On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford and Handler. For reversal and reinstatement -- Justice Schreiber. The opinion of the court was delivered by Sullivan, J. Schreiber, J., dissenting.
Defendant was convicted of entry without breaking with intent to rob, assault with intent to kill and armed robbery. He was sentenced, in the aggregate, to a minimum term of thirty and one-half years and a maximum of thirty-seven years, to be served in State Prison. On appeal, the Appellate Division, in an unpublished opinion, reversed his conviction on the ground that certain discovery granted the State pursuant to R. 3:13-3(b)(4) was contrary to our recent holding in State v. Mingo, 77 N.J. 576 (1978). The discovery related to information received and photographs used in an interview which defense counsel and his investigator had with the victim during which she identified a photograph of defendant.
The Appellate Division ruled that the discovery rule did not extend to such material in defense counsel's file which the defense did not intend to use at trial. Otherwise, the Appellate Division said, it would intrude upon the defendant's right to have the effective assistance of counsel. Certification was granted, 79 N.J. 485 (1979), to review this question. We affirm.
The criminal episode involved the March 22, 1976 armed robbery of an Army-Navy store in Elizabeth. The victim was alone in the store when a young man entered, displayed a knife and, after robbing the victim, stabbed her several times as she knelt on the floor praying. Defendant was arrested about two months later and charged with the crime.
Defense counsel and his investigator, in their preparation of the case, interviewed the victim on two occasions and showed her several photographs. On May 25, 1976, the first occasion, when shown a photograph of someone other than defendant, she said that he had "the features of the man who could have done it" but did not identify him as her attacker. However, on June 17, 1976, when defense counsel showed her three other photographs, she selected defendant's as that of her assailant.
Prior to trial the State moved for reciprocal discovery of the photographs shown the victim and the memoranda made of such interviews. Defense counsel objected on the ground that he did not intend to use this material at trial. However, the trial court granted the motion. A defense motion for leave to appeal was denied.
After receiving the material, the State served notice on defense counsel and his investigator that they were being subpoenaed to testify as State's witnesses at defendant's trial. On a motion to quash the subpoenaes, the trial court ruled that under the circumstances the issue did not involve the attorney-client privilege and that if the facts could not otherwise be adequately conveyed to the jury, he would allow defense counsel and the investigator to be called as State's witnesses. His objection having been noted, defense counsel, in order to avoid having to testify, then entered into a stipulation as to the facts of his June 17 interview with the victim and the photographs shown to her.
At trial, the State, in addition to having the victim identify defendant in court, also brought out her identification of a photograph of defendant shown her by defense counsel at
the June 17, 1976 interview he had with her.*fn1 The State also entered on the record defense counsel's stipulation as to the June 17 interview and placed into evidence the photographs displayed at that time. The prosecutor, in summation, repeatedly emphasized not only this out-of-court identification but also the fact that it was obtained by defendant's own attorney, saying:
Mrs. Santullo was shown photographs many times and was unable to make an identification. When she did finally identify the defendant -- and she did identify the defendant -- but it wasn't the police that showed her the picture. Mr. Waldman, the defense attorney, showed her the picture which she identified on June 17 as the defendant Samuel Williams. You think Mr. Waldman wanted her to identify that picture?
That wasn't police work, that was Mr. Waldman's work when she identified the picture of Samuel Williams.
After the jury had retired to deliberate, it submitted a question to the court, answered by stipulation of the parties, regarding which photographs the defense had shown the victim and the dates they were shown. A verdict of guilty was returned thereafter.
We conclude that the trial court, in extending the criminal reciprocal discovery provisions of R. 3:13-3 to inculpatory material which defense counsel had in his file, trespassed on defendant's right to effective assistance of counsel. The material was obtained during defense counsel's preparation for trial and, since it was inculpatory, counsel obviously did not intend to use it at trial.
The reciprocal discovery provision in R. 3:13-3 is sound. Its thrust is that the State is entitled to know in advance what evidence a defendant intends to use at trial so that it may have a fair opportunity to investigate the veracity of such proof. To that end, as set forth in paragraph (b) of the rule, the State is entitled to discovery of the following which are within the possession, custody or control of defense counsel:
(1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, * * *;
(2) any relevant books, papers, documents or tangible objects, * * *;
(3) the names and addresses of those persons known to defendant whom he may call as witnesses at trial and their written statements, if any, including memoranda ...