On appeal from Superior Court of New Jersey, Law Division, Essex County.
J. H. Coleman, Deighan and Baime.
[232 NJSuper Page 167] The crucial issue raised in this appeal is whether two attorneys assigned to represent defendant in a capital murder trial were properly removed from the case. The trial judge concluded that the two attorneys had created an actual conflict of interest by participating in a scheme to have the chief prosecution
witness marry defendant to deprive the State of her testimony pursuant to the marital privilege, Evid.R. 23(2). He ordered their removal from the case. We agree and affirm.
Essex County Indictment 2578-8-3 charged defendant Rafael M. Rivera with knowing or purposeful murder by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) or (2) (Count One); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (Count Two); robbery, contrary to N.J.S.A. 2C:15-1 (Count Three); aggravated sexual assault, contrary to N.J.S.A. 2C:14-2 (Count Four); and burglary, contrary to N.J.S.A. 2C:18-2 (Count Five). At the conclusion of a lengthy jury trial in which the State sought the death penalty, defendant was found guilty on Counts One, Three, Four and Five. He was acquitted of felony murder, Count Two. In the capital sentencing phase of the trial, the jury was unable to reach a unanimous verdict, thereby precluding the death penalty.
Following the denial of defendant's motion for a new trial, the trial judge granted the State's motion to impose an extended term on Count Four. Defendant was sentenced to life with 30 years of parole ineligibility for the murder. He was sentenced to a consecutive extended term of life with 25 years of parole ineligibility for the aggravated sexual assault. The court imposed concurrent custodial terms on the two remaining counts.
In a brief filed by counsel on behalf of defendant, and in a pro se supplemental brief, the following contentions have been raised:
I JUDGE DIOS ERRED BY REMOVING BROEGE AND GRAVES AS DEFENDANT'S TRIAL ATTORNEYS.
II JUDGE DIOS ERRED IN ADMITTING DEFENDANT'S ATTEMPT TO MARRY DIANE SANDERS AS EVIDENCE OF DEFENDANT'S CONSCIOUSNESS OF GUILT.
III JUDGE DIOS ABUSED HIS DISCRETION BY REFUSING TO GRANT DEFENDANT'S MOTION FOR A MISTRIAL.
IV JUDGE DIOS ERRED BY SENTENCING DEFENDANT TO A CONSECUTIVE TERM ON THE COUNT FOUR AGGRAVATED SEXUAL ASSAULT CONVICTION.
On July 16, 1983, Elizabeth Cornwall, a 78 year old widow who used a cane for ambulation, was murdered in the bedroom of her second floor apartment located at 143 Flemming Avenue, Newark. She lived on Social Security payments and benefits from the Veterans Administration. Defendant, his girlfriend Diane Sanders, and their three children resided in a second floor apartment located next to the victim. The victim regarded defendant and his family as part of her extended family. She would baby-sit for defendant's children at times. The three children called the victim "grandmother."
The victim visited Sanders in Sanders' apartment several times on July 16. The last time was about 4:15 p.m. Defendant came home at approximately 4:30 p.m., while the victim was visiting, and left 15 minutes later saying he was going out with friends. The victim went home at about 5:05 p.m. A short while later, Sanders and her son James placed their ears against a common wall which separated Sanders' bedroom from the victim's bedroom after hearing suspicious noises. They heard what sounded like a bed squeaking. James also heard a man's voice in the victim's bedroom. Defendant returned home shortly after the noise ended. When Sanders told defendant about the bed squeaking and the man's voice, defendant responded that he had been in the victim's apartment looking for money when the victim walked in and surprised him. Defendant told Sanders that he struck the victim several times. In an effort to check on the victim, Sanders entered the victim's apartment through an unlocked door. From the kitchen, she saw the victim lying on the bed with her head back.
After returning home in a frightened state, Sanders called Eddie Golda, the owner of a nearby bar who was also friendly with the victim. Golda and Sanders entered the victim's apartment and he checked the victim's pulse. Being unable to feel a pulse, he concluded the victim was dead. An ambulance was called; it arrived at about 7:20 p.m. The victim was taken first
to University Hospital where she was pronounced dead. She was then taken to the morgue.
At or about the time the victim was taken to the morgue, defendant was visiting with another girlfriend, Jeanel Daniels, who lived on Hawkins Court in Newark. Defendant told her that he had murdered an old lady with his hands. He said he strangled her.
An autopsy was performed on July 17. It revealed the victim's face and neck were covered with bruises. There were pressure marks on the left side of her jaw. Marks on the right side of the face indicated linear abrasions surrounded by bruising. Hemorrhaging was found under the tongue, behind the eye and underneath the cheek. Bruises were located on her forearms and mid-back. Tiny abrasions were found on her lips. Gross examination of the rib cage revealed two fractured ribs. Hemorrhaging as well as black and blue marks were found which were caused by multiple impacts, probably inflicted by slapping, punching or a series of blows to the victim. The cause of death was asphyxiation due to pressure being applied to the neck and throat, commonly called strangulation.
In addition, the autopsy revealed that the victim had been sexually assaulted. Her vagina was torn in the back and was oozing blood. There was bruising of the mucous membrane and the area near the urethra. These injuries were caused by an object at least three inches in diameter such as the cane used by the victim for ambulation or defendant's hand.
Based on the autopsy report, a homicide investigation was undertaken by Detectives Jack Eutsey and Charles Conte of the Newark Homicide Squad. Detective Eutsey took a statement from Sanders on July 17 and 18. Sanders also gave statements to Investigator Roger Spain of the Essex County Prosecutor's Office on July 17, 18 and 19, 1983. In her first statement, Sanders identified a male named Dennis as the only suspect and she did not ...