RECORD IMPOUNDED
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3903-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDRE DeMELO,
Defendant-Appellant.
_____________________________________________
Argued April 25, 2017 – Decided May 22, 2017
Before Judges Espinosa and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 12-11-2782.
James H. Maynard argued the cause for
appellant (Maynard & Sumner, LLC, attorneys;
Mr. Maynard, on the briefs).
Tiffany M. Russo, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney;
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Andre DeMelo appeals the denial of a motion for
post-conviction discovery that he filed in anticipation of
filing a petition for post-conviction relief (PCR). The Rules
of Court do not authorize an order compelling discovery in this
context, and defendant did not make a showing of good cause and
relevance required for an exercise of the judge's inherent
authority to compel discovery when justice requires. R. 3:13-2;
R. 3:13-3; R. 3:13-4; see State v. Marshall, 148 N.J. 89, 268-
70, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88
(1997). Finding no abuse of discretion, we affirm. In re
Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 163
(2013); Marshall, supra, 148 N.J. at 270.
On May 20, 2013, defendant pled guilty to one count of an
Essex County Indictment charging him with endangering the
welfare of a child as prohibited by N.J.S.A. 2C:24-4(b)(4), a
second-degree crime. On August 14, 2013, the judge sentenced
defendant as a third-degree offender to a three-year term of
imprisonment and dismissed the second count of the indictment.
Defendant did not file a direct appeal, but two years after
entry of the judgment, he retained an attorney "to determine
whether he ha[d] a plausible post-conviction relief claim,
pursuant to Rule 3:22-2." The attorney wrote the Essex County
Prosecutor's Office and requested "a complete copy of any/all
2 A-3903-15T2
discovery related to" his client's case.1 In a subsequent phone
call, the attorney was told the request was denied because the
case was closed.
On January 29, 2016, relying on Rules 3:13-2 through 3:13-
4, counsel moved for an order "permit[ting] discovery in this
post-conviction matter . . . as provided by the New Jersey Rules
of Court and State v. Marshall." In his certification
accompanying the motion, counsel represented that he asked for
the "original discovery," which is slightly narrower than the
request he made in the letter.
Counsel asserted three justifications in support of the
motion:
1) seeking discovery from [d]efendant's
former trial attorney . . . could create a
potential conflict of interest . . . ; 2)
the [d]efendant has requested that our
office not contact his former attorney; and
3) this office cannot properly consider
[d]efendant's PCR options, conduct a trial
analysis, and advise [d]efendant without the
surety of receiving the complete original
discovery . . . that was provided to defense
counsel.
Defense counsel and the Essex County Prosecutor's Office
briefed the issues, and on April 8, 2016, the trial court heard
1
The appendix on appeal includes the attorney's letter and a
certification submitted to the trial court with his motion. The
scope of counsel's engagement is stated in the brief submitted
on appeal.
3 A-3903-15T2
oral argument. During the argument, defense counsel
acknowledged that he had not contacted his client's former
attorney. He also advised that he routinely requests and
receives such discovery from other prosecutor's offices under
the same circumstances and has only been required to obtain an
order compelling production in a few cases. Counsel stressed
that he was not seeking production of the prosecutor's notes or
anything beyond discovery required by Rule 3:13-3. At the
conclusion of the argument, the judge delivered an oral opinion
stating his reasons for denying the motion. The judge relied on
Marshall.
On appeal counsel argues:
POINT I
THE MARSHALL COURT HELD THAT PCR PETITIONERS
ARE ENTITLED TO ORIGINAL GENERAL DISCOVERY.
POINT II
IN THE ABSENCE OF STATUTORY AUTHORITY, THE
COURT SHALL SET PROCEDURAL GUIDELINES.
POINT III
APPELLANT SHOULD HAVE THE RIGHT TO OBTAIN A
COMPLETE, UNADULTERATED RECORD OF THE
ORIGINAL, GENERAL DISCOVERY FROM THE
PROSECUTOR'S OFFICE.
Defendant's reliance on Rules 3:13-2 through 3:13-4 is
misplaced. Two of the Rules have no application. Rule 3:13-2
4 A-3903-15T2
addresses depositions when "a complaint, indictment or
accusation is pending," and Rule 3:13-4 addresses discovery in
capital cases.
Rule 3:13-3 addresses discovery prior to conviction.
Paragraph (a) governs pre-indictment discovery when the
"prosecutor has made a pre-indictment plea offer"; paragraph
(b)(1) governs the State's post-indictment discovery
obligations; and paragraph (f) imposes a continuing duty to
disclose. But in Marshall, the Supreme Court explained:
[O]ur Court Rules concerning petitions for
PCR, see R. 3:22-1 to -12 [now R. 3:22-1 to -
22], do not contain any provision authorizing
discovery in PCR proceedings. Moreover, the
general discovery obligations contained in the
Rules Governing Criminal Practice, see R.
3:13-2 to -4, do not extend to post-conviction
proceedings. Defendant relies on Rule 3:13-
3(g) [now Rule 3:13-3(f)], which refers to
parties' "[c]ontinuing [d]uty to [d]isclose"
discoverable materials. However, that
obligation continues only "during trial."
Thus, our Court Rules do not explicitly
authorize the discovery requested by defendant
in this case.
[148 N.J. at 268.]
However, the Court made it clear that the absence of
express authority to grant discovery related to PCR does not end
the inquiry. Courts have "'inherent power to order discovery
when justice so requires.'" Id. at 269 (emphasis added)
(quoting State ex rel. W.C., 85 N.J. 218, 221 (1981)); see id.
5 A-3903-15T2
at 268-70 (citing and discussing illustrative decisions by
courts of this State and other jurisdictions). Marshall allows
exercise of that inherent authority in PCR proceedings. Id. at
270.
The Court provided guidance on proper exercise of the
inherent power to require discovery in PCR proceedings. The
Court expected trial courts to invoke it only in the "unusual"
PCR case and only on a showing of "good cause" and relevance to
"defendant's case." Ibid. With that guidance, the Court made
it clear that this "inherent authority" is not generalized, but
rather it is dependent on the case before the court. Id. at
269-70. If there were any room for doubt, the Court closed the
space by stressing, "PCR 'is not a device for investigating
possible claims, but a means for vindicating actual claims.'"
Id. at 270 (quoting People v. Gonzalez, 800 P.2d 1159, 1206
(Cal. 1990), cert. denied, 502 U.S. 835, 112 S. Ct. 117, 116 L.
Ed. 2d 85 (1991)).
A grant of counsel's generalized request for pre-petition
PCR discovery to assess defendant's options for PCR would be in
direct conflict with the authorization and guidance the Supreme
Court so clearly provided in Marshall. This request is nothing
other than one to compel the prosecutor to provide information
from which a lawyer might identify possible claims. It is not
6 A-3903-15T2
tethered to any fact, evidence or argument particular to this
case. Instead, it is based on broad assertions of policy, such
as avoidance of possible conflicts of interest and unfounded PCR
claims. Thus, this discovery request falls squarely within the
class the Court disapproved in Marshall.
The foregoing is not intended to suggest that the procedure
counsel recommends is unworthy of consideration. Nor is it
intended to suggest that a prosecutor's office may not routinely
and uniformly comply with such requests. Those matters are not
before us, because they are outside the scope of a court's case-
specific inherent authority. Many years have passed since
Marshall was decided. Although the Rules governing discovery
and PCR have been amended, they have not been supplemented to
require the State to reproduce its initial discovery in order to
facilitate the filing of PCR-petitions.
Defense counsel takes issue with the State's and the trial
court's reliance on statements in Marshall that are not part of
the Court's holding. But the Court did not hold, as defendant
argues, that Rule 3:13-3 applies in PCR matters; the Court
explained that courts exercising inherent authority "may reason
by analogy to existing discovery rules, see R. 3:13-2 to -4, in
designing an appropriate PCR discovery order." Marshall, supra,
148 N.J. at 271; see, e.g., State v. Ball, 381 N.J. Super. 545,
7 A-3903-15T2
562 (App. Div. 2005) ("see[ing] no difference between a
defendant's right to post-indictment, pre-trial discovery
pursuant to R. 3:13-3 and post-conviction discovery relevant to
racial profiling," because a defendant must "present a colorable
claim of racial profiling to qualify for discovery") (internal
quotation marks omitted). Moreover, even if the passages from
Marshall discussed above could be characterized as dicta, this
court should follow the Supreme Court's guidance. State v.
Rawls, 219 N.J. 185, 198 (2014) (quoting State v. Dabas, 215
N.J. 114, 136-37 (2013)).
Defendant's arguments are thoughtful and persuasively
presented, but they are generalized — that is, divorced from the
evidence and issues in this case. The proper exercise of
judicial discretion involved in use of the inherent power to
grant discovery must be guided by the law and the specific case
before the court. See State v. Madan, 366 N.J. Super. 98, 108-
110 (App. Div. 2004) (providing an extensive discussion of
judicial discretion and cases addressing its proper exercise).
There was no abuse of discretion here.
Affirmed.
8 A-3903-15T2
STATE OF NEW JERSEY VS. ANDRE DEMELO(12-11-2782, ESSEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
Combined Opinion