State v. Brian Tier(077328) (Mercer County and Statewide)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Brian Tier (A-73-15) (077328)

Argued January 30, 2017 -- Decided May 2, 2017

Timpone, J., writing for a unanimous Court.

In this appeal, the Court considers a question of first impression: What are a defendant’s post-indictment
reciprocal discovery obligations to the State regarding a defense witness’s oral statements?

On March 7, 2012, officers responded to a report from a neighbor that C.L. and defendant Brian Tier, her
boyfriend, were in a physical struggle. One officer knocked on C.L.’s front door, heard what sounded like a small
dog barking, and knocked again, directing the occupants of the residence to open the door. The officer then heard
the sound of a woman screaming, “Help! Help! He’s trying to kill me!” and kicked down the door. Upon entry, the
officers observed defendant on top of C.L., his hands around her throat, strangling her. The officers arrested
defendant and, while en route to the hospital, obtained a detailed statement from C.L. regarding the events. A
Mercer County grand jury returned an indictment, charging defendant with first-degree kidnapping and first-degree
criminal attempt to commit murder.

At a status conference, the State took issue with the witness list defendant produced because it listed the
names of three men but did not provide identifiers, addresses, or synopses of their anticipated testimony—which the
State alleged was in violation of Rule 3:13-3(b)(2)(C). In response, defendant agreed to produce identifiers and
addresses but argued against providing synopses. Defendant asserted that the Rule requires that synopses be
produced only if they have already been reduced to writing. Defense counsel affirmed that no witness statement
summaries had been prepared.

The trial court ordered the defense to produce witness synopses and to create them if they had not been
previously drafted. The court specifically ordered defense counsel to provide the State with the reason why the
witnesses are on the list. The Appellate Division summarily reversed the trial court’s order, reasoning that a
criminal defendant’s disclosures are carefully limited by the strictures of Rule 3:13-3(b)(2).

The trial court granted a motion to stay defendant’s trial pending the Court’s ruling on the motion. The
Court granted the State’s motion for leave to appeal. 226 N.J. 205 (2016).

HELD: A plain reading of Rule 3:13-3(b)(2)(C) requires production of witness statements only if those statements
have already been reduced to writing. Nothing in the rules precludes a trial court from ordering a defendant to
designate witnesses as either character or fact witnesses, however. The Court encourages practitioners to participate in
cooperative discovery in order to ease the burden on all parties involved.

1. Rule 3:13-3(b)(2)(C) reads, in pertinent part: “A defendant shall provide the State with all relevant material,
including, but not limited to . . . the names, addresses, and birthdates of those persons known to defendant who may
be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing
their oral statements.” This Rule has not seen much review. (p. 8)

2. In State v. DiTolvo, 273 N.J. Super. 111 (Law Div. 1994), the State moved to bar a witness’s testimony after the
defendant refused to provide a written summary of the proposed testimony. The court reasoned that the criminal
justice system had a strong interest in “broad and extensive discovery.” Finding no competing interest in favor of
defendant, and failing to discuss a criminal defendant’s special constitutional status, the court ordered the defendant
to produce a summary of the witness’s proffered testimony or the court would bar the testimony. (pp. 8-9)

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3. State v. Williams, 80 N.J. 472 (1979), dealt with a collateral issue: whether summaries already in existence were
required to be disclosed if the defendant had no intention of using them at trial. Because the request related to
inculpatory evidence, the defendant had no duty to produce those documents. The Court recognized that
“[e]vidential materials obtained in the exercise of [defense counsel’s] professional responsibility are so interwoven
with the professional judgments relating to a client’s case, strategy and tactics that they may be said to share the
characteristics of an attorney’s ‘work product,’” and that “[b]lanket discovery of the fruits of this kind of legal
creativity and preparation may impact directly upon the freedom and initiative which a lawyer must have in order to
fully represent his client.” Id. at 479. (pp. 9-10)

