Opinion
DOCKET NO. A-3089-13T4
01-12-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. LIXANDRA HERNANDEZ and JOSE G. SANCHEZ, Defendants-Respondents.
Carol M. Henderson, Assistant Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General, attorney; Ms. Henderson, of counsel and on the brief). Michael P. Koribanics argued the cause for respondent Lixandra Hernandez (Koribanics and Koribanics, attorneys; Mr. Korbanics, of counsel and on the joint brief). Charles Alvarez argued the cause for respondent Jose G. Sanchez (Peter R. Willis LLP, attorneys; Mr. Alvarez, of counsel and on the joint brief). Laurie A. Kelly argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Gibbons, P.C., attorneys; Ms. Kelly, Lawrence S. Lustberg, and Jillian T. Stein, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-05-0090. Carol M. Henderson, Assistant Attorney General, argued the cause for appellant (John J. Hoffman, Acting Attorney General, attorney; Ms. Henderson, of counsel and on the brief). Michael P. Koribanics argued the cause for respondent Lixandra Hernandez (Koribanics and Koribanics, attorneys; Mr. Korbanics, of counsel and on the joint brief). Charles Alvarez argued the cause for respondent Jose G. Sanchez (Peter R. Willis LLP, attorneys; Mr. Alvarez, of counsel and on the joint brief). Laurie A. Kelly argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Gibbons, P.C., attorneys; Ms. Kelly, Lawrence S. Lustberg, and Jillian T. Stein, on the brief). PER CURIAM
On leave to appeal granted, the State appeals the trial court's order granting discovery to defendant. We affirm.
By way of background, the State seeks to prosecute the case through use of a confidential cooperating witness (CW). On three separate occasions, CW purchased cocaine from Lixandra Hernandez and Jose Sanchez (defendants). Defendants were later arrested. Defendants were indicted by the State Grand Jury and each charged with one count of: 1) second-degree conspiracy, contrary to N.J.S.A. 2C:5-2 (count 1); 2) first-degree distribution of cocaine in a quantity of five ounces or more, contrary to N.J.S.A. 2C:35-5a(1), 2C:35-5b(1), 2C:35-5c and 2C:2-6 (count 2); 3) second-degree distribution of cocaine within 500 feet of a public park, contrary to N.J.S.A. 2C:35-7.1 and 2C:2-6 (count 3), and; 4) third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) and 2C:2-6 (count 4).
Defendants received discovery from the State including CW's name, criminal history and cooperation agreement with the State. A portion of a cooperation agreement stated:
[CW] agrees to provide the State, through its representative and agents, any and all information within his current knowledge or gained in the course of his period of cooperation concerning the operation and
conduct of the Head Busters set of the Bloods Street Gang and any other Street Gangs, including but not limited to criminal activities, perpetrators thereof, meeting places. Methods of operation and communication, and identities and roles of the group's members and associates and the structure of the organization.
Through discovery, defendants learned CW was providing information on other investigations and sent a letter to the court requesting additional discovery. The request was granted. The State filed opposition, arguing the requested documents were not relevant or discoverable and were protected by the work-product privilege.
At a hearing, the judge required the State to produce all the documents pertaining to the other unrelated investigations, as well as a privilege log. Defendants then narrowed the discovery request to a privilege log detailing internal memoranda, e-mails, and the other investigations and:
[S]tatements of the witness, [CW], ... Investigative reports on any matters regarding [CW] on any of the four cases or any of the matters that we mentioned earlier. Summaries of any of the detectives in any of those matters regarding interviews of [CW]. Taping recordings and/or CDs of [CW].
The court held certain documents were not relevant, but still discoverable subject to redactions. The court ordered the State to search its computer system to find all e-mails that mentioned CW.
The court found, "in this case, [CW is the State's] witness and I think you have a right to do what you need to do to defend your client the best way. And I think that means letting [defendants] see these documents." The court ordered "[t]he State must release documents and other materials in its possession related to CW, subject to the appropriate redactions and the entry of a Protective Order . . . ." Specifically, the court determined "[n]ames must be redacted, locations must be redacted . . . there is a gang history that will not be released." The court also held the defendants "can get that stuff under the appropriate redactions to protect what the State wants to protect. But enough information so that they can review and make their own determination as to whether they want to use it or not . . . ."
On appeal, the State argues the trial court abused its discretion because the discovery requests go beyond what is required of the State, even considering the broad reach of discovery. The State avers the ordered electronic discovery, including e-mails, reports and notes, is overly burdensome to produce and not relevant. Additionally, the State argues the discovery sought by defendants is protected by the work-product privilege and also that CW's safety could be imperiled by its production. In opposition, defendants argue the discovery they seek on CW and his involvement as an informant is discoverable and relevant to show potential bias. Defendants also argue that the winnowing of their request by the judge through redactions and privilege log address the State's work-product claim and its concerns of potential harm to CW.
