                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0677-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CRAIG SZEMPLE,

     Defendant-Appellant.
___________________________

                    Argued November 4, 2019 – Decided February 21, 2020

                    Before Judges Rothstadt and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Morris County, Indictment No. 91-12-1269.

                    Paul J. Casteleiro argued the cause for appellant.

                    John K. McNamara, Jr., Assistant Prosecutor, argued
                    the cause for respondent (Fredric M. Knapp, Morris
                    County Prosecutor, attorney; John K. McNamara, Jr.,
                    on the brief).

PER CURIAM
       Defendant Craig Szemple appeals from the denial of his motion to compel

the State to provide him "with copies of any and all notes, reports, statements or

other type of writings memorializing any interviews, talks, discussions" with his

former wife, Theresa Boyle, after her father, Michael Boyle, delivered to the

prosecutor's office a letter utilized by the State to convict defendant at his second

murder trial.1 On appeal, defendant argues:

             POINT I

             THE TRIAL COURT ERRED IN TREATING . . .
             DEFENDANT'S     MOTION     TO    COMPEL
             DISCLOSURE OF EXCULPATORY EVIDENCE
             NECESSARY FOR DEFENDANT TO FILE A
             MOTION FOR A NEW TRIAL AS A SUCCESSIVE
             PETITION FOR POST CONVICTION RELIEF.

             POINT II

             THE TRIAL COURT FAILED TO CONSIDER THE
             STATE'S ONGOING OBLIGATION TO DISCLOSE
             EXCULPATORY EVIDENCE AND ERRED IN
             CONCLUDING THAT . . . DEFENDANT IN
             FAILING TO RAISE A SUPPRESSION OF
             EVIDENCE CLAIM IN HIS PREVIOUS POST
             CONVICTION RELIEF PETITION LACKED
             DILIGENCE BARRING HIS ENTITLEMENT TO
             RELIEF IN A SUCCESSIVE PETITION FOR POST
             CONVICTION RELIEF.

1
  The spelling of Theresa's name in the transcripts and submissions differ. We
adopt the spelling as it appears in transcripts of trial and hereafter use the
Boyles's given names to avoid confusion. We mean no disrespect or familiarity
by so doing.
                                                                             A-0677-18T2
                                         2
             POINT III

             THERE MUST BE A MECHANISM UNDER THE
             LAW TO ENFORCE THE PROSECUTOR'S
             CONTINUING    DUTY    TO   DISCLOSE
             EXCULPATORY    EVIDENCE   WHEN    A
             DEFENDANT PRESENTS A WELL FOUNDED
             BASIS TO BELIEVE THAT SUCH EVIDENCE
             EXISTS.

Because the motion judge erred in treating defendant's motion to compel

discovery as a successive petition for post-conviction relief (PCR), and because

the State has an ongoing obligation to provide same to defendant, we reverse.

       As related in our Supreme Court's decision on defendant's first appeal,

following defendant's arrest for murder, the letter at the center of this appeal was

found by Michael while he was helping Theresa move from the residence she

had shared with defendant. State v. Szemple, 135 N.J. 406, 411 (1994). Michael

did not disclose his discovery to Theresa and did not deliver the letter to the

prosecutor's office until many months later. Id. at 411-12. The unsigned,

undated letter, addressed to Theresa, 2 contained a first-person description of a

homicide:

             My first hit was an act of treachery, the ultimate deceit.
             4 Bullets in the back 1 in the neck and a broken promise
             made at the parting of the oncoming river. I never did

2
    The salutation read: "Dearest companion and trusted (new) wife[.]"
                                                                            A-0677-18T2
                                         3
             tell his mother what happened to him. The second I
             pulled that trigger, I became larger than death to all of
             my associates.

             [Id. at 411.]

