On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-076.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from a conviction of simple assault of two individuals after a trial de novo in the Law Division. The sole basis for appeal before the Law Division, was that the City of Asbury Park municipal court erred when it denied defendant's motion to bar the testimony of prosecution witnesses whose anticipated testimony had not been disclosed before trial in the form of written summaries. Judge Anthony J. Mellaci, Jr. rejected defendant's argument and, after reviewing the record evidence anew, entered judgments of conviction on the two assaults. In her present appeal, defendant renews her discovery argument. We affirm.
The case was initiated by two victims' citizen complaints.
R. 7:2-2a(1). Defendant filed citizen complaints charging that she was the victim of assault by the same two individuals. The municipal court denied defendant's motion for disclosure of testimonial summaries of anticipated witnesses. The City of Asbury Park municipal prosecutor represented the State in prosecuting the two victims' complaints, as well as defendant's complaint. The municipal court dismissed defendant's complaint upon the municipal prosecutor's motion, without opposition, for lack of proof after she declined to testify, and found defendant guilty of both assaults. The municipal court imposed sentences on each assault consisting of one year of probation conditioned upon completion of an anger management course, a no-contact order, punitive fines and mandatory fees and penalties.
In the trial de novo, Judge Mellaci agreed that defendant was not entitled to pre-trial disclosure of testimonial summaries. In deciding the merits of the complaints, he relied on the testimony of the victims, one of whom had a previous dating relationship with defendant, and two eyewitnesses, concluding beyond a reasonable doubt that defendant had assaulted the two victims. The judge stated that he re-imposed the sentence imposed by the municipal court. However, we note that the Law Division's judgment of conviction that is included in the record before us omits re-imposition of the terms of probation condition on anger management, and the no-contact order, which were ordered by the municipal court.
Defendant renews her argument before us that the State was obliged to create and disclose written summaries of the anticipated testimony of its witnesses. Having failed to do so, defendant argues that the convictions should be vacated, as the witnesses should have been barred from testifying. We disagree.
Neither the Constitution nor our court rules compel the discovery defendant sought. The court reasonably exercised its discretion in denying the requested discovery. Moreover, modification of the discovery rules is appropriately left to the Supreme Court, in exercise of its rule-making power.
Although the State is obliged under due process principles to disclose exculpatory evidence and impeachment materials, there is no general constitutional right to discovery in criminal cases. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963) (due process requires disclosure of exculpatory information); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed.2d 104, 108 (1972) (Brady requires disclosure of evidence affecting credibility if witness's reliability may affect guilt or innocence); Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed.2d 30 (1977) (there is no general constitutional right to discovery in a criminal case); State v. Marshall, 148 N.J. 89, 269, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997). In short, constitutional principles did not mandate the creation and disclosure of the summaries of anticipated testimony that defendant sought in this case.
The right to discovery in criminal cases is largely a creation of the Rules of Court. However, as Judge Mellaci correctly held, our discovery rules do not oblige the State to create written summaries of the anticipated testimony of all prosecution witnesses. Rule 7:7-7b(8) requires disclosure of "record[s] of statements, signed or unsigned" of persons whom the prosecution knows to have relevant evidence or information, but only if the records already exist. Cf. R. 7:7-7b(11) (requiring the production of an expert's report or "a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion"). Establishing such an ...