On appeal from Superior Court of New Jersey, Law Division, Union County, No. 05-05-00561-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2008
Before Judges Wefing, R. B. Coleman, and Lyons.
Defendant was indicted for kidnapping, N.J.S.A. 2C:13-1(b); aggravated sexual assault, N.J.S.A. 2C:14-2(a); murder, N.J.S.A. 2C:11-3(a)(1),(2); and felony murder, N.J.S.A. 2C:11-3(a)(3), all crimes of the first degree. The grand jury returned supplemental findings under N.J.S.A. 2C:11-3(c)(4)(f) and N.J.S.A. 2C:11-3(c)(4)(g), making the prosecution a capital case under the then-existing law. Defendant filed several pre-trial motions, including a motion to suppress physical evidence that had been obtained during a search of defendant's residence. Defendant moved to disqualify the State's lead attorney from prosecuting the case on the basis that the attorney had been present and had spoken to defendant during that search and thus could be a witness at trial. After hearing argument, the trial court granted defendant's motion to the extent of barring that assistant prosecutor from participating in the pending motion to suppress. We granted the State's motion for leave to appeal from that order. After reviewing the record in light of the contentions advanced on appeal, we reverse that order and remand the matter for further proceedings.
The fact that the assistant prosecutor and defendant had engaged in some communication was noted on the record during a hearing preliminary to defendant's suppression motion. On hearing that, the trial court queried whether the fact of that exchange would mean that the attorney would be called as a witness. Defendant then filed his motion, which led to the order on appeal.
The record in the matter is brief. We consider the issue in the following factual context, taken from the proffer made to the court by the assistant prosecutor after the trial court had made its ruling.
The assistant prosecutor was summoned by the police when a woman's body was discovered in an industrial park in Linden. When he arrived at the scene, a number of law enforcement personnel from several different agencies were present, including the Linden Police Department, the Union County Sheriff's Department, and the Union County Prosecutor's Office. The attorney's purpose in being there was to determine that no search warrants were needed as the process of evidence collection proceeded. He did not participate in the collection of evidence or speak to anyone apart from law enforcement personnel.
Investigation revealed that defendant had spoken to the victim by telephone, and the police wanted to speak to defendant about that conversation. Later that evening, the assistant prosecutor received a telephone call informing him that defendant had been located and that he was willing to go to the police department to give a statement. The assistant prosecutor did not go down to the police station but advised the sergeant that if he were going to ask defendant for permission to search his house that he should be sure to obtain a written consent.
During the middle of the night, the assistant prosecutor received another telephone call from a detective who was at defendant's home, conducting a search pursuant to defendant's written consent. The detective asked who should be responsible for taking and cataloguing evidence: the detectives on the scene or the sheriff's identification unit. The assistant prosecutor responded that it should be the identification unit; he also said he was coming to the scene. When he arrived, there were again a number of law enforcement personnel from different agencies present at the scene, as was defendant. The assistant prosecutor thanked defendant for his cooperation, and defendant responded that he understood it was an important case. The assistant prosecutor was never alone with defendant, had no further conversation with him and was not involved in the process of collecting evidence.
As the trial court noted in its oral opinion, the matter is governed by 3.7(a) of the Rules of Professional Conduct, which states in pertinent part:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services ...