NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

MICHAEL NUNEZ,

Defendant-Appellant.

________________________________________________________________

Submitted April 29, 2014 – Decided

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 

APPROVED FOR PUBLICATION

June 10, 2014

APPELLATE DIVISION

June 10, 2014
2 A-3197-11T2

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 eightyfive 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.
3 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 
4 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.
5 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)
6 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, 214 N.J. 236, 258 

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

experts to aid in the accused's defense." Ibid. A thorough 

defense investigation is also part of the right to counsel. 

State v. Williams, 80 N.J. 472, 478-79 (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 
7 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, 359 N.J. Super.

361, 386-89 (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, 178 N.J. 36 (2003). In 
8 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, 405 N.J. Super. 392, 405-06

(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. Ibid. 

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.
9 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, 318 

N.J. Super. 242, 249-50 (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, 

158 N.J. 687 (1999).

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

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

v. Loyal, 386 N.J. Super. 162, 173-74 (App. Div.) (finding no 

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

object at trial), certif. denied, 188 N.J. 356 (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. 
10 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, 77 N.J. 576, 587 (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. Id. at 588. 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, 319 N.J. Super.

284, 300-01 (App. Div. 1999). 
11 A-3197-11T2

Mingo was confined to experts. Mingo, supra, 77 N.J. at 

585. The Court later extended the holding in Mingo to other 

defense materials that a defendant does not intend to use at 

trial. Williams, supra, 80 N.J. at 480-81. 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. 

Id. at 477-79. 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." Id. at 478. 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. Mingo, supra, 77 N.J. at 586.
12 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, 57 N.J. 325, 340 (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. 
13 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, 230 N.J. Super. 95, 99-100 (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.