NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3197-11T2

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, June 10, 2014 v. APPELLATE DIVISION

MICHAEL NUNEZ,

Defendant-Appellant.

________________________________________________________________

Submitted April 29, 2014 – Decided June 10, 2014

Before Judges Fisher, Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-06-01884.

Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

We reverse defendant's murder conviction because the trial

judge permitted the State to bolster its case by calling

defendant's investigator to testify to a prior consistent statement of the State's only eyewitness in violation of

defendant's right to counsel.

A jury convicted defendant Michael Nunez of first-degree

murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree

possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (count two); second-degree unlawful possession of a

firearm, N.J.S.A. 2C:39-5(b) (count three); third-degree

endangering an injured victim, N.J.S.A. 2C:12-1.2(a) (count

four); and second-degree certain persons not to have weapons,

N.J.S.A. 2C:39-7(b) (count five). He was sentenced to an

aggregate term of seventy-three years in prison with an eighty-

five percent term of parole ineligibility pursuant to the No

Early Release Act, N.J.S.A. 2C:43-7.2.

In the early morning of December 13, 2009, Rashon Brown was

found unconscious and later died of gunshot wounds. Two days

later, Benjamin Searles, who was in jail on drug charges, gave a

statement to police naming defendant as the shooter. On

November 12, 2010, a week before pleading guilty to third-degree

distribution of a controlled dangerous substance in a school

zone, Searles was interviewed by defense investigator Harry

Reubel. A year later, Searles testified to his version of the

shooting at defendant's trial.

2 A-3197-11T2 Searles testified that he went with defendant, Brown, and

another man to a club around midnight and stayed for two or

three hours drinking heavily. When they left the club,

defendant drove the car. At approximately 4 or 5 a.m., they

stopped in front of an apartment complex. Brown wanted to use

his cellphone to look up some telephone numbers, but the battery

was dead. Defendant tried to take Brown's phone to see if

defendant's battery could be used. Searles testified that

defendant became upset when Brown slapped defendant's hand away

from the cellphone. Defendant and Brown then exited the car

and, after a physical fight, defendant took a pistol from an

area near the console of the car and shot Brown three times.

Later that morning, Searles was arrested for selling drugs.

Two days later, after finding out that Brown had died, Searles

asked to speak to the prosecutor. Searles ultimately pleaded

guilty to third-degree drug distribution within a school zone

and the prosecutor recommended a three-year sentence with an

eighteen-month term of parole ineligibility. Searles had a

substantial prior criminal record involving multiple drug

convictions, and the charge carried a maximum of ten years in

prison with a five-year parole disqualifier.

Defense counsel primarily attacked Searles's credibility by

concentrating on the defense theory that Searles had fabricated

3 A-3197-11T2 the story to obtain a favorable plea agreement. The State

called the assistant prosecutor involved in Searles's plea

agreement who testified that Searles's cooperation in

defendant's murder case did not affect the terms offered by the

State.

Defense counsel also pointed out inconsistencies between

Searles's December 15, 2010 statement to the police and his

testimony at trial. Over a defense objection, the judge allowed

the State to call defendant's investigator to the stand. While

reviewing his defense investigation report, which was marked for

identification, long-time Public Defender Investigator1 Reubel

testified for the State in detail about what Searles told him in

November 2010 when Reubel interviewed him in the jail as part of

his defense investigation. Reubel's testimony confirmed that

Searles had identified defendant, Reubel's own client, as the

killer.

Another witness called by the State testified that he and

two others had beaten defendant after defendant admitted

shooting Brown. This witness did not tell the police about the

purported confession until seventeen months after the shooting,

1 Defense counsel brought out on cross-examination that Reubel did not work for counsel, but for the Public Defender's Office. Presumably in an effort to avoid a mistrial or later reversal, the State objected on the basis that it was prejudicial to defendant and the judge cautioned counsel.

4 A-3197-11T2 when he was facing drug charges. The State also called to the

stand a jailhouse informant, Sampson, who testified that

defendant had confessed the murder to him.

Defendant did not testify at trial, but the jury saw a

videotaped statement he gave the police in which he stated that

he was beaten because his attackers blamed him for Brown's

murder. Defendant did not confess to the murder in this

videotape.

On appeal defendant raises the following issues:

POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING CUMULATIVE AND UNDULY PREJUDICIAL HEARSAY TESTIMONY FROM THE DEFENSE INVESTIGATOR, WHICH IMPROPERLY BOLSTERED THE TESTIMONY OF THE STATE'S ONLY ALLEGED EYEWITNESS.

