STATE OF NEW JERSEY v. M.S.

RECORD IMPOUNDED

                                 NOT FOR PUBLICATION WITHOUT THE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-0790-17T4

STATE OF NEW JERSEY,

           Plaintiff-Appellant,

v.

M.S.,

           Defendant-Respondent.


                    Argued September 13, 2018 – Decided December 3, 2018

                    Before Judges Alvarez, Nugent, and Reisner.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 17-04-1020.

                    Kayla Elizabeth Rowe, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for appellant (Theodore N. Stevens II, Acting Essex
                    County Prosecutor, attorney; Kayla Elizabeth Rowe, of
                    counsel and on the briefs).

                    Tamar Y. Lerer, Assistant Deputy Public Defender,
                    argued the cause for respondent (Joseph E. Krakora,
                    Public Defender, attorney; Tamar Y. Lerer, of counsel
                    and on the brief).
PER CURIAM

      The State was granted leave to appeal an interlocutory order compelling

it to produce in discovery an unredacted version of the cell phone text messaging

history of O.R., defendant M.S.'s alleged victim, from September 10, 2015, to

September 28, 2015, along with a log of O.R.'s calls from September 15, 2015,

to September 28, 2015. We now affirm the trial court's January 12, 2018

decision, except we modify the order with regard to the dissemination of

information.

      We summarize the facts alleged in the parties' briefs, since no sworn

testimony has yet been taken.      O.R. and defendant were friends, and on

September 15, 2015, were talking while lying on defendant's bed. O.R. had

smoked marijuana earlier that evening, was tired, and fell asleep. She awakened

sometime later to find defendant, naked, on top of her. He had pulled down her

leggings, and she felt moisture between her legs. O.R. told defendant to get off,

and, at her request, he drove her home. That morning, O.R. went to a nearby

hospital where a rape kit was completed. Police were notified, and a complaint

was filed against defendant.




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      As is customary for the Essex County Prosecutor's office, on September

28, 2015, investigators requested that O.R. turn over her cell phone. The

following day, the department compiled a 242-page extraction report.

      Defendant was charged by way of superseding indictment with two counts

of first-degree aggravated sexual assault,  N.J.S.A. 2C:14-2(a)(7), and two

counts of second-degree sexual assault,  N.J.S.A. 2C:14-2(c)(1). After motion

practice and corresponding emergent applications for leave to appeal, the trial

judge eventually ruled that defendant's need for the unredacted extraction report

outweighed O.R.'s privacy rights and ordered that the document be produced.

      The extraction report included a call log from September 15, 2015,

through September 28, 2015, consisting of 500 incoming and outgoing calls in

reverse chronological order. 1 The State redacted all of the names and telephone

numbers, except for thirteen calls to "Bae" 2 and one call from "Bae" in the two



1
  We avoid details regarding the unredacted extraction report to avoid prejudice
to the State's position in the event of a further appeal. However, to put the
controversy in context, we describe the extent to which the State redacted the
report, leading to defendant's discovery motion.
2
  The State's explanation of the abbreviations, provided to the court under seal,
advises that "Bae is an acronym for 'before anyone else,' usually referring to a
person's significant other."



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days following the alleged incident, and all calls to and from defendant, who

was listed as "Om" in O.R.'s phone. Following the call log is a list of the 156

contacts programmed in O.R.'s phone, all of which were redacted except for

defendant, "Bae," and "Rodriguez Det P."

       The report also contained ninety-two MMS messages, 3 in reverse

chronological order, with the contact information and content redacted from

each message.     An additional 1333 SMS messages4 were listed in reverse

chronological order. The contact information, SMSC field, 5 and content were

redacted from the majority of the messages except for the messages exchanged

by O.R. and defendant. Some messages from September 14 were not redacted

and most, but not all, of the messages sent and received on September 15 and

September 16 were not redacted.

       The State redacted one audio file and all of the images and video files.

The next section, listing the names and phone numbers with which O.R.


3
  "MMS" stands for "multimedia messaging service" and includes picture and
video messages.
4
    "SMS" stands for "short message service" and includes text messages.
5
   "SMSC" stands for "short messaging service center," which is part of the
wireless network that handles text messages, including routing, forwarding, and
storing them on the way to their recipients.


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communicated, was entirely redacted except for defendant's name and number,

as well as that of "Bae." In this section, and the final section entitled "Analytics

Phones," the State inconsistently redacted information, leaving some contacts in

one section of the report while removing them from another section. Some of

the contacts appeared to be of persons with whom O.R. might have

communicated about her interactions with defendant.

                                         I.

