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In re Kozlov

Decided: February 28, 1979.

IN THE MATTER OF HERSCHEL KOZLOV, ESQUIRE, CHARGED WITH CONTEMPT OF COURT


On certification to the Superior Court, Appellate Division, whose opinion is reported at 156 N.J. Super. 316 (1978).

For reversal and remandment -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Hughes, C.J. Handler, J., concurring. Handler, J., concurring in the result.

Hughes

The factual background of the judgment from which this appeal is taken is generally well stated in the opinion of the Appellate Division. In re Kozlov, 156 N.J. Super. 316 (App. Div. 1978). It is unnecessary for us to consider all of the legal conclusions it reached on that factual base, since we are convinced that its judgment must be reversed on an entirely separate and supervening ground -- one not prominently dealt with therein, and perhaps not sufficiently recommended to its attention by the parties or indeed by the factual record made in the case. Be that as it may, the following somewhat unusual question is projected by this appeal.

One Floard C. Catlett, the police chief of the Borough of Lawnside in Camden County, was convicted by a jury on an indictment charging him with a criminal offense, the nature of which is not relevant to the issue before this Court. A member of that jury, one Yacovelli, Juror Number 11, had denied by his silence on voir dire examination by the court under R. 1:8-3, that he knew the trial defendant or was

prejudiced against him in any way. Indeed he forswore by that very silence that any matter existed which might affect his service as an impartial and disinterested juror. As a natural result the trial defendant interposed no challenge to such juror, either for cause, R. 1:8-3(b), or peremptorily, R. 1:8-3(d), and thus it came about that Yacovelli sat in judgment on defendant.

Some time after the highly publicized conviction of Catlett events occurred which led eventually to the conviction for contempt, by the Catlett trial judge, of an attorney at law, the appellant-respondent Kozlov, described below as a "reputable member of the bar acting in good faith * * *." In re Kozlov, supra, 156 N.J. Super. at 320. Kozlov had theretofore been uninvolved in any way with the Catlett trial itself, and might well be characterized as the classic "innocent bystander." The events which led to his conviction, described in proceedings preliminarily (and appropriately) heard in camera, Scott v. Salem Cty. Memorial Hosp., 116 N.J. Super. 29, 35 (App. Div. 1971), came about in this way. A long-standing family and business client of Attorney Kozlov, while consulting him on an unconnected legal matter, solicited professional advice as to his, the client's, duty to divulge knowledge which had come to him accidentally and which affected the validity of the Catlett conviction and thus the integrity of the administration of justice. The evidence supplied to Kozlov, if true, would have so contaminated the jury conviction of Catlett as to despoil his Sixth Amendment right to fair trial by an impartial jury and to entitle him, under most conceivable circumstances, to new trial.

The information was related to Kozlov by his client on condition that whatever the lawyer decided to do with it, the client's name as its source would never be revealed. Compatible, surely, with his obligation as an officer of the court, Kozlov disclosed the information to one Poplar, defense attorney for Catlett, emphasizing the stipulated anonymity of his client. While he might better have directly informed the

trial court (DR 7-108(E) provides: "A lawyer shall reveal promptly to the court improper conduct by * * * a juror * * * of which the lawyer has knowledge"), we regard this misdirection as inconsequential in the circumstances. Kozlov was entitled to assume that Poplar would transmit the information to the court in support of a challenge to the validity of the Catlett verdict. Indeed, had Kozlov alternatively decided to inform the prosecutor, that official would have been equally bound to share the information with the court and for the same purpose -- to elicit its inquiry and impartial judgment as to the validity of the basic conviction. See State v. Vinegra, 73 N.J. 484, 501-02 (1977).

The information involved was as follows: shortly after Catlett's conviction, juror Yacovelli was heard to boast that he had gotten "even with the defendant [Catlett] for the arrest and prosecution of a member of his [Yacovelli's] family." In re Kozlov, supra, 156 N.J. Super. at 318. As we have indicated, this activated Kozlov's professional conscience and action. Understandably, his disclosure induced this movement by Poplar:

Poplar investigated Kozlov's information and discovered that a person bearing the same surname as the juror in question and residing at his address had in fact been the defendant in a disorderly person's proceeding in the Borough of Lawnside Municipal Court. He thereupon made application pursuant to R. 1:16-1 to the judge who had presided at Catlett's trial seeking to have the juror interviewed. The application was supported by Poplar's affidavit which contained Kozlov's hearsay, a recitation of the pertinent facts of the Lawnside Municipal Court proceeding and the recollection that at the voir dire of prospective jurors the juror in question, as did all the others ultimately sworn, denied knowing Catlett or having any reason for bias against him. [ Id. at 319 (footnote omitted)].

We observe that Poplar could probably have gone no further in his investigation under the stricture of R. 1:16-1,*fn1

State v. LaFera, 42 N.J. 97, 105-07 (1964), so that under that rule he appropriately appealed to the court to initiate and supervise further investigation including, certainly, interrogation of the juror.

The Appellate Division recalled that the "trial judge was not satisfied with the sufficiency of Poplar's affidavit as a basis for initiating the juror-interrogation process since the affidavit relied exclusively on the hearsay information and the municipal court record, which on its face showed no direct link between the juror and Catlett." 156 N.J. Super. at 319 (footnote omitted). As the more certain record stands before us now, however, the "no direct link" postulate of that decision is significantly weakened. For by leave of this Court the record has been amplified by copies of the municipal court arrest report of one Luciana Yacovelli, which evidences a much stronger link between the juror and Catlett. This evidence was not, as it should have been, fully placed before the trial judge, although its existence was suggested on the record. That faulty record no doubt misled both trial judge and Appellate Division.

It is now clear that the arresting officers were, in fact, Patrolman James Morris and Sergeant Floard C. Catlett, Jr. (defendant Catlett's son). They acted on a charge of violation of N.J.S.A. 2A:170-98 (shoplifting) and N.J.S.A. 2A:170-29 (use of offensive language, etc.). Luciana Yacovelli was convicted in the municipal court on the first charge mentioned. This link seems to us to be circumstantially so persuasive that it, had it been entirely made clear, together with the hearsay evidence of juror Yacovelli's boast of retaliation against Catlett for a supposed wrong, should have energized the trial judge to proceed with an immediate investigation, commencing with his interrogation of Luciana Yacovelli and the juror involved, to determine their relationship

and the supposed rancor and prejudice attributed to the juror because of her conviction. Cf. Scott v. Salem Cty. Memorial Hosp., supra, 116 N.J. Super. at 37 ("In light of the evidence to which we have alluded * * * we are convinced that the trial court should have allowed further inquiry with respect to the alleged irregularit[y])."

Instead there ensued a sequence of in camera hearings, to interrogate not the implicated juror but rather the attorney who had reported the alleged misconduct. These hearings explored at considerable length the scope of the attorney-client privilege, and the nuances of distinction between the forced disclosure of a professional communication itself and the identity of the client. In re Richardson, 31 N.J. 391, 397 (1960); State v. Toscano, 13 N.J. 418, 424 (1953); In re Kozlov, supra, 156 N.J. Super. at 321-24. The trial court decided, and the Appellate Division agreed, that the attorney-client privilege did not extend so far as to permit Kozlov to withhold the name of ...


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