to whether the
constitutional error contributed to the verdict."); R. 2:10-2.
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Analyzing this case under the plain error standard of review, we
conclude that there is a reasonable doubt as to whether the
admission of Reubel's testimony contributed to the verdict.
The impact of defendant's own investigator, whether hired
by current defense counsel or by the Public Defender's Office,
testifying on behalf of the State to enhance the credibility of
the only eyewitness to the crime cannot be deemed harmless
because Searles's credibility was crucial to the State's case.
In light of our determination, we need not address the remaining
issues raised by defendant. We do note that it was improper for
a police investigator to testify that he obtained defendant's
photo from a database of people who had "come through the
system." See State v. Taplin, 230 N.J. Super. 95, 99-100 (App.
Div. 1998) (reversing a theft conviction after the State
introduced into evidence the defendant's "mug shots" because a
jury could have inferred that the defendant had a prior criminal
record from the photographs).
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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