      Our premise that the contents of O.R.'s cell phone, including text

messages and the call log, are entitled to the same privacy protection as letters,

or personal calls, or a diary, is drawn from well-established precedents,

beginning with Riley v. California,  134 S. Ct. 2473 (2014). In Riley, police

conducted an unauthorized examination of Riley's cell phone, including a

wholesale search for evidence of gang activities.        Id. at 2481. The Court

reversed the denial of Riley's motion to suppress the evidence, employing classic
 Fourth Amendment doctrine—that a search requires a warrant except where "it

falls within a specific exception." Id. at 2482. The Court reasoned that the

search incident to arrest doctrine should not be applied to the contents of modern

cell phones, "now such a pervasive and insistent part of daily life that the




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proverbial visitor from Mars might conclude they were an important feature of

human anatomy." Id. at 2484.

      The Court observed that cell phones contain a treasure trove of personal

information regarding the most intimate details of the owner's life. Ibid. As the

Court also observed, quoting a 1926 opinion authored by Learned Hand, it is a

"totally different thing to search a man's pockets and use against him what they

contain, from ransacking his house for everything which may incriminate him."

Id. at 2490-91 (quoting United States v. Kirschenblatt,  16 F.2d 202, 203 (2d Cir.

1926)). A search of a cell phone would not only reveal "many sensitive records

previously found in the home[,]" but also "a broad array of private information

never found in a home in any form." Id. at 2491.

      Drawing from Riley, if the contents of a suspect's cell phone are entitled

to Fourth Amendment protection, a victim should be accorded corresponding

privacy protection. A victim has the same interest in keeping the highly personal

information found in a cell phone out of sight of the public in general and th ose

she has accused of committing a crime against her in particular. The State

contends that providing defendant with the unredacted extraction report would

be like allowing defendant to ransack the victim's house for everything it may

contain that could be used by defendant in building a defense. The nature of the


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charge—a sexual assault—only heightens the tension between defendant's right

to open file discovery and his Sixth Amendment right to counsel, and O.R.'s

right to privacy. See State v. Scoles,  214 N.J. 236, 253-54 (2013). Typically,

because of the nature of the crime, sexual assault cases are treated with

heightened sensitivity, such as the use of initials to protect the complainant's

identity.

      Additionally, the Victim's Rights Amendment to the New Jersey

Constitution is implicated and establishes a baseline. Victims in our system

"shall be treated with fairness, compassion and respect by the criminal justice

system." N.J. Const. art. 1, § 22. By statute and the Crime Victim's Bill of

Rights, victims are entitled "[t]o be treated with dignity and compassion by the

criminal justice system[,]" and "[t]o be free from intimidation[.]"  N.J.S.A.

52:4B-36.

      Those rights require particular attention in sexual assault cases where

there is a heightened "need to protect victims and witnesses from emotional

trauma, embarrassment, and intimidation." State v. Gilchrist,  381 N.J. Super.
 138, 147 (App. Div. 2005). But victims' rights do not "diminish those rights

possessed by the accused facing a criminal prosecution." State ex rel. A.B.,  219 N.J. 542, 558 (2014).


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      To harmonize those rights when a discovery request does not neatly fall

into the automatic discovery rule requires balancing the right to a fair trial

against a victim's right to privacy. Id. at 547. A defendant must demonstrate

that the discovery is "justified" and meets an evidentiary burden on a sliding

scale "in direct proportion to the nature and extent of the intrusion." Id. at 556-

57.

      That O.R. voluntarily turned her phone over to the prosecutor's office does

not affect the calculus. We do not know if she was advised that others besides

law enforcement would have access to the information it contained, or if she was

even told the nature of the information that would be drawn from it. Thus, we

approach the issues the State raises on appeal from the perspective that O.R. has

a right to privacy that must be balanced against defendant's right to discovery.

                                        II.

      That balance must be made against the backdrop that appellate courts

"accord substantial deference to a trial court's issuance of a discovery order and

will not interfere with such an order absent an abuse of discretion." State v.

Hernandez,  225 N.J. 451, 461 (2016).          We do not defer, however, if the

discovery order is based on a mistaken understanding of the applicable law,




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including the trial court's interpretation of a court rule. Ibid. As always, we

review issues of law de novo. See ibid.