4. In addition to the confidentiality concerns raised by disclosure of work product, one of the underlying principles
on which our criminal justice system is based is that a defendant “has a fundamental right to remain silent.”
Williams v. Florida, 399 U.S. 78, 112, 90 S. Ct. 1893, 1912, 26 L. Ed. 2d 446, 483 (1970) (Black, J., concurring in
part and dissenting in part). This defendant agreed to reciprocal discovery, implicating the Rule and necessitating its
review. See R. 3:13-3(b)(1). (p. 10)

5. Rule 3:13-3(b)(2)(C) plainly requires a defendant to produce “the names, addresses, and birthdates of those
persons known to defendant who may be called as witnesses at trial.” Written statements, however, need only be
produced if they exist. This result is unquestionably mandated by the language “if any,” which modifies “written
statements.” The language following “if any” does not alter that result; it merely indicates that memoranda either
reporting or summarizing a witness’s oral statements constitute discoverable written statements for purposes of Rule
3:13-3(b)(2)(C). (pp. 11-12)

6. The trial court’s order was based upon a mistaken understanding of the applicable law, requiring reversal.
However, the Court stops short of finding that the entire order was an abuse of discretion. Nothing in the court rules
prevents the trial court from obligating defendant to identify a witness as either a character or fact witness. To the
contrary, requiring a defendant to identify the category of witness not only alleviates some of the State’s concern
regarding the burden of investigating a never-ending list of potential witnesses, but falls in line with the Court’s
policy encouraging cooperation in the discovery process. (pp. 12-13)

The judgment of the Appellate Division is AFFIRMED as MODIFIED. The matter is REMANDED to
the trial court for entry of a discovery order consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-73 September Term 2015
077328

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BRIAN TIER,

Defendant-Respondent.

Argued January 30, 2017 – Decided May 2, 2017

On appeal from the Superior Court, Appellate
Division.

Laura C. Sunyak, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant (Angelo J. Onofri,
Mercer County Prosecutor, attorney).

Alison S. Perrone argued the cause for
respondent (Law Office of Robin Kay Lord,
attorney; Ms. Lord on the brief).

Sarah E. Ross, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Christopher S.
Porrino, Attorney General, attorney; Lila B.
Leonard, on the brief).

JUSTICE TIMPONE delivered the opinion of the Court.

This appeal raises an issue of first impression for this

Court: What are a defendant’s post-indictment reciprocal

discovery obligations to the State regarding a defense witness’s

oral statements?

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 Defendant Brian Tier was charged with the kidnapping and

attempted murder of his girlfriend, C.L. In response to a

discovery request, defendant produced only a list of the names

of the three witnesses the defense intended to call at trial,

with no additional information. The State countered with a

request that defendant amend the disclosure to include dates of

birth and addresses, as well as a proffer of each witness’s

expected testimony. Defendant refused. The trial court ordered

the disclosure; the Appellate Division reversed.

It is a longstanding principle that the preference for

“mutually broad discovery” in civil cases “is generally

unobtainable” in criminal matters, in which we must strike a

careful balance between the interests promoted by discovery and

the need to preserve a defendant’s constitutional rights. State

v. Cook, 43 N.J. 560, 563 (1965).

We find that a plain reading of Rule 3:13-3(b)(2)(C)

requires production of witness statements only if those

statements have already been reduced to writing. Nothing in the

rules precludes a trial court from ordering a defendant to

designate witnesses as either character or fact witnesses,

however. Accordingly, we affirm the Appellate Division’s

reversal of the discovery order as it relates to the witness

statements and modify the panel’s determination that the trial

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court improperly ordered defendant to designate fact and

character witnesses.

I.

This matter comes to us by interlocutory appeal; no trial

has commenced. The underlying allegations have been gleaned

from the State’s briefing.

On March 7, 2012, officers from the Hamilton Police

Department responded to a report from a neighbor that C.L. and

defendant were in a physical struggle outside her residence near

her red Toyota Scion. When the officers arrived, they found the

Scion but no signs of a struggle.

