June 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
AFRIM TAIRI, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-06-1503.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2008
Before Judges Stern, Sapp-Peterson and Messano.
By order dated April 4, 2008, the Supreme Court granted the State's motion for leave to appeal, summarily remanding this matter to us for consideration of the merits of the State's appeal from an order denying its motion to disqualify defense counsel, Adolph Galluccio, from further representation of defendant Afrim Tairi in this homicide prosecution. Having now considered the arguments raised in light of the motion record and applicable legal standards, we reverse.
The State alleges that during September and November 1995, defendant, along with Felix DeJesus and Edwin Torres, committed a series of violent crimes culminating in the November 8, 1995, murder of Howard Lewis during a home invasion robbery in Teaneck. The crimes remained unsolved for a time, and before defendant was charged, he fled the country and was not extradited back to New Jersey until sometime in 2006.
On November 13, 1996, the Bergen County grand jury returned Indictment #S-1570-96, charging DeJesus and Torres with various crimes that related to three criminal episodes, described by defense counsel during the motion proceedings as 1) a "home invasion" on September 16, 1995, that began on Staten Island and "culminated in Paterson"; 2) a "home invasion" on November 1, 1995, in Englewood; and 3) the November 8, 1995, "home invasion in Teaneck" that "resulted in the felony murder of  Lewis." DeJesus was also charged with the theft of Lewis's MasterCard credit card taken during the robbery. N.J.S.A. 2C:21-6(c). A third defendant, Dennis Rolon, was also indicted in a single count charging him with the unlawful use of Lewis's stolen credit card. N.J.S.A. 2C:21-6(h). Both DeJesus and Torres were convicted of all charges at separate trials in which Rolon testified against them as a State's witness. DeJesus was sentenced to an aggregate term of life plus sixty-five years with a fifty-eight year parole disqualifier; Torres was sentenced to an aggregate term of life plus sixty-nine years with a sixty-year parole disqualifier. We affirmed both convictions, remanding as to DeJesus for the entry of an amended judgment of conviction on the credit card theft charge, noting its required merger into the conviction for the first-degree robbery of Lewis. State v. Felix DeJesus and State v. Edwin Torres, A-5084-98 and A-5292-98 (App. Div. December 10, 2001).
During Torres's trial in November 1998, Rolon testified that he received Lewis's credit card from DeJesus on the day of the murder and, pursuant to DeJesus's direction, he used the card to purchase clothing at a store in Clifton. Rolon was eventually arrested on the credit card charge and retained Gallucio to represent him. He cooperated with the police, gave a statement implicating himself and DeJesus in the stolen credit card charges, agreed to wear a "wire," and met with DeJesus on several occasions in an attempt to gain incriminating evidence. Ultimately, Rolon pled guilty to the single charge in the indictment in return for a probationary sentence and agreed to testify truthfully at the trials of DeJesus and Torres. Rolon did so to "clear [his] name because [he] believe[d] that at the time [he] was very much a suspect in the murder of  Lewis."
At DeJesus's trial in January 1999, Rolon testified that DeJesus carefully instructed him to use the stolen credit card to purchase certain-sized pants and shoes at the store in Clifton, and to deliver them to the home of Alexander Cowan, someone known to both of them as "Father Nation." Rolon did so, and shortly after he brought the clothing to Father Nation's home, DeJesus arrived. Rolon claimed that DeJesus and Father Nation then had a private conversation that he could not hear, and he offered no further information during his testimony regarding the Lewis murder.
Rolon testified that after he was arrested, he "consulted with [his] attorney," and decided to cooperate with the police. When asked why he cooperated, Rolon answered, "I cooperated because I used a credit card. I was very much a suspect in the murder of  Lewis . . . . I didn't think about any leniency . . . other than me just trying to make sure that I wouldn't be accused of murdering  Lewis." Although he acknowledged that the police never threatened to charge him with the murder, Rolon reiterated that in his mind, he was "very much a suspect."
Rolon claimed that he found out about Lewis's murder the day after he used the credit card, and that he returned to the store to tell the salesman, Frankie Rivera, that the credit card "belonged to someone who was murdered," but that he, Rolon, was not involved in the homicide.
On June 9, 2000, a Bergen County grand jury returned Indictment #01-06-1503-I charging defendant with essentially all the crimes for which DeJesus and Torres were previously indicted. Defendant was arrested by Swiss authorities in 2006, subsequently extradited to Bergen County, and retained Galluccio as his attorney.
The State moved to disqualify defense counsel based upon his prior representation of Rolon, and on October 22, 2007, an initial hearing was held on the State's application. Galluccio first noted that the charges alleged in the indictment essentially arose out of three separate incidents and that there was "absolutely no" "potential conflict with the first two" incidents because the State never alleged Rolon was involved in those events and never charged him in connection with any of those crimes.
Galluccio only recalled Rolon's involvement in the credit card incident and his representation of him on the prior indictment after having read through the entire discovery in the case, suggesting therefore that Rolon was not a significant witness in defendant's future prosecution. Galluccio argued that defendant "want[ed] [him] to remain in the case" despite his prior representation of Rolon. Asserting that defendant did not know Rolon, and that, consistent with the State's position, Rolon "never met [defendant], never saw him, never spoke to him, [and] didn't even know he was involved in this case," Galluccio represented, "[w]e don't expect, . . . to point a finger that [Rolon] is in some way culpable" for Lewis's murder. Nonetheless, he acknowledged that "someone can always put a cloud over any type of situation, but . . . it's more imagined than real."
The prosecutor, however, argued that Galluccio still owed Rolon a "continuing duty . . . [t]o keep certain confidences" pursuant to the attorney-client privilege and that the State could never know "what  th[ose] attorney-client privileged statements" might be. The prosecutor further contended that there was "an appearance of impropriety" in allowing Galluccio "to cross-examine his prior client."