      The State moved to reopen its case after it had rested during defendant's

first murder trial in order to introduce the letter. 3 Id. at 410. After the trial court

ruled the letter was admissible and denied defendant's motion for a mistrial, id.

at 410-11, "[t]he prosecutor presented evidence that tied the statement in the

letter to the murder," id. at 412. We granted defendant leave to appeal to review

the trial court's rulings and reversed the denial of defendant's mistrial motion;

we affirmed the trial court's evidentiary rulings, including that related to the

letter. State v. Szemple, 263 N.J. Super. 98, 99 (App. Div. 1993). The Supreme

Court affirmed. Szemple, 135 N.J. at 433.

      The letter was admitted into evidence at the second trial, and defendant

was convicted by jury of first-degree murder, N.J.S.A. 2A:113-1 and N.J.S.A.




3
   The State also moved to introduce another admission of guilt it alleged
defendant made. Id. at 410. That evidence is not germane to this appeal.



                                                                                A-0677-18T2
                                           4
2A:113-2.4 Defendant's subsequent PCR petition was denied. 5 He filed the

instant motion almost seven years later.

       The motion judge viewed the motion as "sort of a second petition for

[PCR], although it's not captioned in that fashion," and ruled it was procedurally

barred under Rule 3:22-4(b) because the factual predicate for the relief sought

"was known at the time that first [PCR] petition was filed and addressed by the

trial court as well as the Appellate Division," and defendant did not raise the

issue. The judge also concluded that defendant, "under the guise of a . . .

potential motion for a new trial" advanced "purely speculative" claims, and did

not show good cause to justify discovery in connection with a PCR matter,

quoting State v. Marshall 6 at length, including the Court's holding:

                    "There is no post-conviction right to fish through
             official files for belated grounds of attack on the
             judgment or to confirm mere speculation or hope that a
             basis for collateral review may exist."

                   ....



4
  We affirmed defendant's conviction on direct appeal. State v. Szemple, No.
A-0696-94 (App. Div. Sept. 19, 1997).
5
  We affirmed the PCR denial. State v. Szemple, No. A-1744-09 (App. Div.
Apr. 27, 2011).
6
    148 N.J. 89, 270 (1997).
                                                                          A-0677-18T2
                                        5
                  "However, where a defendant presents a PCR
            court with good cause to order the State to supply the
            defendant with discovery that is relevant to defendant’s
            case and not privileged, the court has the discretionary
            authority to grant such relief."

      We review a trial court's decision on discovery matters under an abuse of

discretion standard. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div.

2009) (citation omitted), aff'd, 201 N.J. 229 (2010). "[T]he decision of the trial

court must stand unless it can be shown that the trial court palpably abused its

discretion, that is, that its finding was so wide of the mark that a manifest denial

of justice resulted." State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div.

2010) (alteration in original) (quoting State v. Carter, 91 N.J. 86, 106

(1982)). "That is, '[w]e generally defer to a trial court's disposition of discovery

matters unless the court has abused its discretion or its determination is based

on a mistaken understanding of the applicable law.'" Pomerantz Paper Corp. v.

New Cmty. Corp., 207 N.J. 344, 371 (2011) (alteration in original) (quoting

Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005)). "A trial court

decision will constitute an abuse of discretion where 'the "decision [was] made

without a rational explanation, inexplicably departed from established policies,

or rested on an impermissible basis."'" State v. Salter, 425 N.J. Super. 504, 514




                                                                            A-0677-18T2
                                         6
(App. Div. 2012) (alteration in original) (quoting State v. Triestman, 416 N.J.

Super. 195, 202 (App. Div. 2010)).

        We agree with defendant that he filed a request for discovery, not a second

PCR petition or request for discovery in connection with a PCR matter. This

was not, as the State contends, a "captioning error" that justified a PCR analysis.

As such, we determine the motion judge mistakenly exercised his discretion by

considering the motion as a PCR application and denying defendant's request

for discovery.