Officer Aaron Kulak, accompanied by Officer Ryan Bitner,

knocked on her front door. Kulak heard what sounded like a

small dog barking and knocked again, directing the occupants of

the residence to open the door. Kulak then heard the sound of a

woman screaming, “Help! Help! He’s trying to kill me!” In

response to the continuing screams for help, Kulak kicked down

the door. Upon entry, Kulak and Bitner observed defendant on

top of C.L., his hands around her throat, strangling her. The

officers arrested defendant and, while en route to the hospital,

obtained a detailed statement from C.L. regarding the events.

On May 16, 2012, a Mercer County grand jury returned an

indictment, charging defendant with first-degree kidnapping,

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N.J.S.A. 2C:13-1, and first-degree criminal attempt to commit

murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1.

At a status conference held on September 25, 2015, the

State took issue with the witness list defendant produced

because it listed the names of three men but did not provide

identifiers, addresses, or synopses of their anticipated

testimony -- which the State alleged was in violation of Rule

3:13-3(b)(2)(C). In response, defendant agreed to produce

identifiers and addresses but argued against providing synopses.

Defendant asserted that the Rule requires that synopses be

produced only if they have already been reduced to writing.

Defense counsel affirmed that no witness statement summaries had

been prepared.

The trial court, in an oral decision, ordered the defense

to produce witness synopses and to create them if they had not

previously been drafted. The court specifically ordered defense

counsel to provide the State with the “reason why they’re on

[defendant’s] witness list[,] [a]nd[,] if they are character

witnesses, how long that witness has known the defendant and

what kind of relationship or under what circumstances did they”

know defendant.

On February 17, 2016, on an interlocutory appeal, the

Appellate Division summarily reversed the trial court’s order,

reasoning that, unlike the broad discovery obligation in civil

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cases, a criminal defendant’s disclosures are carefully limited

by the strictures of Rule 3:13-3(b)(2).

In order to preserve the State’s appeal of the Appellate

Division order, the trial court granted a motion to stay

defendant’s trial pending this Court’s ruling on the motion. We

granted the State’s motion for leave to appeal. 226 N.J. 205

(2016). We also granted the Attorney General leave to appear as

amicus curiae.

II.

A.

The State submits that the Appellate Division’s order

narrowed the confines of Rule 3:13-3(b)(2)(C) to “an

unreasonable and impermissible degree.” The State highlights

New Jersey’s preference for “broad reciprocal discovery” and

policy against gamesmanship and surprise. Recognizing that its

requested result is not commanded by the plain language of the

Rule, the State urges this Court to follow the Rule’s reciprocal

discovery “spirit.” The State buttresses its request with the

theory that, if the Court applies the plain language of the

Rule, defense attorneys would not reduce witness statements to

writing, necessitating mid-trial adjournments to permit the

State time to investigate or, in extreme cases, exclusion of

defense witnesses. Finally, the State acknowledges that its

entitlement to discovery is limited by constitutional

5
constraints, but asserts that requiring defendant to put into

writing what he already knows does not trigger such a concern.

B.

Defendant contends that the court rules relating to

criminal prosecutions, as written, are carefully balanced

between the dual goals of truth seeking and protection from

false prosecution. Defendant notes that ensuring proper balance

has led to a significant limitation of prosecutorial discovery

from the defense. With that backdrop, defendant concludes the

trial court erred in attempting to level the playing field by

imposing identical discovery obligations on the State and the

defense, when constitutional and procedural rights are

purposefully skewed in a defendant’s favor. Defendant concludes

that requiring the creation of a statement or summary for

prosecutorial use both infringes on his constitutional rights

and impairs his ability to make tactical judgments.

C.

The Attorney General reiterates the State’s practicality

argument against limiting defendant’s obligation under the Rule,

theorizing that a defendant would hereinafter be encouraged to

take only oral statements from potential witnesses. The

Attorney General also contends that: (1) such a decree places

an onerous burden on the State to investigate every witness on

the defense’s list, contrary to the principle that the outcome

6
of litigation should depend on its merits; (2) a narrow reading

of the Rule will result in delays in trial calendars, resulting

from the State’s increased investigative need and inability to

raise issues before trial; (3) this outcome is best served by

limited discovery, which should be the exception and not the

rule; and (4) recent precedent from this Court has expanded the

State’s discovery obligations, so a defendant’s obligation

should likewise expand.

