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State v. Washington

Superior Court of New Jersey, Appellate Division

February 16, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
BRANDON M. WASHINGTON, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
BRANDON M. WASHINGTON, Defendant-Appellant.

          Argued January 23, 2018

         On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 17-05-0471.

          Jennifer B. Paszkiewicz, Assistant Prosecutor, argued the cause for appellant in A-1780-17 and respondent in A-2051-17 (Scott A. Coffina, Burlington County Prosecutor, attorney; Jennifer B. Paszkiewicz, of counsel and on the brief; Nicole Handy, Assistant Prosecutor, of counsel and on the brief in A-2051-17).

          Robin Kay Lord argued the cause for respondent in A-1780-17 and appellant in A-2051-17.

          Before Judges Yannotti, Carroll, and Leone.

          OPINION

          LEONE, J.A.D.

         The State has charged defendant Brandon M. Washington with two counts of attempted murder, and he is awaiting trial. In Docket No. A-1780-17, the State appeals the trial court's orders on November 2 8 and 29, 2017, and its denial of reconsideration on December 6, 2017. Those orders excluded the State's DNA evidence, denied its motion for a postponement of trial, and rejected its request for excludable time under N.J.S.A. 2A;I62-22, the speedy trial statute in the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. In Docket No. A-2051-17, defendant appeals the trial court's orders dated December 12 and 22, 2017, granting excludable time. We consolidate these back-to-back appeals for purposes of our opinion.

         We hold the State Police Lab's draft DNA report was not "within the possession, custody or control of the prosecutor" until the lab sent it to the county prosecutor, and in any event was not discoverable until the report was reviewed and approved by the lab. R. 3:13-3 (b) (1) (C) . Regardless of the speedy trial provisions, the trial court abused its discretion by excluding the DNA evidence rather than granting a continuance of trial under Rule 3:13-3(b)(1)(I) and -3(f), given the evidence's importance and the absence of surprise, prejudice, or a design to mislead.

         We also hold that under the speedy trial rule and statute, a case may be "complex" if it has "complicated evidence, " but time is excludable only if the complexity makes it unreasonable to expect adequate preparation for trial in the speedy trial period. R. 3:5-4(i)(7); see N.J.S.A. 2A: 162-22 (b) (1) (g) . Moreover, the provision addressing failures to produce discovery is a limit on excludable time. N.J.S.A. 2A:162-22(b)(2). The court properly excluded time sua sponte under N.J.S.A. 2A;I62-22(b)(1)(c), and retained jurisdiction to do so after the State sought and obtained leave to appeal. That provision excludes the time while an emergent relief request, or interlocutory appeal, is pending in this court. Time while the trial is stayed is excludable under N.J.S.A. 2A:162-22(b)(1)(1).

         As a result, we affirm in part, reverse in part, and vacate in part in A-1780-17. We affirm as modified in A-2051-17.

         I.

         The State alleges that, on February 16, 2017, defendant shot two men in the Veterans of Foreign Wars (VFW) Hall in Willingboro. The State asserts that after defendant fled, a pair of eyeglasses was found at the VFW Hall in the area where he struggled with one of the men. The State claims defendant was seen wearing similar eyeglasses both in a video taken minutes before the shooting, and in photographs on Facebook.

         The Burlington County Prosecutor's Office (BCPO) obtained DNA swabs from defendant and the two victims. On March 2, the BCPO took the swabs and the eyeglasses to the Central Regional Laboratory (State Police Lab) of the New Jersey State Police (NJSP).

         Meanwhile, the State arrested defendant and successfully moved for pretrial detention. On May 25, a grand jury indicted defendant with two counts of attempted murder in violation of N.J.S.A. 2C:5-1(a)(3) and N.J.S.A. 2C:11-3(a)(1). The court scheduled defendant's trial to begin November 28, and set defendant's release date as December 2.

