telephonically December 3, 2019
appeal from an interlocutory order of the Superior Court of
New Jersey, Law Division, Camden County, Indictment No.
Anne Shashoua, Special Deputy Attorney General/Acting
Assistant Prosecutor, argued the cause for appellant (Jill S.
Mayer, Acting Camden County Prosecutor, attorney; Linda Anne
Shashoua, of counsel and on the brief).
J. Lipari argued the cause for respondent (Helmer Conley
& Kasselman, PA, attorneys; Jack J. Lipari, of counsel
and on the brief).
Judges Hoffman, Currier and Firko.
leave granted, we consider whether the trial court erred in
redacting the statement of a State's witness procured by
defendant's investigator. Defendant intended to use the
unredacted portions of the statement at trial. After
reviewing the statement in camera, the trial court permitted
the redaction of portions of the statement it and defendant
deemed inculpatory. When the redacted statement was turned
over to the State on the eve of trial, the State recognized a
discrepancy in the redacted document, material to the
witness's version of the events.
State requested the court reconsider its redaction and order
defendant to provide the entire unredacted statement. The
motion was denied. Because we conclude the procedure employed
here was contrary to the deep-rooted discovery practices
established under Rule 3:13-3 and State v.
Williams, 80 N.J. 472 (1979), we reverse.
investigating a fatal shooting in February 2016, police
learned that Steve had witnessed the events. The day after
the occurrence, Steve met with detectives from the police
department and prosecutor's office and provided a
recorded statement of what had transpired. He stated he knew
the shooter from the area and that he was called
"Fatboy." Steve identified defendant in a photo
display as the shooter; he did not know defendant's real
was subsequently charged in an indictment with first-degree
murder, in violation of N.J.S.A. 2C:11-3(a)(1)(2);
second-degree possession of a weapon for an unlawful purpose,
in violation of N.J.S.A. 2C:39-4(a); and second-degree
unlawful possession of a weapon, in violation of N.J.S.A.
years after the shooting, an investigator retained by defense
counsel contacted Steve, stating he wished to clarify some
"things [he] saw in the police reports." The
investigator recorded the conversation.
December 2018, defendant filed a motion seeking in camera
review and redaction of portions of the statement given by
Steve to defendant's investigator. Defendant sought an
order for the court to conduct an in camera review of the
transcript "to determine what portions of the statement
the defendant intends to use at trial, and whether any
portions of the statement are work product. . . ."
oral argument on the motion, defense counsel advised the
court he did not think anything in the statement qualified as
work product. He argued instead that he was not required to
turn over anything inculpatory "that he did not intend
to use. . . ." Counsel stated further he would not refer
to any redacted portion of the statement during his
cross-examination of the witness.
State agreed that defendant was not required to turn over a
statement of a State's witness that it did not intend to
use. However, if defendant decided to use any portion of the
witness statement, the entire statement had to be disclosed.