State v. Murphy

• Decision Date: 20 November 1961
• Docket Number: No. A--4,A--4
• Parties: STATE of New Jersey, Plaintiff, v. Francis MURPHY et al., Defendants. In the Matter of the Application to Quash Subpoena to WATERFRONT COMMISSION OF NEW YORK HARBOR. Waterfront Commission of New York Harbor, Appellant, and Francis Murphy et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 172

36 N.J. 172

175 A.2d 622

STATE of New Jersey, Plaintiff, v. Francis MURPHY et al., Defendants.

In the Matter of the Application to Quash Subpoena to

WATERFRONT COMMISSION OF NEW YORK HARBOR.

Waterfront Commission of New York Harbor, Appellant,

and

Francis Murphy et al., Defendants-Respondents.

No. A--4.

Supreme Court of New Jersey.

Argued Sept. 25, 1961.

Decided Nov. 20, 1961.

Robert A. Pin, Park Ridge, for appellant Waterfront Comm. of New York Harbor (William P. Sirignano and Irving Malchman, New York City, on the brief).

Harold Krieger, Jersey City, for defendant McNamara (Krieger & Chodash, Jersey City, attorneys).

James A. Hession, Jersey City, for defendant Stevens (O'Mara, Schumann, Davis & Lynch, Jersey City, attorneys).

The opinion of the court was delivered by

WEINTRAUB, C.J.

The trial court ordered pretrial discovery of statements which defendants McNamara and Stevens gave the Waterfront Commission of New York Harbor (herein Commission). State v. Murphy, 63 N.J.Super. 188, 164 A.2d 289 (Cty.Ct.1960). The order deals as well with notes or memoranda of examinations of defendants, but since no such papers exist, we are concerned only with the stenographic transcript of their testimony before the agency.

The statements, made in the course of an investigation conducted by the Commission, were part of the material the Commission sent to the Attorney General, thus informing him of an alleged crime and resulting ultimately in the indictment in this matter. The indictment charges a conspiracy among Francis Murphy, McNamara, Stevens and others, to cheat and defraud American Export Lines, Inc. In essence it § alleged that Murphy, business agent of Local 1 of the International Longshoremen's Association, had eight longshoremen and a checker work upon alterations and improvements of a house he owned; that these men were recorded on the payroll records of American Export Lines, Inc., as working on the days they in fact worked on the Murphy house, and were paid by the company; that McNamara, the hiring agent employed by the company and licensed by the Commission, and Stevens, the general superintendent of the company, were parties to the conspiracy thus to defraud the company.

In their respective motions McNamara and Stevens asked for inspection of 'written statements made by said defendant which will be offered at the trial.' The Commission was not a party to the motions, and when it learned of them, it expressed its opposition to the deputy attorney general who handled the matter for the county prosecutor. The Commission's position will be stated hereinafter. Thereupon the deputy attorney general stipulated the State would not use or in any way refer to the statements at the trial of the indictment. The trial court rejected the stipulation, saying (63 N.J.Super., at p. 195, 164 A.2d, at p. 292):

'* * * The prosecutor represents the community and society. It is his duty to present and use all evidence within his knowledge and possession in order to vigorously present a case against a defendant. It is not for him to decide that evidence previously given by a defendant is not to be used at a trial in which the same defendant is accused of a crime.'

The transcripts having been returned to the Commission, the trial court on its own initiative directed a subpoena Duces tecum to issue commanding the secretary of the Commission to produce them. The Commission countered with a motion to quash the subpoena. The motion was denied, and the Commission appealed. We certified the matter before the Appellate Division acted upon it.

We think the trial court erred in issuing the subpoena on its own motion. The application of each defendant was limited to such statement of his own as 'will be offered at the trial.' When the State stipulated it would not offer or use the statements, there disappeared the premise upon which the motions depended. It then rested with defendants to decide whether they needed pretrial inspection for other reasons, and if so, to make another application to which the parties in interest could then address their views.

As noted above, the trial court did not find defendants needed inspection for some purpose other than to meet the use of the statements against them, but rather held the State could not bind itself not to use the statements, and hence the premise of defendants' motions subsisted.