         On November 16, the BCPO received an email from the State Police Lab attaching the one-page DNA lab report signed by "Christine Bless, Forensic Scientist I." The lab report stated that "[a] mixture of DNA profiles consistent with at least two contributors was identified" on the eyeglasses, and that defendant was "the source of the major DNA profile obtained." The BCPO emailed the lab report to defendant's counsel that same day.

         On November 17, the State filed a motion to declare that this was a complex case and that the sixty days from November 17, 2017 to January 17, 2018, were excludable time under N.J.S.A. 2A;162-22(b)(1)(g). The State also asked for a sixty-day adjournment of trial. Defendant orally moved to exclude the DNA results.

         At the November 2 8 hearing on the motions, the trial court found this was not a complex case, and denied the State's request for sixty days of excludable time. The court granted excludable time from the November 17 filing of the State's motion to its disposition on November 28, extending defendant's release date to December 13.

         In a November 2 9 letter-opinion, the trial court granted defendant's motion to prohibit the State from introducing the DNA evidence and denied the State's motion for an adjournment of trial. The court later issued corresponding orders.

         On November 30, the State filed a motion for reconsideration. It attached a certification from the prosecutor stating what he had learned concerning the timing in the State Police Lab. Defense counsel argued the prosecutor's certification was not based on personal knowledge as required under Rule 1:6-6. The court gave the State until December 5 to provide a certification from someone at the State Police Lab.

         On December 1, the State provided a certification based on personal knowledge from Bless of the State Police Lab. Her certification stated as follows. The eyeglasses and swabs were submitted by the BCPO to the State Police Lab on March 2. The eyeglasses were processed on March 3, and a swab from the eyeglasses was submitted for analysis on March 10. On July 20, Bless was assigned to analyze this evidence for DNA as a Forensic Scientist I. On July 25, Bless generated a lab report containing the result of her analysis, namely that there was a mixture of DNA profiles in which defendant was the major contributor.

         Bless's certification then described the review process:

6. On or about August 8, 2017 the required technical (peer) review of this case file was initiated. Shortly thereafter, the case file was forwarded to the NJSP DNA Technical Leader for approval of the DNA profile interpretation of [the swab from the eyeglasses]. This approval was required due to recent changes to the interpretation guidelines in the NJSP DNA Laboratory.
7. Due to a number of factors including, but not limited to, the current work load of the NJSP DNA Technical Leader, her supervisory responsibilities, NJSP DNA Laboratory management requirements including Bail Reform and expedited cases which affect the prioritization of case file review, the approval of the DNA profile interpretation of [the swab from the eyeglasses] was completed on November 3, 2017.
8. On November 3, 2017, the case file was returned to the technical (peer) reviewer in order to complete this review. The technical (peer) review was completed November 3, 2017.
9. Shortly thereafter, the DNA case file was submitted to a Forensic Scientist 3 to conduct the required administrative review. This administrative review was completed on November 8, 2017.
10. Due to clerical staff shortages, the finalized and approved DNA report was digitized and emailed from the NJSP DNA Laboratory to the Burlington County Prosecutor's Office on or about November 16, 2017.

         The prosecutor gave further explanation in his own certification and oral argument. He argued that during this period the State Police Lab "went from analyzing 15 allele sites to 26 allele sites which results in more accurate testing."[1] He certified this "recent change in the science and method by which interpretation of mixtures of DNA are conducted made the NJSP Lab Technical Leader the only employee qualified to interpret DNA mixtures in the absence of approved scientific procedures for this manner of analysis, " resulting in a "large number of cases which had to be analyzed by the NJSP DNA Lab Technical Leader." The prosecutor argued this temporary problem was subsequently resolved because protocols for such analysis were approved.

         At the December 6 hearing, defense counsel objected to the form of the certifications, [2] and to the failure to produce the full DNA packet.[3] The court expressed concern at these shortfalls but, "assuming for the sake of argument" the certifications were proper, the court denied reconsideration. The court granted the State's motion for a stay through December 7 to allow the State to file an emergent interlocutory appeal to this court.