We review a trial court's determination of discovery requests under an abuse of discretion standard. See State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010). The judge's determination was, in essence, premised upon the relevance of the discovery sought. "Relevant evidence" is defined as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; State v. Gilchrist, 381 N.J. Super. 138, 146 (App. Div. 2005). In determining whether evidence is relevant, the inquiry should focus upon "the logical connection between the . . . evidence and a fact in issue." State v. Darby, 174 N.J. 509, 519 (2002) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)).
Courts have discretion in a determination to exclude or admit evidence including issues of relevance. We accord "substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998).
[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted.
[State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010) (quoting State v. Carter, 91 N.J. 86, 106 (1982))].
In reference to the arguments seeking to limit discovery we note defendants are entitled to broad discovery. Rule 3:13-3; State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009); State v. Ballard, 331 N.J. Super. 529, 538 (App. Div. 2000) ("Discovery is appropriate if it will lead to relevant and material information"). Discovery orders can be created as restrictive or broad as the court deems appropriate.
Upon motion and for good cause shown the court may at any time order that the discovery sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; confidential information recognized by law, including protection of confidential relationships and privileges; or any other relevant considerations.
The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone, and if the court thereafter enters a protective order, the entire text of the statement shall be sealed and preserved in the records of the court, to be made available only to the appellate court in the event of an appeal.
[R. 3:13-3(e)(1),(2)]
"Once an indictment has issued, a defendant has a right to automatic and broad discovery of the evidence the State has gathered in support of its charges." State v. Scoles, 214 N.J. 236, 252 (2013). "A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant." Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1197, 10 L. Ed. 2d 215, 219 (1963). The State is required to provide the defendants with the record of any statements, of any individual with relevant information or evidence in the case, which are within the possession, custody or control of the prosecutor. R. 3:13-3(b)(1)(G). The State is additionally required to provide all other exculpatory information or material, which would include pending charges, plea bargains or cooperation agreements for which a witness may be seeking favorable treatment for his or her testimony. State v. Long, 119 N.J. 439, 488-89 (1990).
Here, the court's order takes into account the factors provided for by the Rule. The requests were narrowed to a privilege log detailing internal memoranda, e-mails, the three other DCJ investigations, and statements and summaries involving CW. The requested discovery is rationally related to defendants' right to confront a key state witness as to potential bias, prejudice or motive and is relevant for that purpose.
Where a confidential informant is involved, the informant's identity is privileged and will generally not be disclosed in pre-trial discovery. See N.J.R.E. 516; State v. Florez, 134 N.J. 570, 578-81 (1994). The Court has precluded the production of information provided by an informant where discovery of that information will likely reveal the identity of the informant. See State v. Spivey, 179 N.J. 229, 241 (2004); Grodjesk v. Faghani, 104 N.J. 89, 96 (1986). Here, CW's name and criminal background was supplied by the State in the initial discovery offering. The State's argument that potential harm may come to CW if the requested evidence is provided is without merit since CW's pertinent identifying information has already been provided in this case as well as in other criminal prosecutions.
The State also contends it is overly burdensome to produce all electronic documents mentioning CW. We disagree. The scope of the discovery request was reasonably limited by the court. The court's holding that a required search through the State's online databases, using CW's name, nickname and criminal case numbers as search terms, was "reasonable under the circumstances."
Further, the court agreed to serve as the "gatekeeper" by conducting an in camera review. State v. Rosales, 202 N.J. 549, 562 (2010). The court recognized the consideration of proportionality by holding if "there's 5,000 documents . . . that's overly burdensome. And then [defendants] have to narrow [the discovery request] more. Because I'm not going to make them go through thousands and thousands [of electronic documents]." The discovery order was tailored to CW's involvement in other investigations referenced in the cooperation agreements. Given the nature of the discovery, i.e., electronically stored information, appropriate conditions were specified by the court. The court stated if the electronic search produced thousands of documents the request would be narrowed.
During oral argument the State posited it could serve as the appropriate "gatekeeper" in determining what was to be provided by conducting an independent search of the requested materials. In rejecting this position we do not imply the State would not honor its discovery obligation per Brady and Long. Rather, we conclude that the court's role as "gatekeeper" promotes a higher level of confidence in the decision-making process.
Although there is no specific provision under Rule 3:13-3, the "civil analog" may provide the court with appropriate guidance. See R. 4:10-2(f).
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We conclude that the court's determination as to the scope and manner of discovery was in accord with the exercise of sound discretion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION