STATE OF NEW JERSEY v. KYLE TOTH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6501-04T46501-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KYLE TOTH,

Defendant-Appellant.

_________________________________

 

Argued: December 13, 2005 - Decided August 21, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, 93-10-833.

Craig S. Leeds, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Leeds, of counsel and on the brief).

Samuel Marzarella, Senior Assistant Prosecutor, argued the cause for respondent (Thomas F. Kelaher, Ocean County Prosecutor, attorney; Mr. Marzarella, of counsel and on the brief).

PER CURIAM

In this post-conviction relief (PCR) matter, see R. 3:22, defendant appeals, on leave granted, from the trial court's discovery order of June 28, 2005, requiring the defense to turn over files to the prosecution. We stayed that order on an emergent application and, on August 11, 2005, broadened the stay to encompass all proceedings on the post-conviction relief application pending appeal. We now vacate the trial court's discovery order, and remand for further proceedings to modify its scope.

In 1994, following the denial of a motion to suppress tangible evidence, defendant pled guilty to two counts of felony-murder committed in the course of a burglary. The victims were defendant's grandfather and another person who shared the residence. Defendant was sentenced, in accordance with the plea agreement, to concurrent terms of imprisonment for thirty years without parole eligibility. We affirmed the convictions in an unpublished opinion filed on November 15, 1996 under docket number A-5748-94. Defendant had raised three issues on appeal, challenging the trial court's waiver of Family Part jurisdiction (the crimes were committed three weeks before defendant's eighteenth birthday and the waiver motion came before the trial court four months before defendant's nineteenth birthday), and charging error in the denial of his motion to suppress and in respect of another evidentiary issue. We determined that all the arguments lacked merit. The Supreme Court denied certification in an order reported at 149 N.J. 35 (1997).

On September 20, 2002, the trial court denied defendant's petition for post-conviction relief. Defendant appealed, and eventually moved, unopposed, for leave to amend the petition and for a temporary remand. We granted the motion. The amended petition was filed in the trial court on April 2, 2004.

In the plea proceeding that led to entry of the judgment of conviction, defendant had waived his right to a Miranda* hearing. The amended post-conviction relief application was based on a contention that trial counsel had rendered ineffective assistance by failing to seek expert analysis addressing the position that defendant had remained under the influence of drugs at the time he gave his statements to the police. According to the trial court judge, defendant "alleged . . . that he did not understand and it was not explained to him that there was a diminished capacity witness out there that may have been probative and meaningful in the Miranda setting." The court, having denied all other aspects of the post-conviction relief application, regarded this one claim to require development in an evidentiary hearing "limited to the issue of what counsel and [defendant] discussed" and "the thought processes that went into the waiver of that Miranda hearing[,]" excluding any expert testimony.

An order granting the hearing was entered on July 29, 2004. On August 13, 2004, the State moved for discovery as follows:

1. Supply copies of any and all documents or other memorializations, without limitation, generated by any person, which pertain to any discussion, position or offer of a plea by any person at any time.

2. Identify the substance of all statements made by any person concerning the subject of a plea, the date made, who made them, and all witnesses to same.

3. Supply copies of any and all documents or other memorializations, without limitation, which pertain to any assessment of the strength of the cases of the parties, particularly but not limited to all proofs of the intoxication, diminished capacity, or any other defense which encompasses elements of these defenses, generated at any time by any person.

4. Identify the substance of all statements or discussions concerning the strength of the cases of the respective parties, particularly but not limited to any intoxication or diminished capacity defense generated at any time by any person, and identify who made such statements, the date, and any witnesses to same.

5. Set forth and supply any and all documents, statements or other materials which you intend to rely upon at the evidential hearing in this matter.

Following a series of adjournments sought by defendant, the motion was considered by the court on June 17, 2005. An order was entered on June 28, 2005, granting the State's motion. The order specifically provided, inter alia, for the disclosure of "any and all files in the captioned matter and any and all material contained within said files without regard to any claim of privilege, of [trial counsel], as well as any portion of [prior PCR counsel's] files which were supplied by [trial counsel], with the exception of correspondence and notes between PCR Counsel and Defendant." In the instant appeal, emanating from our grant of defendant's motion for leave to appeal from that order, defendant advances a single argument: that the trial court "erred in requiring [the] defense to turn over all prior counsel's files in their entirety."

In his oral ruling on the discovery motion, the trial court judge clarified the scope of his ruling: "every piece of paper [in the] files" of all the attorneys in this case, including trial counsel; an attorney who had been consulted regarding trial; initial appellate counsel; and prior PCR counsel, excepting only "correspondence between or notes that were prepared by [current PCR counsel]," "will be provided to the Office of the Ocean County Prosecutor within fourteen days[.]"

Our analysis is based upon the principle that "[o]rders declaring a wholesale waiver of the attorney-client privilege should not be entered; rather, there should be a careful delineation of permissible avenues of inquiry[.]" Halbach v. Boyman, 369 N.J. Super. 323, 330 (App. Div. 2004). Although, in a PCR proceeding, the attorney-client privilege "does not extend to communications relevant to an ineffective-assistance-of-counsel claim[,]" State v. Bey, 161 N.J. 233, 296 (1999), the party seeking to overcome the bar of the privilege typically bears the burden of establishing why it should not apply. See Halbach, supra, 369 N.J. Super. at 328-29.

While a trial court's order requiring full production of all attorneys' files is not per se invalid, see United Jersey Bank v. Wolosoff, 196 N.J. Super. 553 (App. Div. 1984), "a painstaking in camera review [is necessary] to determine which documents should be disclosed and which should be protected from disclosure." Halbach, supra, 369 N.J. Super. at 330. "[A] trial court must proceed with caution and circumspection in this area." Ibid.

We agree with the trial court judge's view expressed in his supplemental letter opinion dated July 8, 2005, filed following defendant's emergent application to us for a stay and leave to appeal, see R. 2:5-1(b), that appropriate "reciprocal discovery" was "necessary so that the State may be prepared to meet [d]efendant's contentions that his previous counsel at all levels failed to properly advise him of the potential diminished capacity argument." We disapprove only of the scope of the discovery order because it has the clear capacity to sweep in privileged matter that has little or no bearing on the issues to be addressed in the PCR hearing. Although a PCR application based on a theory of ineffective assistance of counsel must logically be deemed to encompass a waiver of the attorney-client privilege as to matter bearing upon the issues raised, see N.J.R.E. 504(2)(c), the waiver cannot be seen to be so broad as to supersede all the interests the privilege protects. See Wolosoff, supra, 196 N.J. Super. at 567 n.3. See also Kinsella v. Kinsella, 150 N.J. 276, 301 (1997); In re Kozlov, 79 N.J. 232, 243-44 (1979).

Here, the limitations placed by the trial court upon the inquiry to "what counsel and [defendant] discussed" regarding the waiver of a Miranda hearing and "the thought processes that went into the waiver of that Miranda hearing[,]" do not justify the wholesale disclosure requirement the discovery order mandated. The trial court was obliged to narrow and limit the scope of the order appropriately in order to preserve the values protected by the attorney-client privilege, see State v. Marshall, 148 N.J. 89, 270, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), while recognizing the State's undeniable interest in meeting the precise issues raised by defendant on post-conviction relief; and, the trial court was required to supervise the disclosure by "painstaking" use of in camera review procedures to evaluate the need for disclosure of particular documents that might nominally be related to the issues to be addressed but with respect to which defendant validly asserts overriding attorney-client privilege concerns. See Halbach, supra, 369 N.J. Super. at 330.

The trial court's order is remanded for appropriate narrowing through the use of procedures suited to the purpose, including in camera review of disputed documents as may be necessary.

 

* Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-6501-04T4

 

August 21, 2006