POINT II: NUNEZ WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR IMPROPERLY VOUCHED FOR AND BOLSTERED JAILHOUSE-INFORMANT SAMPSON'S CREDIBILITY BY ELICITING TESTIMONY THAT HIS PLEA WAS CONDITIONED ON TRUTHFUL TESTIMONY AT TRIAL, TELLING THE JURY IN SUMMATION THAT SAMPSON FACED GRAVE CONSEQUENCES IF HE LIED, AND SUGGESTING THAT SAMPSON WAS CREDIBLE BECAUSE HE HAD PROVIDED FAR MORE INFORMATION THAN WAS REQUIRED TO SECURE A PLEA DEAL. (NOT RAISED BELOW)

POINT III: IN THE FACE OF A POLICE INVESTIGATOR'S REPEATED REFERENCES TO HAVING OBTAINED NUNEZ'S PHOTOGRAPH FROM A DATABASE OF PEOPLE WHO HAD "BEEN THROUGH THE SYSTEM," THE JUDGE'S FAILURE TO PROVIDE A CURATIVE INSTRUCTION OR THE MODEL CHARGE ON POLICE PHOTOGRAPHS WAS PLAIN ERROR AND DENIED NUNEZ A FAIR TRIAL. (NOT RAISED BELOW)

5 A-3197-11T2 POINT IV: THE CUMULATIVE EFFECT OF THE AFOREMENTIONED ERRORS DENIED NUNEZ A FAIR TRIAL.

POINT V: THE DEFENDANT'S SENTENCE OF 73 YEARS WITH 60 1/4 YEARS WITHOUT PAROLE IS EXCESSIVE.

The Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution both

guarantee criminal defendants the "unfettered access and

assistance" of counsel. State v. Scoles,

(2013). "That right clearly extends to the assistance of

experts to aid in the accused's defense."

A thorough

defense investigation is also part of the right to counsel.

State v. Williams,

(1979).

The judge permitted the State to call Reubel to testify

based on N.J.R.E. 803(a)(2), which provides that a witness's

prior statement is admissible if it is "consistent with the

witness'[s] testimony and is offered to rebut an express or

implied charge against the witness of recent fabrication or

improper influence or motive[.]" The judge accepted the State's

argument that, because the defense had attacked Searles's

credibility by demonstrating inconsistencies between his first

statement to police and his trial testimony, an allegation of

recent fabrication existed justifying the introduction of a

prior consistent statement. Reubel testified that Searles

6 A-3197-11T2 implicated defendant as the shooter in the defense interview,

consistent with Searles's trial testimony and Searles's

jailhouse interview with law enforcement. Reubel shed no light

on the purported differences between Searles's first statement

to law enforcement and Searles's trial testimony.

Defendant argues that he did not allege recent fabrication,

but rather that Searles gave a false statement seeking favorable

treatment from the State for the charges pending against him.

Searles thus already had the motivation to lie a week before he

entered his guilty plea, when he spoke with Reubel. Thus, the

primary defense attack on Searles's credibility was that he lied

to obtain a better plea deal, not that he made up the story

recently.

The State argues that even if there is no allegation of

recent fabrication, a prior consistent statement may be admitted

to rebut the allegation of a motive to lie, even if it was given

after the motive arose. See State v. Muhammad,

(App. Div.) (holding that N.J.R.E. 803(a)(2) does

not in every circumstance require that a prior consistent

statement be made before a motive to lie arose to be admissible,

although "whether the statement was made before the asserted

motive or influence to fabricate is a substantial factor in

determining relevance"), certif. denied,

(2003). In

7 A-3197-11T2 the factual situation represented here, it is difficult to

justify the admission of Searles's prior consistent statement,

given after Searles had a reason to cooperate with the State for

his own benefit.

We are compelled to reverse, however, not because a prior

consistent statement may have been improperly introduced to

bolster Searles's credibility. Rather, it is because that prior

consistent statement came from a defense investigator, a part of

the defense team whose job it was to interview the witness as an

aid to defense counsel; a witness whom the State should not have

been permitted to call.

We have held that it is reversible error for a court to

order the defense to provide investigation notes to the State

and then allow the State to call a defense investigator as a

rebuttal witness to testify to prior consistent statements given

by a child-victim. State v. Atkins,

(App. Div. 2009). Unlike these circumstances, in Atkins we

noted that other witnesses could have been called by the State

to testify to the child's prior consistent statements.

Regardless of the availability of other witnesses to testify

about a prior consistent statement, or the strength of the

defense allegation of recent fabrication, the State's use of a

defense investigator is error of constitutional proportion.

8 A-3197-11T2 Defense counsel objected to the State calling the defense

investigator on the basis that the prior consistent statement

should not be admitted pursuant to counsel's reading of N.J.R.E.

803(a)(2), not because the State calling a defense investigator

intruded into the attorney-client relationship or defendant's

right to counsel. We thus review the judge's decision to allow

the investigator to be called by the State pursuant to the plain

error standard of review. R. 2:10-2; see State v. Nelson,

(App. Div.) (citing to Rule 1:7-2 in

determining that when defense counsel's trial objection is not

stated in understandable legal terms, and, unlike this case, the

issue is raised on appeal for different reasons, reversal should

occur only if the plain error standard is met), certif. denied,

(1999).

