               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0702-19T4

STATE OF NEW JERSEY,

     Plaintiff-Appellant,              APPROVED FOR PUBLICATION

                                                 January 7, 2020
v.
                                           APPELLATE DIVISION

TAJMIR D. WYLES,

     Defendant-Respondent.


           Argued telephonically December 3, 2019 –
           Decided January 7, 2020

           Before Judges Hoffman, Currier and Firko.

           On appeal from an interlocutory order of the Superior
           Court of New Jersey, Law Division, Camden County,
           Indictment No. 16-06-1621.

           Linda 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).

           Jack J. Lipari argued the cause for respondent (Helmer
           Conley & Kasselman, PA, attorneys; Jack J. Lipari, of
           counsel and on the brief).

     The opinion of the court was delivered by

CURRIER, J.A.D.
       By 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.

       The 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.

       In investigating a fatal shooting in February 2016, police learned that

Steve1 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 name.

1
    We use pseudonyms for the witness's privacy.


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      Defendant 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.

2C:39-5(b).

      Two 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.

      In 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. . . ."

      During 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.




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                                       3
      The 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. The prosecutor observed that defendant had to "take the good with

the bad."

      In an oral decision, the court agreed to review the statement in the

presence of defense counsel to determine which portions defendant intended to

use at trial. The court would then redact any work product or inculpatory

information. The redacted statement would be provided to the State. Defense

counsel was prohibited from referring to any of the redacted information at

trial. If counsel did so, the court would craft an "appropriate sanction."

      The in camera review took place in March 2019. A copy of the sealed

transcript from the hearing was provided to this court for our review. With

some minor changes, the court agreed to all of defendant's proposed redactions

on the grounds that the statements were inculpatory. The redacted statement

was subsequently given to the State.

      The day before trial in September 2019, defense counsel provided the

State with the redacted audio disc recording of the phone conversation between

the investigator and Steve. When the State compared the audio recording with

the redacted written statement, it found the audio version contained a phrase



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that had been removed from the written statement. The State believed the

redacted phrase "materially contradicted and altered the context" of Steve's

interview. In essence, the redaction made it sound as if the police had told

Steve the name of the shooter, rather than Steve's statement that he knew the

shooter by the name Fatboy.

      Therefore, the State requested the court reconsider its redaction order,

arguing the redacted statement altered the meaning of the witness's spoken

words. The court denied reconsideration but granted a stay of the trial pending

an emergent application to this court. We granted leave to appeal.

      The State presents a single issue for our consideration:

            LEAVE TO APPEAL SHOULD BE GRANTED IN
            THE INTEREST OF JUSTICE BECAUSE THE
            STATE WILL SUFFER IRREPARABLE INJURY
            FROM    THE    DENIAL     OF  CRITICAL
            PROSECUTORIAL DISCOVERY WHICH ALLOWS
            DEFENDANT TO PRESENT A PARTIAL VIEW OF
            THE EYEWITNESS'S CREDIBILITY.

      In reviewing a trial court's decision on a discovery matter, we apply an

abuse of discretion standard. State v. Brown, 236 N.J. 497, 521 (2019) (citing

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). Our

Supreme Court has recognized that this court "need not defer, however, to a

discovery order that is well 'wide of the mark,' . . . or 'based on a mistaken




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                                       5
understanding of the applicable law.'" State v. Hernandez, 225 N.J. 451, 461

(2016) (citations omitted).

      The criminal discovery rules are "geared towards broader mutual

discovery within constitutional limits." State v. Montague, 55 N.J. 387, 401

(1970).     The purpose of discovery is to "prevent surprise, eliminate

gamesmanship, and afford a party an opportunity to obtain evidence and

research law in anticipation of evidence and testimony which an adversary will

produce at trial." State v. DiTolvo, 273 N.J. Super. 111, 115 (Law Div. 1994)

(citation omitted).

      Under Rule 3:13-3(b)(2)(D), "[a] defendant shall provide the State with

. . . written statements, if any, including any memoranda reporting or

summarizing the oral statements, made by any witnesses whom the State may

call as a witness at trial." This provision also requires "defendant . . . [to]

provide the State with transcripts of all electronically recorded witness

statements . . . no . . . later than [thirty] days before the trial date . . . ." Ibid.

"The reciprocal discovery provision in [Rule] 3:13-3 . . . . entitle[s] [the State]

to know in advance what evidence a defendant intends to use at trial so that it

may have a fair opportunity to investigate the veracity of such proof." State v.

Williams, 80 N.J. 472, 478 (1979).




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        The Williams court explained that the purpose behind Rule 3:13-3 was

"to avoid having the State confronted at trial for the first time with written

statements or summaries of oral statements of its own witnesses . . . used to

attack the veracity of the witnesses' courtroom testimony." Ibid. Although a

defendant is not required to produce materials which he does not intend to use

at trial, or those which implicate his constitutional protections, including a

party's work product, once a defendant has declared an intention to use the

statement at trial, the State is permitted to inspect it. Id. at 478-79; R. 3:13-

3(d).     To address concerns that defendants may be discouraged from

conducting an in-depth investigation for fear that inculpatory information

might have to be turned over, mandatory disclosure is limited to statements

defendant intends to use at trial. Id. at 478-79.

        The trigger for disclosure, then, depends on whether a defendant intends

to use the information or statement it has obtained from a State's witness.

