On appeal from the Superior Court of New Jersey, Law Division, Camden County, 06-08-2922-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically June 1, 2007
Before Judges Cuff and Winkelstein.
On leave to appeal, defendant challenges the trial court's May 4, 2007 order disqualifying Wayne Powell, Esquire as his attorney in this case, in which defendant has been charged, along with two co-defendants, with the August 29, 2005 murder of Dewey Marshall. We affirm substantially for the reasons expressed by the trial judge in his oral decision on May 3, 2007.
The disqualification stems from Powell's prior representation of the victim for unrelated weapons offenses. Both Marshall and his mother were subsequently co-defendants in witness tampering charges that were related to the weapons offense charges against Marshall. The State's witnesses in the weapons offense charges included Dewey Marshall's girlfriend, Neidtikka Morris, as well as other family members. Represented by Powell, Marshall pleaded guilty to unlawful possession of a weapon, a handgun, on August 19, 2005, and was awaiting sentencing when he was killed. Powell entered his appearance on behalf of defendant in this case at a status conference on April 9, 2007. By that time, the proceedings against Marshall had been dismissed pursuant to the prosecutor's motion on September 20, 2005.
In ruling on the State's motion to disqualify Powell, the trial judge observed that Marshall had provided investigators with a statement in which he indicated that he was keeping the gun for his own protection because he had been receiving death threats. The court noted that Powell was involved in the plea negotiations, and the interests of Marshall were "clearly adverse to the interests of [Powell's] current client, defendant Manderville." While acknowledging that a defendant must have a fair opportunity to have counsel of his own choosing, citing to State ex rel. S.G., 175 N.J. 132 (2003), the court concluded that "there is still a very real and apparent conflict since there are allegations that defendant Manderville was involved in the planning and execution of the robbery of the victim, and defendant Manderville had a prior relationship with the victim."
In a criminal setting, it is incumbent on the court to ensure that a defendant receives conflict-free representation. Id. at 140. No dispute exists that Powell's duty of loyalty and confidentiality continued towards his former client, even though Marshall is now deceased. See id. at 140-41.
The facts of the offenses are interrelated. Defendant and the victim had a personal relationship. The victim had pleaded guilty to unlawful possession of a weapon that he claimed he possessed because of his fear of being murdered, which is exactly what happened. Under the circumstances, though there was no concurrent representation as there was in S.G., id. at 141, Powell's serial representation of the parties, given the close relationship of the victim and the accused, presents too many potential conflicts to be permitted. While Powell did not represent both Marshall and defendant at the same time, the confidentiality of his prior communications with Marshall could potentially be compromised during his representation of defendant. Cf. R.P.C. 1.6; R.P.C. 1.9.
The court in S.G., supra, 175 N.J. 132, reversed the Appellate Division's decision in State ex rel. S.G., 348 N.J. Super. 77 (App. Div. 2002). Judge Newman, dissenting in the latter case, made the following observation, which is equally true here:
I do not understand why an attorney would place himself or herself in a position of representing an accused charged with murdering that attorney's client. If an acquittal is obtained, there will be suspicions that the attorney traded on confidential information from the decedent, which may have assisted the accused. If there is a conviction, doubts will persist that the attorney's effort may have been affected by the prior relationship with the decedent. In colloquial terms, it is a "no win" situation. [Id. at 100 (Newman, J., dissenting).]
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