         On December 7, we granted the State's application for permission to file an emergent motion. We stayed trial pending resolution of the emergent motion, and ordered briefing on the motion to be completed by December 14. On December 12, the trial court ruled the period between December 6 and December 14 was excludable time.

         On December 14, we granted the State's emergent motions for leave to appeal and for a stay of trial pending appeal. We expedited the appeal. We did not stay defendant's release from detention if authorized by law. On December 22, the trial court ruled the period between December 14, 2017, and February 28, 2018, was excludable time, and denied defendant's motion for a stay pending appeal of its December 12 and 22 orders. On December 23, we granted defendant's application to file an emergent motion. On January 9, 2018, we granted defendant's emergent motion for leave to appeal the December 12 and 22 orders, but denied his motion for a stay.

         In its appeal, the State raises the following issues:

POINT I - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE STATE'S MOTION FOR 60 DAYS OF EXCLUDABLE TIME PURSUANT TO N.J.S.A. 2A;162-22b(1)(d) and (g).
POINT II - EVEN IF THIS HONORABLE COURT CONCLUDES THAT THE STATE VIOLATED R. 3:13-3b(1)(i), EXCLUSION OF THE DNA EVIDENCE IS NOT THE APPROPRIATE REMEDY.
POINT III - IF THIS HONORABLE COURT DETERMINES THAT THE TRIAL COURT PROPERLY DENIED THE STATE'S MOTION FOR RECONSIDERATION OF THE TRIAL COURT'S DENIAL OF ITS MOTION FOR EXCLUDABLE TIME, THE COURT MUST REMAND THE MATTER TO THE TRIAL COURT FOR CONSIDERATION OF THE STATE'S ARGUMENT THAT DEFENDANT MUST BE DETAINED PURSUANT TO N. J.S.A. 2A;I62-22B(2) AND R. 3:25-4c(2).

         Defendant's appeal raises the following substantive point:

THIS COURT SHOULD ORDER DEFENDANT'S IMMEDIATE RELEASE BECAUSE THE TRIAL COURT LACKED JURISDICTION TO ENTER ITS DECEMBER 12, 2017 AND DECEMBER 22, 2017 ORDERS PRECLUDING HIS RELEASE. IN ADDITION, THE TRIAL COURT'S ORDERS PRECLUDING DEFENDANT'S RELEASE PENDING APPEAL ARE CONTRARY TO THIS COURT'S DECEMBER 14, 2017 ORDER STATING THAT DEFENDANT'S RELEASE IS NOT STAYED PENDING APPEAL.

         II.

         We first consider the State's appeal of the exclusion of its DNA evidence as a discovery sanction. We must hew to our standard of review. "A trial court's resolution of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion." State v. Stein, 225 N.J. 582, 593 (2016). We "need not defer, however, to a discovery order that is well 'wide of the mark, ' or 'based on a mistaken understanding of the applicable law.'" State v. Hernandez, 225 N.J. 451, 461 (2016) (citations omitted). "Our review of the meaning or scope of a court rule is de novo; we do not defer to the interpretations of the trial court . . . unless we are persuaded by [its] reasoning." State v. Tier, 228 N.J. 555, 561 (2017).

         A.

         Rule 3:13-3 requires the prosecutor to provide the defendant the "results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of the prosecutor." R. 3:13-3(b)(1)(C). The BCPO turned over the DNA report on the same day the BCPO received it from the State Police Lab. However, the trial court rejected the BCPO's argument that the State Police Lab as a State agency is not under the control of a county prosecutor's office.