III.

Inherent in this Court’s “power to make rules concerning

the administration, practice and procedure of the courts of this

State” is the broad power to interpret court rules. State v.

Leonardis, 71 N.J. 85, 108-09 (1976). 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 or Appellate Division unless

we are persuaded by their reasoning. State v. Hernandez, 225

N.J. 451, 461 (2016). While this Court generally shows

substantial deference to a trial court’s discovery order, not

interfering with it absent an abuse of discretion, we do “not

defer . . . to a discovery order . . . ‘based on a mistaken

understanding of the applicable law.’” State v. Stein, 225 N.J.

582, 593 (2016) (quoting Hernandez, supra, 225 N.J. at 461).

A.

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 This case turns on the interpretation of Rule 3:13-3.

Addressing a defendant’s obligations, the Rule reads, in

pertinent part:

A defendant shall provide the State with all
relevant material, including, but not limited
to . . . the names, addresses, and birthdates
of those persons known to defendant who may be
called as witnesses at trial and their written
statements, if any, including memoranda
reporting or summarizing their oral
statements.

[R. 3:13-3(b)(2)(C).]

This Rule has not seen much review. Indeed, a lone

published Law Division opinion discussed the breadth of

discovery obligations under the Rule. See State v. DiTolvo, 273

N.J. Super. 111, 115-17 (Law Div. 1994) (discussing same

relevant language in prior version of Rule, which has since been

renumbered). In DiTolvo, the State moved to bar a witness’s

testimony after the defendant refused to provide a written

summary of the witness’s proposed testimony. Id. at 113. The

defendant reasoned that because the witness never gave a written

statement, there was nothing to produce. Ibid. The court found

the Rule ambiguous and subject to multiple interpretations,

requiring the court to weigh the competing interests. Id. at

115-16. The court reasoned that the criminal justice system

generally had a strong interest in “broad and extensive

discovery,” the purpose of which “is to prevent surprise,

8
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.” Id. at 115

(citing State v. Williams, 80 N.J. 472, 482 n.2 (1979)

(Schreiber, J., dissenting)). Finding no competing interest in

favor of defendant, and failing to discuss a criminal

defendant’s special constitutional status, the court ordered the

defendant to produce a summary of the witness’s proffered

testimony or the court would bar the testimony. Id. at 117.

While this Court has addressed the discovery obligations of

a defendant in a criminal proceeding, we have yet to opine on

the issue squarely before us. Williams, supra, dealt with a

collateral issue: whether summaries already in existence were

required to be disclosed if the defendant had no intention of

using them at trial. 80 N.J. at 475. Because the request

related to inculpatory evidence, we held that the defendant had

no duty to produce those documents. Ibid. Clearly, a holding

to the contrary would chill the defense’s investigation and

infringe on the defendant’s right to effective assistance of

counsel. Id. at 478.

In so holding, we recognized that “[e]vidential materials

obtained in the exercise of [defense counsel’s] professional

responsibility are so interwoven with the professional judgments

relating to a client’s case, strategy and tactics that they may

9
be said to share the characteristics of an attorney’s ‘work

product,’” and that “[b]lanket discovery of the fruits of this

kind of legal creativity and preparation may impact directly

upon the freedom and initiative which a lawyer must have in

order to fully represent his client.” Id. at 479.

In addition to the confidentiality concerns raised by

disclosure of work product, one of the underlying principles on

which our criminal justice system is based is that a defendant

“has an absolute, unqualified right to compel the State to

investigate its own case, find its own witnesses, prove its own

facts, and convince the jury through its own resources,” and

“[t]hroughout the process[,] the defendant has a fundamental

right to remain silent, in effect challenging the State at every

point to: ‘Prove it!’” Williams v. Florida, 399 U.S. 78, 112,

90 S. Ct. 1893, 1912, 26 L. Ed. 2d 446, 483 (1970) (Black, J.,

concurring in part and dissenting in part). A defendant who

agrees to reciprocal discovery relinquishes the right to “do

nothing.” This defendant agreed to reciprocal discovery,

implicating the Rule and necessitating its review. See R. 3:13-

3(b)(1).