      New Jersey courts "do not countenance trial by surprise." A.B.,  219 N.J.

at 555. "Because of the meaningful role that the disclosure of evidence to a

defendant has in promoting the search for truth, pretrial discovery in criminal

trials has long received favorable treatment in this state." Scoles,  214 N.J. at
 251. A trial in which a criminal defendant "does not have 'access to the raw

materials integral to the building of an effective defense' is fundamentally

unfair." A.B.,  219 N.J. at 556 (quoting Ake v. Oklahoma,  470 U.S. 68, 77

(1985)). Thus, to "advance the goal of providing fair and just criminal trials[,]"

New Jersey has adopted an "open-file approach to pretrial discovery in criminal

matters. Hernandez,  225 N.J. at 461-62 (quoting Scoles,  214 N.J. at 252);

R. 3:13-3.

      Rule 3:13-3(b) requires the State to provide "exculpatory material" to the

accused including, but not limited to:

             books, papers, documents, or copies thereof, or tangible
             objects, buildings or places which are within the
             possession, custody or control of the prosecutor,
             including, but not limited to, writings, drawings,
             graphs, charts, photographs, video and sound
             recordings, images, electronically stored information,
             and any other data or data compilations stored in any


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            medium from which information can be obtained and
            translated, if necessary, into reasonably usable form[.]

            [R. 3:13-3(b)(1)(E).]

      In addition, "courts are empowered to order discovery beyond that

mandated by our court rules when doing so will further the truth-seeking

function or ensure the fairness of a trial." Hernandez,  225 N.J. at 463 (quoting

A.B.,  219 N.J. at 560).

      "Relevance is the touchstone of discovery." Id. at 468. Thus, "discovery

in a criminal case 'is appropriate if it will lead to relevant' information." Id. at

462 (quoting State v. Ballard,  331 N.J. Super. 529, 538 (App. Div. 2000)).

Evidence is relevant if it has "a tendency in reason to prove or disprove any fact

of consequence to the determination of the action." N.J.R.E. 401. "[I]f evidence

is relevant and necessary to a fair determination of the issues, the admission of

the evidence is constitutionally compelled." State v. Garron,  177 N.J. 147, 171

(2003).

      While criminal discovery in New Jersey is expansive, nothing "sanction[s]

rummaging through irrelevant evidence."        Hernandez,  225 N.J. at 463.         A

defendant may not "transform the discovery process into an unfocused,

haphazard search for evidence." State v. D.R.H.,  127 N.J. 249, 256 (1992).

Courts must be cognizant of "the chilling and inhibiting effect that discovery

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can have on material witnesses who are subjected to intimidation, harassment,

or embarrassment." Ibid.

      The showing a defendant must make increases with the nature of the

intrusion resulting from the discovery. In this case, a heightened showing must

be made in order to justify the intrusion into O.R.'s right to privacy. This

showing is not as great as, for example, when a defendant seeks to have a child

medically examined who is a sex abuse victim. See A.B.  219 N.J. at 557. But

a defendant must show at least a substantial need. In other words, defendant

must establish that the intrusion is warranted because the information will lead

to relevant evidence on a material issue.

      Here, after our in camera review of the unredacted extraction report, we

are convinced it may well lead to relevant information. O.R. said the sexual

assault occurred during the late night hours of September 15 or early morning

hours of September 16, 2015, after she fell asleep. Defendant claims that they

had a consensual encounter, and further alleges that O.R. fabricated the sexual

assault claim because she feared "Bae" would find out they had relations. It is

almost self-evident that texts O.R. sent and calls she made within the immediate

hours before and after the assault may be relevant, and that defendant may wish

to interview those persons with whom she made contact.


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      The State is obligated in discovery to provide "'material evidence

affecting [the] credibility' of a State's witness whose testimony may be

determinative of guilt or innocence." Hernandez,  225 N.J. at 462 (alteration in

original) (quoting State v. Carter,  69 N.J. 420, 433 (1976)). O.R. is the key

State's witness whose testimony, if believed, will determine the verdict. The

State redacted numerous texts, some of which could offer defendant lines of

investigation into O.R.'s credibility. We offer no examples of the unredacted

materials for the reason stated at the beginning of this decision, but enumerate

the rules and statutes that similarly situated defendants frequently raise:

N.J.R.E. 404(a)(2), which provides that "[e]vidence of a pertinent trait of

character of the victim offered by an accused" is admissible to show that the

victim acted in conformity therewith; N.J.R.E. 608(a), which provides that

opinion and reputation evidence is admissible to attack the character of a witness

for untruthfulness; and the Rape Shield Law,  N.J.S.A. 2C:14-7. Even if the cell

phone information or the results of any further investigation based upon it may

ultimately be inadmissible, full and open discovery requires the production of

the unredacted report.

      The State relies heavily upon State v. J.A.C.,  210 N.J. 281 (2012), in

support of its position that the redacted information suffices. In that case,


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however, the dispute related to the admission of evidence barred by the Rape

Shield Law, not its production in discovery. See id. at 287.      In this case, the

State is seeking to keep defendant from having access to the redacted

information altogether. The redacted material, however, is relevant and is

therefore at least discoverable. The admissibility of any evidence, also left to

the trial court, is an entirely different matter. Our decision does not touch upon

that exercise of discretion. See id. at 295-96.