         However, we have ruled that "[t]he State is not obliged to produce testing-related documents unless they 'are within the possession, custody or control of the prosecutor.'" State v. Robertson, 438 N.J.Super. 47, 68-69 (App. Div. 2014) (quoting R. 3:13-3(b)(1)(C)), aff'd on other grounds, 228 N.J. 138 (2017). Thus, in Robertson, we held the prosecutor had no obligation to provide the defendant with testing results generated by the private manufacturer of a breathalyzer device when the State returned the device to the manufacturer for service, because "[t]here is no evidence in the record to indicate that the State controls the repair-related data generated by" the manufacturer. Id. at 56, 69.

         Relying on Robertson, we have held a prosecutor had no obligation to provide reports of physical or mental examinations of the crime victim because there was "no evidence the State possessed the various records defendant sought." State v. Kane, 449 N.J.Super. 119, 133 (App. Div. 2017). "[E]vidence in the control of a crime victim - notwithstanding the victim's close cooperation with the prosecution - is not within the prosecutor's 'possession, custody or control.'" Ibid, (quoting Robertson, 438 N.J. Super, at 69). Both Kane and Robertson cited our Supreme Court's decision that a crime victim's home is not "within the possession, custody or control of the prosecutor" under Rule 3:13-3(b)(1)(E). State in Interest of A.B., 219 N.J. 542, 556 (2014).

         Our Supreme Court has also delineated the scope of "the possession, custody and control of the prosecutor" regarding law enforcement officers. State v. W.B., 205 N.J. 588, 608 (2011) (quoting R. 3:13-3 (c) (6), (7) and (8) (2007)). The Court held Rule 3:13-3 "encompasses the writings of any police officer under the prosecutor's supervision as the chief law enforcement officer of the county." Id. at 608. "If a case is referred to the prosecutor following arrest by a police officer as the initial process, or on a complaint by a police officer, local law enforcement is part of the prosecutor's office for discovery purposes." Ibid, (citations omitted); see State v. Richardson, 452 N.J.Super. 124, 133, 138 (App. Div. 2017).

         Under our Supreme Court's interpretation of Rule 3:13-3 in W.B., the trial court erred in ruling that Bless's July 25 draft report was "within the possession, custody or control of the [county] prosecutor" when it was actually in the possession custody, and control of the State Police Lab. R. 3:13-3(b)(1)(C). A county prosecutor has no supervisory authority over the State Police Lab, which is part of the NJSP. The NJSP is a Division within the Department of Law and Public Safety, which is headed and supervised by the Attorney General. N.J.S.A. 52:17B-2, -6. The State Police Lab - "notwithstanding [its] close cooperation with the prosecution - is not within the prosecutor's 'possession, custody or control.'" See Kane, 449 N.J. Super, at 133 (citations omitted). Thus, the trial court's ruling was "based upon a 'mistaken understanding of the applicable law, ' requiring reversal" of its exclusion decision. Tier, 228 N.J. at 5 65 (citation omitted).

         There is no evidence the BCPO even knew of let alone controlled Bless's DNA report until it was emailed to the BCPO on November 16. The BCPO provided it to defendant that same day. Thus, the BCPO promptly complied with its "continuing duty to provide discovery pursuant to this rule." R. 3:13-3 (f). As our Supreme Court recently noted, if proceedings occur "before lab tests are completed, the results, as well as other relevant items that later come into the State's possession, will be disclosed as part of the State's continuing discovery obligation." State in Interest of N.H., 226 N.J. 242, 257 (2016) (citing R. 3:13-3(f)). Thus, the BCPO did not commit a discovery violation.

         B.

         In State v. Robinson, 229 N.J. 44 (2017), our Supreme Court analyzed the different discovery rule for pretrial detention hearings, which provided "the prosecutor shall provide the defendant with all statements or reports in its possession relating to the pretrial detention application." Id. at 60-61 (quoting R. 3:4-2 (c) (1) (B) (eff. Jan. 1, 2017)). The Court stated: "Consistent with longstanding practice, statements and reports encompass reports that are in the possession of the prosecutor, law enforcement officials, ...


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