B.

The concerns we expressed in Williams and the principles

espoused by Justice Black infuse our discussion of Rule 3:13-

3(b)(2)(C). In interpreting a court rule, we apply the ordinary

10
canons of statutory interpretation. Wiese v. Dedhia, 188 N.J.

587, 592 (2006). “Accordingly, . . . the analysis must begin

with the plain language of the rule.” Ibid. The rules should

not be read in isolation; rather, they must be read “in context

with related provisions so as to give sense to the [court rules]

as a whole.” Ibid. (alteration in original) (quoting DiProspero

v. Penn, 183 N.J. 477, 492 (2005)). Where a rule contains both

general provisions and specific provisions, the latter control

over the former. Clymer v. Summit Bancorp, 171 N.J. 57, 69-70

(2002).

Contrary to the Law Division’s holding in DiTolvo, supra,

273 N.J. Super. at 115, we find the language in Rule 3:13-

3(b)(2)(C) to be unambiguous. The Rule plainly requires a

defendant to produce “the names, addresses, and birthdates of

those persons known to defendant who may be called as witnesses

at trial.” R. 3:13-3(b)(2)(C). Written statements, however,

need only be produced if they exist. Ibid. This result is

unquestionably mandated by the language “if any,” which modifies

“written statements.” Ibid. The language following “if any”

does not alter that result; it merely indicates that memoranda

either reporting or summarizing a witness’s oral statements

constitute discoverable written statements for purposes of Rule

3:13-3(b)(2)(C). However, if the defense has not memorialized

11
the witness statement in some form of writing there is nothing

to produce.

The State urges that the Rule is ambiguous and therefore

this Court must resort to rules of statutory interpretation. To

this end, the State argues that the preliminary sentence in the

Rule creates a presumption in favor of discovery, limited only

by the subsections thereunder. Even if we found the Rule to be

ambiguous, that argument fails. The preamble of subsection

(b)(2) is general and reads “[a] defendant shall provide the

State with all relevant material, including, but not limited to,

the following.” R. 3:13-3(b)(2). Each subsection then lists

specific limits on that discovery. See generally R. 3:13-

3(b)(2)(A) to -(E). Subsection (b)(2)(C)’s demarcation between

oral statements and statements reduced to writing controls over

the general broad discovery provision of the opening. See

Clymer, supra, 171 N.J. at 69-70.

Based on the plain reading of the Rule, we find the trial

court abused its discretion when it ordered defendant to create

a proffer of evidence in the present case. Undeniably, the Rule

does not require defendant to generate a written witness

statement where none exists. See R. 3:13-3(b)(2)(C). The trial

court’s order, therefore, was based upon a “mistaken

understanding of the applicable law,” requiring reversal. See

Stein, supra, 225 N.J. at 593.

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 We stop short, however, of finding that the entire order

was an abuse of discretion. Nothing in the court rules prevents

the trial court from obligating defendant to identify a witness

as either a character or fact witness. To the contrary,

requiring a defendant to identify the category of witness not

only alleviates some of the State’s concern regarding the burden

of investigating a never-ending list of potential witnesses, but

falls in line with this Court’s policy encouraging cooperation

in the discovery process.

In sum, we find the portion of the trial court’s order

requiring the assemblage of witness statements to be an abuse of

discretion as it was an apparent deviation from the applicable

Rule. We approve, however, of the trial court’s order requiring

defense counsel to identify only the category of witnesses as

fact or character. We encourage practitioners to participate in

cooperative discovery in order to ease the burden on all parties

involved.

IV.

The judgment of the Appellate Division reversing the trial

court’s discovery order is affirmed as modified, and the matter

is remanded to the trial court for entry of a discovery order

consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s
opinion.

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