On certification to the Superior Court, Appellate Division.
The opinion of the Court was delivered by Handler, J. Chief Justice Poritz and Justices Pollock, O'hern, Garibaldi, and Coleman join in Justice HANDLER's opinion. Justice Stein has filed a separate opinion Concurring in part and Dissenting in part.
The opinion of the court was delivered by: Handler
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State v. Anthony Maurice Norman (A-50)
State v. Edward Lamont Duncan (A-64/65)
Argued January 21, 1997 -- Decided July 8, 1997
HANDLER, J., writing for a majority of the Court.
The central issue in these two cases is the extent to which the constitutional right to counsel requires representation by counsel who is conflict-free. Defendants allege that the relationship between their attorneys created a prejudicial conflict of interest that necessitates reversal of their murder convictions.
On February 18, 1989, Norris Holmes was shot dead near his home in Newark. The shooting resulted from what appears to have been a dispute between several drug dealers and their friends over turf and money. Holmes was not the target of the shooting. He was the unfortunate victim of defendants' dispute with one Robert Henderson.
Defendants were apparently involved in an altercation at another's apartment when Henderson and Holmes drove up in a car and honked the horn. When Duncan identified Henderson, with whom he had had a prior dispute, he instructed someone to go downstairs and send Henderson up. Duncan then instructed one Douglas Sherman to hand out guns. Sherman gave an Uzi to Norman and a Mach 10 to Duncan.
Henderson, with Holmes trailing, went upstairs. When they spotted Duncan holding a gun, they fled. Duncan and Norman pursued. After crashing through the glass-plated front door and running across the porch and down to the street, shots were fired, and Holmes was hit. Holmes was pronounced dead at a hospital later that morning from loss of blood.
Defendants were arrested and both gave statements. Duncan admitted that he had been at the apartment with a gun, but he claimed it was Norman who had chased and shot Holmes. He claimed that he followed Norman outside, but that Holmes had been shot by the time he made it to the street. Norman admitted that he and Duncan had given chase after Holmes and Henderson, and that he had been closer to Holmes and Henderson. He claimed, however, that both Duncan and he had fired their weapons.
Defendants were charged with purposeful-or-knowing murder, aggravated assault, and weapons offenses. Duncan or his family contacted an attorney, Richard Roberts, who had represented Duncan in a separate criminal matter. Roberts's unwritten fee arrangement with Duncan provided that his fee would be paid out of the $25,000 bail that Duncan's family had posted.
Duncan told Roberts that his codefendant, Norman, also needed an attorney. Roberts recommended Michael Pedicini, a friend who had served as an assistant prosecutor with him. At the time, Roberts and Pedicini shared office space but were not associated. They had separate secretaries, phones, trust accounts, and expense accounts. Pedicini did represent Norman. Roberts and Pedicini reached an agreement between themselves to split equally Duncan's $25,000 bail money.
The cases were severed for trial, with Norman's proceeding first. At issue in both trials was the identity of the shooter -- Norman or Duncan -- and the admissibility and reliability of statements. The State's theory in both cases was that defendants were guilty of murder as either principals or accomplices. The juries found defendants guilty of purposeful-or-knowing murder and other counts. They were not asked to specify, nor did they, whether it found defendants guilty as principals or accomplices. Defendants were sentenced to the minimum term of thirty years without the possibility of parole. Their convictions were affirmed on direct appeal. This Court denied their petitions for certification.
Defendants then filed petitions for post-conviction relief alleging, for the first time, a conflict of interest between their attorneys and error in the accomplice-liability charge. The trial court held hearings exploring the conflict claims. Defendants' attorneys, Roberts and Pedicini, testified that they were unaffiliated at the time of the trials, but that they formed a partnership shortly after Duncan's trial was completed. They also testified that Duncan and Norman were fully-informed of the fee arrangement and expressed no objections.
The trial court dismissed both of defendants' petitions. It credited the testimony of Roberts and Pedicini about not being associated at the time of their representation. It also found that defendants had not demonstrated any improper conduct on the part of the attorneys that might have infected their representation. The trial court rejected defendants' other claims.
One panel of the Appellate Division affirmed the dismissal of Norman's petition for post-conviction relief. It held that the findings of the trial court in respect of the representation of the attorneys and their separate practices were amply supported by the record. A different panel of the Appellate Division set aside Duncan's conviction, however, finding that Roberts and Pedicini had been partners or held themselves out as partners at the time of Duncan's trial. The Court granted the State's petition for certification regarding the Appellate Division's reversal of the denial of Duncan's petition for post-conviction relief; Duncan's cross-petition for certification relating to the accomplice-liability instructions; and Norman's petition for certification regarding the Appellate Division's affirmance of the denial of his petition for post-conviction relief.
HELD: There is no per se conflict in attorneys representing codefendants while in partnership negotiations. Norman's conviction, however, must be reversed because of the significant conflict and strong likelihood of prejudice arising from his attorney accepting payment of his fee from Norman's codefendant.