        Defendant's counsel reviewed discovery that revealed the State

interviewed Theresa once on December 9, 1991, in connection with a matter

unrelated to the murder. Deducing that the State would have attempted to

interview Theresa after Michael delivered the letter, counsel inquired of the

prosecutor if Theresa "was interviewed by members of your office or other law

enforcement entity following the disclosure . . . by Michael . . . and to request

copies of any and all statements, interviews and/or reports of interviews of

Theresa" after Michael disclosed the letter. Defendant contends the State denied

that request 7 and did not respond to his counsel's ensuing correspondence in




7
    The record does not contain the State's denial.
                                                                           A-0677-18T2
                                         7
which he explained he was not asking for an inspection of the State's closed

files, but merely a response to requests for the prior requested material.

      Defendant's motion sought an order compelling provision of the same

information.   If the State had interviewed Theresa after the return of the

indictment, the results of that interview, in the form of a transcript, report or

other documentation, should have been provided to defendant in discovery. See

R. 3:13-3(b)(1)(F) and (G). We have recognized a constitutional requirement to

disclose any information that may reasonably lead to additional evidence

discrediting the State's witnesses or contradicting its narrative. See State v.

Williams, 403 N.J. Super. 39, 46-47 (App. Div. 2008) (concluding that the State

must disclose inadmissible evidence that could lead to related admissible

evidence), aff'd as modified, 197 N.J. 538 (2009). A defendant's right to "broad

discovery of the evidence the State has gathered in support of its charges" is

"automatic." State v. Scoles, 214 N.J. 236, 252-53 (2013) (citing R. 3:13-3).

"The onus is on the State to make the full file available[.]" Id. at 253. Further,

"the duty to disclose is ongoing[.]" State v. Cusick, 219 N.J. Super. 452, 462

(App. Div. 1987) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987)).

      Defendant is seeking nothing more than that to which he was entitled at

the outset of this case.    We find apt the United States Supreme Court's


                                                                             A-0677-18T2
                                        8
observation that its prior "decisions lend no support to the notion that defendants

must scavenge for hints of undisclosed Brady8 material when the prosecution

represents that all such material has been disclosed." Banks v. Dretke, 540 U.S.

668, 695 (2004). The Court held "[a] rule thus declaring 'prosecutor may hide,

defendant must seek,' is not tenable in a system constitutionally bound to accord

defendants due process." Id. at 696.

       Applying the same fair principles here, defendant is entitled to know if

the State interviewed Theresa and, if so, what was revealed during the interview.

Whether there was an interview, or whether the results of any interview would

provide grounds for the grant of a new trial is not the issue. The discovery will

inform defendant's attempt to establish grounds for a new trial.

       Defendant is not, as the State contends, seeking to forage through its file.

He is not embarking on a fishing expedition. Defendant is seeking very specific

information to which only the State is privy. Indeed, his attempts to obtain

answers to his questions directly from Theresa—who did not testify at either

trial—were unanswered, despite Theresa's receipt of six questions posed by

defendant's counsel seeking information about any contact by the prosecutor's

office after Michael delivered the letter. And, defendant need not show good


8
    Brady v. Maryland, 373 U.S. 83 (1963).
                                                                           A-0677-18T2
                                         9
cause to obtain discovery that the State was required to tender pre-trial. That

standard is applicable to PCR matters; this is not one.

      We do not express any opinion about whether defendant is entitled to a

new trial. If there is evidence of an interview with Theresa, we leave for another

day whether there is newly discovered evidence that is "(1) material to the issue

and not merely cumulative or impeaching or contradictory; (2) discovered since

the trial and not discoverable by reasonable diligence beforehand; and (3) of the

sort that would probably change the jury's verdict if a new trial were granted ."

State v. Carter, 85 N.J. 300, 314 (1981). All three prongs must be satisfied

before a new trial is warranted, State v. Ways, 180 N.J. 171, 187 (2004), and

defendant bears the burden to establish each prong, State v. Smith, 29 N.J. 561,

573 (1959).

      Reversed and remanded for proceedings consistent with this opinion,

including entry of an order granting defendant's motion. We do not retain

jurisdiction.




                                                                          A-0677-18T2
                                       10