Here, months before any scheduled trial date, defense counsel moved before

the court for an in camera review of the transcript of the statement its

investigator took from Steve. The review was to "determine what portions of

the statement the defendant intend[ed] to use at trial." During oral argument

on the motion, defense counsel stated: "[W]e're here today . . . to ask the

[c]ourt to redact certain portions I have no intention of using, and leave intact



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what I would intend to use and turn that over so the State has fair notice of

what it is."

      It seems clear, considering its affirmative application to the court, that

defendant intended to cross-examine Steve at trial with the statement it

procured from him. Therefore, under Rule 3:13-3 and Williams, defendant

was required to turn over the entire statement to the State.

      Defendant disagrees. In his brief before this court, he states he wanted

to use some portions of the statement, but "depending upon the outcome of

[his] motion, [he] would have reserved the right not to disclose the entire

statement provided [he] chose not to use any of it." He sought the redaction of

any inculpatory or "unfavorable" information from the interview. In short,

defendant asked the court to distill the information defendant deemed

inculpatory, providing the State with a redacted statement. He wanted to see

what redactions the court would agree to make before he made a final decision

as to the statement's use.

      Defendant cites to an unpublished case of this court to support his

contentions. Under Rule 1:36-3, the unpublished opinion is not precedent or

binding on us.      Furthermore, the circumstances here differ from those

presented in the unpublished case.       In that case, we considered whether

disclosure of a recorded interview taken of a State's witness was required if



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                                        8
defense counsel would not decide or tell the court whether she intended to use

the statement at trial. We concluded that the proper recourse was for the trial

court to craft an appropriate remedy under Rule 3:13-3(f).

      Defendant here did not decline to advise the State if he intended to use

his investigator's recorded interview of Steve. To the contrary, he asked the

court to review the statement in camera and redact the portions of the

statement he did not intend to use. Counsel desired to use the statement, but

he wanted to know in advance of trial whether his requested redactions would

be accepted by the court. If so, counsel would provide the redacted statemen t

to the State.

      It is a tenet of our jurisprudence that a defendant must advise the State if

he or she intends to use a statement taken of a State witness. If so, defense

counsel must turn over the statement to the prosecution. Although defendant

here did not assert before the trial court that the work product doctrine

precluded the production of the statement, we reiterate the court's rejection of

that argument in Williams.2 Defendant's use of a witness's statement on cross-

examination for impeachment purposes effects a waiver of the work product

privilege. Williams, 80 N.J. at 478-79.

2
   Defendant contends on appeal that the statement is work product as it was
taken at the direction of his counsel. As stated, the statement is only protected
as work product if defendant does not intend to use it at trial. R. 3:13-3(d).


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      What occurred here is exactly what Rule 3:13-3 and Williams intended

to prevent. A defense investigator procured a recorded interview of a State

witness. Outside the presence of the prosecutor, defense counsel argued to the

trial court what portions of the statement he deemed inculpatory. The State

was deprived of the opportunity to counter those arguments.

      Only through an advertent error in the redaction of the recorded

interview was the State alerted that a redaction permitted by the court

significantly changed the context of the words spoken by Steve concerning his

knowledge of the shooter's identity. As redacted, the investigator's statement

was inconsistent with Steve's earlier statement given to detectives immediately

after the incident – certain to be effective impeachment on cross-examination.

      Had the editing mistake not revealed the material effect of the redaction,

under the procedure employed here, the State would never have seen the

complete unredacted interview. If the State still called Steve as a witness,

hampered by the contradictory investigator's interview, his testimony would be

categorized as inconsistent by the defense; his identification of the shooter

questioned. The result of depriving the State and its witness the opportunity to

view the entire statement is an injustice, in direct contravention of the truth -

seeking process and avoidance of gamesmanship established under the

discovery rules and supporting case law.       See Montague, 55 N.J. at 397



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                                       10
(declaring in-depth reciprocal discovery helps assure the trial court will fulfill

its purpose "to ascertain the truth") (quoting Jones v. Superior Court of Nev.

Cty., 372 P.2d 919, 920 (Cal. 1962)).

      In sum, if a defendant wishes to use a statement or information taken

from a State's witness, he or she must decide prior to trial, advise the State of

his or her intention, and produce the statement. Redaction of the statement

prior to disclosure is only appropriate for any asserted work product privileged

information. If a defendant refuses to declare his or her intentions prior to trial

regarding a statement, the court will consider the appropriate remedy under

Rule 3:13-3(f).

      Because defendant here signaled his intention to use the recorded

interview well in advance of trial, he was compelled to disclose the statement

under Rule 3:13-3(b)(2)(D) and Williams. It was a misapplication of the law

to accord defendant an in camera hearing for argument on the redaction of the

portions of the statement he did not want to use. A defendant is not entitled to

a one-sided review, and then consider whether he or she likes the redactions

prior to disclosing the statement. Under that procedure, the State is deprived

of the opportunity to assess the veracity of the statement.

      We reverse and remand to the trial court for entry of an order compelling

defendant to produce the unredacted transcript of Steve's statement if



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                                        11
defendant intends to use the statement at trial. Defendant must advise the trial

court of his intention regarding the statement within ten days of this remand.

If defendant declines to use the statement, its production is not compelled.

      Reversed and remanded. We do not retain jurisdiction.




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