                                       III.

      The State contends that the issue is not whether O.R. has a right to privacy

in need of protection— there can be no dispute that she does—but whether the

sacrifice of her privacy will advance "the truth-seeking function or ensure the

fairness of a trial." A.B.,  219 N.J. at 560. The trial court balanced O.R.'s right

to privacy against defendant's right to confrontation as guaranteed under the

Sixth and Fourteenth Amendments, concluding that the harm to O.R. of allowing

defendant access to the unredacted extraction report was outweighed by the

benefit of full discovery.

      We understand, as defense counsel said during oral argument, that because

of defendant's lack of specific information regarding the contents of the

unredacted extraction report it is difficult to address materiality. However, it is


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not unreasonable at all, and certainly not speculation, to argue that the

unredacted cell phone extraction report could contain information that will help

or hurt defendant's case. It provides information which, even if not useful for

some actual trial purpose, will enable defendant to realistically assess the

strengths and weaknesses of the State's case, and of any plea offers that may be

made. Simply stated, it is reasonably likely that the redacted material has

probative value to a material issue. See id. at 557.

       The State further contends that Gilchrist bars disclosure of the unredacted

report. In that case, however, the trial judge ordered a photograph taken of the

victim so that the defendant could determine whether he was acquainted with

her because her relationship to him might provide a motive for the accusation.

 381 N.J. Super. at 140-41. Since the perpetrator in that case had threatened to

kill the victim if she went to the police, she was understandably apprehensive.

The victim feared that defendant's access to her photograph would make it

possible for him to make good on the threat. Id. at 142. We reversed. Id. at

148.

       In this case, there is no comparable justification for barring defendant 's

access to the unredacted extraction report. O.R. has not expressed any fear of

retribution, and after the incident, defendant drove her home at her request. The


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record is devoid of any indication that defendant has at any time attempted to

intimidate O.R. Gilchrist is inapposite.

      The State's reliance on United States v. Swartz,  945 F. Supp. 2d 216, 221-

22 (D. Mass. 2013), is similarly misplaced. In that case, the defendant's estate

sought disclosure of unredacted discovery materials to Congress and the public.

Id. at 217. That is not an issue in this case. No wholesale or public disclosure

is being ordered.

      Knowing the risks attendant to compelling the State to produce the report,

however, it shall be disclosed to defense counsel, counsel's investigators, and

defendant only.     The discovery order must prohibit dissemination of the

information except as necessary for investigation. Defendant shall not be given

a hard copy of the unredacted report. He can review it with his counsel, but

there is no need for him to have a physical record of phone numbers O.R. call ed

or texts she sent. He is barred from discussing the contents of the report with

anyone other than his attorney or attorney's staff. Other than those permitted

discussions, defendant is also barred from disclosing or disseminating the

report's contents in any fashion, including emails or internet postings.




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                                        IV.

      The State also asserts that the disclosure of the unredacted extraction

report will infringe upon the privacy rights of third parties who were not

involved in the incident and could not have anticipated disclosure of their

communications with O.R. Our Court has been sensitive regarding the privacy

rights of third parties when discovery, including their information, must be

produced. State v. Stein,  225 N.J. 582, 597 (2016). But Stein did not consider

whether being contacted by a defense investigator infringes upon a third party's

right to privacy. The issue was whether the State had to turn over police station

videotapes of defendant that depicted others whose presence was irrelevant to

the proceedings. Id. at 597.

      In this case, there is no other practical means for the defense to investigate

anything regarding O.R.'s communications with third parties related to the

sexual assault without the State at least disclosing their identities.    Weighing

the privacy interest of third parties against the defendant's right to investigate in

preparation for trial, defendant's trial preparation interest is paramount. This is

no different than if, for example, O.R. had named persons with whom she

discussed the incident. Those persons also lose their anonymity.




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      Thus, we conclude that our strong open-file discovery precedents justify

the trial court's resolution of this issue and the decision is therefore entitled to

deference. See Hernandez,  225 N.J. at 461.

      We reiterate that copies of the unredacted extraction report shall be

supplied only to defense counsel and counsel's staff. No copy shall be provided

to defendant, who is also barred from discussing its contents with anyone other

than counsel or counsel's investigator. This limitation applies only to material

not admitted as evidence at trial, as obviously the public nature of the proceeding

makes the limitation unnecessary as to trial information.

      Affirmed in part, modified in part, and remanded. We do not retain

jurisdiction.




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