On appeal from Superior Court of New Jersey, Law Division, Essex County.
Brody, Gruccio and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.
[245 NJSuper Page 391] Charged with murder and weapon offenses, defendant was convicted after a jury trial of first-degree aggravated manslaughter, a violation of N.J.S.A. 2C:11-4a, and third-degree possession of a handgun without having obtained a permit, a violation of N.J.S.A. 2C:39-5b. The trial judge imposed a
Graves Act sentence of 30 years imprisonment, 10 years to be served before parole eligibility, for the aggravated manslaughter and a concurrent 4 years imprisonment for the weapon offense. Defendant argues that (1) his trial attorney provided ineffective assistance of counsel, (2) the judge erred in restricting his redirect examination respecting a written statement in evidence that he had given the police, (3) the verdict was "against the weight of the evidence," and (4) the sentence was "unduly punitive."
The State presented evidence that defendant and four companions drove to a multifamily building on an August evening around 8:30 p.m. Defendant and three of his companions, two Livingston brothers and Terrence Chatman, left the car and entered a large courtyard behind the building. Among the people leisurely milling in the yard were George Sharp and his sister. One of the Livingston brothers approached Sharp and they began fighting. Sharp's sister testified that after a few minutes she saw the Livingston brother move away from Sharp, and saw Chatman and another man walk up to him and reach for something at their waists. She then heard three or four gunshots after which her brother fell to ground. He had been struck and killed by a single .38 caliber bullet in the back. Another witness testified that as Chatman and his three companions were fleeing she saw that Chatman was carrying a .38 caliber handgun.
The State's two witnesses at the scene could identify Chatman and the Livingston brothers, but neither could identify the fourth man. They could only say that he wore a white jacket with a hood covering most of his face. Sharp's sister testified that one of the two "shooters" was Chatman and the other was the hooded man. Defendant, who was then 17 years old, later admitted in a written statement to the police that he, Chatman and the Livingston brothers were the four men who had entered the yard together shortly before the shooting. He stated in the statement and testified at trial that Chatman alone did the shooting.
As a result of the investigation that followed, police went to defendant's home several days after the shooting. Defendant was not there. The police told his mother that they wanted to question him about the homicide. Defendant later went to police headquarters where he gave the police the written statement in the presence of his mother and his attorney.
Defendant stated in the statement that Chatman had come to his home to ask him to accompany him to the building where the shooting later occurred. Chatman asked defendant to bring a handgun. The only reason Chatman gave for making the trip was that someone had robbed him of a gold chain. Defendant explained in his testimony that he understood that the purpose of the trip was to get back the chain. He denied, however, that he intended to use the gun for that purpose. In his statement he stated that his gun was not loaded and he had no bullets. In his testimony he added that the gun was inoperable.
Defendant's trial testimony was consistent with the State's witnesses' description of the fight between Sharp and the Livingston brother. However, he testified that Chatman alone stepped up to Sharp and shot him. He further testified that he never removed his gun from his trousers pocket and was not aware that Chatman had a gun. He ran home after the shooting, disposing of his gun in a cemetery that was along the way.
Defendant's main argument arises from the fact that the attorney who witnessed the taking of his statement also represented him at trial. Defendant contends that this presented a conflict of interest and led to the trial judge's prejudicial curtailment of his redirect examination. With certain exceptions, a "lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . ." RPC 3.7. The ethical prohibition is not against being a witness, but against acting as trial attorney in a case where it is likely that the attorney's testimony will be necessary. An attorney representing a party at trial is competent to testify at the trial even though his decision to try the case may have been unethical. See Callen v. Gill, 7 N.J. 312, 318, 81 A.2d 495 (1951); Barbetta