We cannot accept the trial court's view of the prosecutor's authority. It is true that a criminal charge will not be dismissed upon the prosecutor's motion without the court's approval, R.R. 3:11--3(a), and it may well be that if a stipulation not to use certain evidence would lead to a motion to dismiss, the court's power of superintendence could be invoked. And it may be granted a court may itself summon a material witness where neither side will call him. See State v. Butler, 27 N.J. 560, 601, 143 A.2d 530 (1958); Band's Refuse Removal, Inc. v. Borough of Fair Lawn, 62 N.J.Super. 522, 548, 163 A.2d 465 (App.Div.1960), certification denied, 33 N.J. 387, 164 A.2d 849 (1960). But nonetheless the prosecutor, as the State's representative, has wide discretion with respect to the production of proof, a discretion which, it seems to us, the trial court denied in absolute terms.

A prosecutor may sensibly decide for various reasons not to use evidence which could advance the State's case. For example, a confession or other proof which the State does not need may raise distracting issues or unduly extend the trial or invite claims of prejudice; or the offer may disclose material which can harm the State in another matter; or the identity of an informer may needlessly be revealed. We have suggested enough to demonstrate the need for discretion in the prosecutor. He does not have a peremptory duty to use all available evidence to support the charge. And surely, if a court should undertake to review the prosecutor's decision in such matters, it must know the reasons for his decision and weigh them against the contribution the evidence could make in the case. As the record stands, there was no basis to question the State's decision.

For the reasons given the order under review ought to be reversed and defendants remitted to another application. But in the course of the proceedings, the applications of defendants were reshaped and the parties received full opportunity to be heard upon them; and since the trial of this indictment has been much delayed by this preliminary quarrel, we will consider the issue as now presented, so that the trial will not be further postponed.

R.R. 3:5--11 deals with discovery and inspection and reads:

'Upon motion of a defendant made at any time after the filing of the indictment or accusation, the court shall order the prosecutor to permit the defendant to inspect and copy or photograph designated books, tangible objects, papers or documents other than written statements or confessions made by the defendant obtained from or belonging to the defendant and may, if the interest of justice so require, order the prosecutor to permit the defendant to inspect and copy or photograph written statements or confessions made by the defendant and designated books, tangible objects, papers or documents obtained from others except written statements or confessions.'

The subpoena was issued under R.R. 3:5--10(c) which reads:

'A subpoena may also command the person to whom it is directed to produce books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence, and may upon their production permit the books, papers, documents, or objects or portions thereof, to be inspected and copied by the parties and their attorneys.'

We must first consider the connection between the subpoena rule and a defendant's right to pretrial inspection. We obtained our subpoena rule from Rule 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The question whether Rule 17(c) relates to pretrial discovery was considered in Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). See also United States v. O'Connor, 237 F.2d 466 (2 Cir. 1956). There is disagreement upon the precise meaning of Bowman. One view is that it holds Rule 17(c) does not enlarge the right to discovery prescribed by Federal Rule 16, and provides merely for inspection of evidentiary material the applying party may offer, such inspection thus serving only to expedite the trial itself. Some courts, however, appear to find authority in Bowman for pretrial inspection as such. See Orfield, 'Discovery and Inspection in Federal Criminal Procedure,' 59 W.Va.L.Rev. 312, 329 (1957).

Federal Rule 17(c) appeared in the Tentative Draft of Rules (1948) as Rule 2:5--8(c) with the comment (p. 52) that the rule accords 'with the present practice in New Jersey except that it specifically outlines the procedure for the parties to examine documents before the trial in order that they may be in a better position to prepare the case and not waste the court's time.' The statement just quoted is not precisely revealing with respect to the immediate question. In both State v. Cicenia, 6 N.J. 296, 300, 78 A.2d 568 (1951), certiorari denied, 350 U.S. 925, 76 S.Ct. 215, 100 L.Ed. 809 (1955), and State v. Tune, 13 N.J. 203, 212, 222, 98 A.2d 881 (1953), a subpoena under that rule was accepted as an appropriate vehicle for discovery but neither case found the rule defined the basis for entitlement. Thus the rule leaves unaffected the pre-existing inherent power of the court to decide the meritorious question as the interests of justice may require. It was while Tune was pending that R.R. 3:5--11...