Generally, a party's failure to object to testimony at

trial "may indicate that counsel perceived no prejudice." State

v. Loyal,

(App. Div.) (finding no

prejudice in defense counsel's summation where the State did not

object at trial), certif. denied,

(2006). Here,

however, defense counsel recognized the damage that the defense

investigator could inflict. Counsel objected to the State

calling Reubel at trial, although relying on the Rules of

Evidence rather than defendant's right to counsel.

9 A-3197-11T2 In 1978, our Supreme Court eloquently explained the

violation of both the attorney-client privilege and right to

counsel caused by allowing a part of the defense team to be used

by the State. In commenting on the State's use of a defense

handwriting expert not called by the defense, Justice Pashman

stated:

Reliance upon the confidentiality of an expert's advice itself is a crucial aspect of a defense attorney's ability to consult with and advise his client. If the confidentiality of that advice cannot be anticipated, the attorney might well forego seeking such assistance, to the consequent detriment of his client's cause. The protection from unwarranted disclosure we today mandate is an indispensable element of a criminal defendant's constitutional right to the effective assistance of counsel.

[State v. Mingo,

(1978).]

In Mingo, the error was deemed harmless "in the unique

circumstances of th[e] case" because the defendant admitted

writing the note in question.

. Relying on Mingo, we

have held that the State's questioning of a defense expert about

another defense expert's report, which was not used by the

defense at trial, violates a defendant's constitutional right to

counsel and furnishes an independent ground for reversal, even

though not raised on appeal. State v. Spencer,

(App. Div. 1999).

10 A-3197-11T2 Mingo was confined to experts.

. The Court later extended the holding in Mingo to other

defense materials that a defendant does not intend to use at

trial.

. In Williams, our

Supreme Court determined the scope of the reciprocal discovery

rule, Rule 3:13-3, as it relates to inculpatory defense

material. The Court reversed a conviction, finding a violation

of the right to counsel where the State used at trial defense

attorney and defense investigator notes of the photographic

identification of defendant made to them by the State's witness.

. The Court said, "To hold otherwise would

infringe on a defendant's constitutional right to the effective

assistance of counsel because of the chilling effect it would

have on defense investigation."

. Reubel's

investigation report detailing his interview with Searles was

prepared exclusively for defendant, who had no intention of

using it at trial.2 Calling Reubel to testify relying on his

report, rather than using the notes as occurred in Williams, did

not absolve the State from its intrusion on defendant's rights.

2 It is unclear from the record how the State became aware of Reubel's interview of Searles. Even if defense counsel gave Reubel's report to the State, the State could not call Reubel as a witness.

.

11 A-3197-11T2 The State's use at trial of inculpatory defense information

violated defendant's right to effective assistance of counsel.

Having to risk the State's introduction of the results of a

defense investigation unconstitutionally hampers the ability of

defense counsel to render effective representation to clients.

How can a defense attorney properly investigate defendant's case

if the lawyer must be concerned with possible use of the

investigator's work product to assist the State? When would

defense counsel send an investigator to interview the State's

witnesses if a consistent statement could be used by the State

to bolster its case? "Defense counsel would be hesitant to make

an in-depth investigation of the case for fear that inculpatory

material would be disclosed which might have to be turned over

to the State." Id. at 478-79. Just as defense reports not

intended to be used at trial are not discoverable, id. at 481,

neither is defense testimony available to the State. We

accordingly hold that the testimony of a defense investigator

not called by defendant is not available to the State.

The State's claim that the admission of Reubel's testimony

at worst represents harmless error is unpersuasive. See State

v. Macon,

(1971) ("[A] new trial shall be

ordered if there is a reasonable doubt as to whether the

constitutional error contributed to the verdict."); R. 2:10-2.

12 A-3197-11T2 Analyzing this case under the plain error standard of review, we

conclude that there is a reasonable doubt as to whether the

admission of Reubel's testimony contributed to the verdict.

The impact of defendant's own investigator, whether hired

by current defense counsel or by the Public Defender's Office,

testifying on behalf of the State to enhance the credibility of

the only eyewitness to the crime cannot be deemed harmless

because Searles's credibility was crucial to the State's case.

In light of our determination, we need not address the remaining

issues raised by defendant. We do note that it was improper for

a police investigator to testify that he obtained defendant's

photo from a database of people who had "come through the

system." See State v. Taplin,

(App.

Div. 1998) (reversing a theft conviction after the State

introduced into evidence the defendant's "mug shots" because a

jury could have inferred that the defendant had a prior criminal

record from the photographs).

Reversed and remanded for further proceedings consistent

with this opinion. We do not retain jurisdiction.

13 A-3197-11T2