This is a motion for the dismissal of an indictment because of prosecutorial misconduct.
The defendant contends that the prosecutor's office has engaged in a pattern of misconduct sufficiently egregious to warrant the dismissal of the indictment against him. The misconduct charged against the prosecutor deals with the failure
to provide discovery, the destruction of evidence and attempts to limit the exculpatory evidence available to the defendant.
The State maintains that dismissal of the indictment is too severe a sanction for any misconduct which may have occurred. Initially, they claim that the destruction of the evidence was accidental and could be replaced by other means and therefore the dismissal would be improper. In addition they argue the discovery sought and the evidence destroyed were not material to the defense and therefore the dismissal would be improper.
Neither party sets out the facts with any particularity, but the points in contention are not in dispute. The argument revolves around the destruction of certain evidence and the failure to disclose other evidence. It is within the trial judge's discretion to dismiss an indictment for failure to comply with the rules of discovery. State v. Laganella , 144 N.J. Super. 268 (App.Div.1976). An investigation of each area of dispute reveals a pattern of misconduct sufficient to warrant dismissal of the indictment against defendant.
I. Destruction of the January 6, 1978 Tape
It has been held that the duty of disclosure attaches in some form once the government has first gathered and taken possession of the evidence. United States v. Bryant , 439 F.2d 642 (D.C.Cir.1971). The court there held that "before a request for discovery has been made, the duty of disclosure is operative as a duty of preservation." At 651. The court felt that this was the only way to insure that disclosure would be possible at a later time.
The facts are undisputed that on January 6, 1978 a conversation was held on the telephone between defendant Hunt and Special Agent Maloney which was recorded by Agent Maloney. Under the rule of Bryant it would appear that the State was under a duty to preserve the tape as evidence once it came into its possession. However, the State attacks this conclusion on several fronts.
Initially, the State argues that the courts do not follow the ruling of Bryant and its progeny. It suggests that the New Jersey courts follow a "more realistic approach" in determining the State's duty to preserve evidence. The State directs the court to several authorities, but they do not conflict with the Bryant decision. In State v. Kaye , 176 N.J. Super. 484 (App.Div.1980), the court held that the consumption of an entire blood sample during testing did not deny a defendant his due process rights. The decision there was based on the Supreme Court's decision in United States v. Augenblick , 393 U.S. 348, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969). There the court decided that the government had acted in good faith and had made an earnest effort to preserve the evidence.
The State in the present action attempts to cast their action in the same light as those in Augenblick. They argue that by destroying the tape after he had listened to it and determined it was of no value, that Agent Maloney acted in good faith. However, it is not the prerogative of the State to determine what is or is not valuable evidence. They may not select exhibits for and on behalf of defendant. Alderman v. U.S. , 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 ...