1. A per se conflict arises only if a private attorney, or any lawyer associated with that attorney, is involved in simultaneous dual representations of codefendants. There was substantial credible evidence here to support the trial court's Conclusion that Roberts and Pedicini had not been associated or become partners until after defendants' trials had concluded. Defendants urge the Court to expand the per se conflict rule to cover attorneys who contemplate the formation of a partnership but who have not consummated the partnership. The Court declines to do so, concluding that expanding the per se rule to every case where attorneys have discussed the possibility of associating would create an unworkable morass. (pp. 19-29)
2. Despite the absence of a per se conflict, defendants still may establish constitutionally deficient representation if they demonstrate a potential or actual conflict of interest as well as a great likelihood of prejudice. Duncan's claim about Roberts's failure to call a possible witness does not give rise to a likelihood of prejudice. Norman's claim about the unusual fee arrangement, however, does. There was an inherent risk in these circumstances of dividing the loyalty of Norman's attorney between Norman and his codefendant, who was paying the attorney's fee. (pp. 29-38)
3. Because the claim has not been raised previously, defendants must challenge the flawed jury instructions on accomplice liability under the ineffective-assistance-of-counsel standard. The Court finds that the instructions, although erroneous, did not thwart the fundamental guarantee of a fair trial. (pp. 38-41)
The Appellate Division's judgment granting Duncan's petition for post-conviction relief is REVERSED and the matter is REMANDED to that court to consider the remainder of his claims. The Appellate Division's judgment affirming the denial of Norman's petition for post-conviction relief is REVERSED, and the matter is REMANDED to the Law Division for further proceedings not inconsistent with this opinion.
JUSTICE STEIN has filed a separate opinion Concurring in the majority's reversal of the Appellate Division's judgment affirming the dismissal of Norman's petition for post-conviction relief, and Dissenting from its reversal of the Appellate Division's judgment granting Duncan's petition. In his view, the same factors and reasoning that the Court relied on in granting Norman's petition justify granting of Duncan's petition, as well.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI, and COLEMAN join in JUSTICE HANDLER's opinion. JUSTICE STEIN has filed a separate opinion Concurring in part and Dissenting in part.
The opinion of the Court was delivered by
This appeal arises from the separate Dispositions of individual applications for post-conviction relief brought by two defendants who participated together in a drug-related homicide, for which each, in a separate trial, was convicted of murder.
The central issue in these two cases is the constitutional right to the assistance of counsel and the extent to which that right requires representation by counsel who is conflict-free. Each defendant alleges that the relationship between their attorneys created a prejudicial conflict of interest that necessitates reversal of their murder convictions. The two attorneys involved in representing defendants shared office space, eventually became partners, and were paid their fees by one of the defendants. In addition, one defendant's attorney appeared at the other defendant's arraignment, and representation of one defendant on appeal continued after the actual formation of the partnership.
The Appellate Division, in separate decisions, was seemingly split on the resolution of those issues, granting post-conviction relief to one of the defendants, but not to the other. The Court now must determine whether the ties between the attorneys created conflicts of interest that warrant the application of a per se rule that imputes prejudice to the defendants as a matter of law and requires the reversal of the convictions, or, if not, whether such ties amounted to potential conflicts of interest that require an evaluation of the likelihood of prejudice that could require reversal of the convictions.
On February 18, 1989, Norris Holmes was shot dead near his home in Newark. The shooting resulted from what appears to have been a dispute between several drug dealers and their friends over turf and money. Holmes, however, was not the target of the shooting; instead, he was the unfortunate victim of defendants' dispute with Robert Henderson.
Holmes spent the early morning hours with Henderson, Clarence Moody, and his brother Caldwell Moody, in Newark, drinking beer, smoking marijuana, and sniffing cocaine. Before daybreak, the four of them were approached by Anthony Norman, one of the defendants in this case. Norman, who was a drug dealer in the area, instructed Henderson to get off the block, apparently because Norman believed that Henderson was selling drugs in his territory and possibly because Norman was angry about having been robbed previously by Henderson. Henderson and Holmes drove away, and Caldwell and Clarence went to their apartment at 71 Farley Avenue.
Norman, Douglas Sherman, and Edward Duncan, the other defendant in this case, *fn1 were already at the Moodys' apartment when Caldwell and Clarence arrived. Duncan, who was angry at Caldwell because Caldwell owed him money related to their drug dealing, assaulted Caldwell. While that argument was ongoing, Henderson and Holmes arrived outside the building and honked their car horn. Duncan, after identifying Henderson, instructed Caldwell to go downstairs and send Henderson up. Duncan apparently intended to ambush Henderson. As a part of that ambush, Duncan instructed Sherman to hand out guns; Sherman gave an Uzi to Norman and a Mach 10 to Duncan.
Henderson, with Holmes trailing, went upstairs, but when Henderson spotted Duncan holding a gun, the two fled. Norman and Duncan pursued. After crashing through the glass-plated front door and running across the porch and down to the street, shots were fired, and Holmes was hit. After he was struck and while lying on the ground, Holmes asked, "why did you shoot me?" Holmes was pronounced dead at a hospital later that morning. At trial, a forensic pathologist would testify that Holmes had died from a single gunshot wound to the abdomen that had caused internal hemorrhaging and blood loss. After the shooting, Norman and Duncan ran back upstairs, put the guns in Sherman's black bag, and fled to East Orange.
Duncan was eventually arrested and made a statement. In the statement, which was introduced at his trial but not at Norman's trial, Duncan admitted that he had been at the apartment with a gun, but he stated that it was Norman who had chased and shot Holmes. Duncan claimed that he had grabbed his Mach 10 and followed Holmes, Henderson, and Norman outside, but that Holmes had been shot by the time he made it to the street.
Upon his arrest, Norman also made a statement. Norman said that when Holmes and Henderson came upstairs, he was hiding behind the apartment door with a gun while Duncan was standing in front of the door with a gun. Norman admitted that he and Duncan had given chase when Holmes and Henderson had run, and he admitted that he had been closer to Holmes and Henderson. Norman claimed, however, that both Duncan and he had fired their guns.
Norman, Duncan, Sherman, and Caldwell were indicted for the purposeful-or-knowing murder of Holmes, in violation of N.J.S.A. 2C:11-3a(1) and/or (2); unlawful possession of firearms, in violation of N.J.S.A. 2C:39-5b; possession of firearms for an unlawful purpose, in violation of N.J.S.A. ...