Halpern, Matthews and Bischoff. The opinion of the court was delivered by Bischoff, J.A.D.
In a two-count indictment defendants Green and Guida were charged with unlawful possession of a controlled dangerous substance (marijuana) in excess of 25 grams, contrary to N.J.S.A. 24:21-20(a)(3), and unlawful possession of a controlled dangerous substance (methamphetamine and PCP), in violation of N.J.S.A. 24:21-20(a)(1). They were convicted by a jury on both counts. Their motion for a new trial was denied. Both were sentenced and filed a joint notice of appeal.
The State's proofs indicate that on December 15, 1971 two state troopers observed a Dodge van being operated on the New Jersey Turnpike with its windshield obstructed. They stopped the van and ascertained it was owned by Green and operated by Guida. When the owner had difficulty locating his registration papers, one trooper directed his flashlight into the interior of the van to lend assistance and observed a knife strapped to the seat on the driver's side and cigarette papers on top of the engine compartment. Observation of the eyes and demeanor of the occupants of the car led the troopers to conclude the occupants were under the influence of narcotics. They were placed under arrest for possession of the knife and for being under the influence of narcotics. A search of the vehicle disclosed the presence of a quantity of narcotics including pills and marijuana.
Green first admitted the pills belonged to him and that he had purchased them "cheap." He later denied that story. Guida said he was merely a hitchhiker and while he knew the narcotics were in the vehicle they did not belong to him. Both defendants were represented at the time of trial by the same counsel, who undertook this joint appeal and filed
a joint brief for them. Thereafter separate counsel was substituted for Guida and a supplemental brief filed on his behalf only. Multiple issues are raised by the two briefs.
The chief argument made by Guida in his supplemental brief is the contention that he was denied due process of law and a fair trial because he and his codefendant were represented by the same attorney at trial. Such dual representation, it is argued, was a denial of his right to effective assistance of counsel because his attorney necessarily had a conflict of interest. Although Guida never requested separate counsel, he now claims he was prejudiced by the joint representation at trial.
It is clear that both the State and Federal Constitutions give an accused the right to have the untrammelled and unimpaired assistance of counsel in his defense. State v. Whitlow, 45 N.J. 3, 27 (1965); Gov't. of Virgin Islands v. John, 447 F. 2d 69, 74 (3 Cir. 1971). Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), requires a defendant should have nothing less than the undivided loyalty of his counsel. In the case of Gov't. of Virgin Islands v. Hernandez, 476 F. 2d 791 (3 Cir. 1973), the court said:
The Supreme Court has held that the sixth amendment right to fair and effective assistance of counsel can be abridged when several defendants are represented by one counsel. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). Although recognizing that this constitutional right could be waived, the Court said any waiver must be made knowingly and intelligently * * *. [at 793]
Every reasonable presumption should be indulged against a waiver. Id. at 793.
While the State recognizes these decisions and the right of defendant to counsel, it contends that not every case of dual representation is per se constitutionally fatal to a trial
in which either or both defendants are convicted and argues that the general and better rule requires a specific instance of prejudice or a real conflict of interest to exist before it can be said that effective assistance has been denied, citing Glasser v. United States, 315 U.S. 60, 72-76, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Lovano, 420 F. 2d 769, 774 (2 Cir. 1970), cert. den. 397 U.S. 1071, 90 S. Ct. 1515, 25 L. Ed. 2d 694 (1970); Fryar v. United States, 404 F. 2d 1071, 1073 (10 Cir. 1968), cert. den 395 U.S. 964, 89 S. Ct. 2109, 23 L. Ed. 2d 751 (1969); United States ex rel. Smith v. New Jersey, 341 F. Supp. 268, 271 (D.N.J. 1972).
Defendant Guida, on the other hand, contends that the right to effective assistance of counsel is denied when dual representation results in a showing of a possible conflict of interest or prejudice, however remote. Walker v. United States, 422 F. 2d 374, 375 (3 Cir. 1970), cert. den. 399 U.S. 915, 90 S. Ct. ...