The prosecutor argued that Rolon was not a "small part of this case" because it was his use of the stolen credit card that focused attention upon DeJesus, in turn leading to the arrest of both he and Torres. He noted that Rolon was represented by Galluccio when he agreed to "get wired up on several occasions and have conversations with" DeJesus, and when he struck his plea bargain with the State.
Since the State always alleged that three people were involved in the various crimes, the prosecutor argued it was logical to believe that Rolon, who on the day of the murder possessed the victim's credit card, would be portrayed as the third participant. He noted that a "reviewing court" might have to eventually determine whether Galluccio, who did not intend to implicate Rolon in the murder, was providing "truly effective" assistance of counsel. The prosecutor argued, "[a]n attorney cannot ethically consent to limit his own cross-examination."
The judge concluded that "[i]n this particular case," Galluccio had not represented Rolon in "the same or even . . .
[a] substantially similar matter" as that in which he was representing defendant. He concluded there was "a very limited connection between  [Rolon's] involvement . . . and that of [defendant]." The judge further noted that acceptance of the State's argument would result in a "blanket bar [to] representation [by] an attorney who at one point or another had represented a witness in another case," contrary to precedent that required each application for disqualification to be evaluated on a "case-by-case basis." The judge denied the State's request.
The State moved for reconsideration and the parties appeared for further oral argument on December 3, 2007. The prosecutor argued that Galluccio's position was untenable in light of the Rules of Professional Conduct (RPC), specifically RPC 1.7 and 1.9, noting defense counsel had made a "powerful deal" for Rolon and "had him wear a wire three times" on behalf of the State. She noted that it was likely that Rolon would testify again at defendant's trial, and that the defense of "third-party guilt" was likely because "DeJesus was dead," "Mrs. Lewis was dead," "Father Nation is dead," and "[Rolon] has the credit card from the dead man." She observed, "Someone other than  Galluccio would make a very credible argument."*fn1
The judge again denied the State's request, noting it was "supposition" to claim that Galluccio's cross-examination of Rolon would be limited by the "chilling effect" of his prior representation. He determined that both RPC 1.7 and 1.9 were not violated because "there needs to be some adverse interest with respect to [Rolon]. Or some use of th[e] information" obtained during Galluccio's representation of Rolon. The judge noted, "I don't see that here," and therefore rejected any claim that Rolon needed to enter a waiver as to Galluccio's continued representation of defendant. The judge then voir dired defendant under oath, obtaining his voluntary and knowing waiver of any conflict of interest regarding Galluccio's continued representation. Finally, the judge entered the order under review that denied the State's motion for reconsideration of his earlier decision not to disqualify Galluccio from continued representation of defendant.*fn2
The State reiterates before us the arguments it raised before the motion judge; defendant counters by contending that the judge carefully considered the complex factual pattern involved and correctly determined that the likelihood of any conflict of interest was "a fanciful possibility" that did not require disqualification under any of the RPCs cited by the State.
We begin by recognizing some well-known principles that guide our consideration of the issues presented. While "[a]n accused is guaranteed the right to the assistance of counsel in a criminal proceeding," and "there is a constitutional presumption in favor of counsel of one's choice," a defendant has no "constitutional right to counsel of his choice." State v. Jimenez, 175 N.J. 475, 484 (2003)(citations omitted). He cannot, for example, "insist on representation by an attorney where there is an actual conflict of interest or an appearance of impropriety." Ibid.
Since "the trust between attorney and client has enhanced importance" in criminal matters, "special vigilance is required because an attorney's divided loyalty can undermine a defendant's Sixth Amendment right to effective assistance of counsel." State ex rel. S.G., 175 N.J. 132, 139 (2003). RPC 1.7 and RPC 1.9 in particular, "are designed to assure that, in representing a client, counsel's judgment is not impaired by divided loyalties or other entangling interests." Jiminez, supra, 175 N.J. at 484-85.
An additional counterbalance to a defendant's desire to be represented by the counsel of his choice is the court's "independent interest in assuring that conflict-free representation occurs, since the existence of conflict undermines the integrity of the court." S.G., supra, 175 N.J. at 140. This "broader societal interest [in] the integrity of the trial process itself," Jimenez, supra, 175 N.J. at 485, requires potential conflicts of interest to be adjudicated so as to prevent "future unjustified attacks over the fairness of the proceedings," or the potential "reversal of a conviction." State v. Davis, 366 N.J. Super. 30, 38 (App. Div. 2004).
The State contends that Galluccio's continued representation of defendant runs afoul of RPC 1.7, RPC 1.9, and the former RPC 1.7(c), the "appearance of impropriety" provision, which, as we acknowledged in Davis, supra, 366 N.J. Super. at 44, has continued vitality as a factor we must consider in determining whether an attorney's representation does disservice to the client or the public interest.
In relevant part, RPC 1.7 provides,
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer. (Emphasis added).
If such a conflict exists, however, the attorney may continue his representation if "each affected client gives informed consent, confirmed in writing, after full disclosure and consultation," and "the lawyer reasonably believes that [he] will be able to provide competent and diligent representation to each affected client[.]" RPC 1.7(b)(1) and (2). RPC 1.9(a), entitled "Duties to former clients," provides,
A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.
Former RPC 1.7(c) "provided in relevant part that, in certain cases in which no actual conflict existed, but 'an ordinary knowledgeable citizen acquainted with the facts' would conclude that the representation posed a 'substantial risk of disservice' to the public interest, that appearance of impropriety would provide an un-waivable bar to representation." Davis, supra, 366 N.J. Super. at 42-43 (quotation omitted).
In Jimenez, supra, the Supreme Court considered the interplay of these particular RPCs in the context of an attorney's representation of a defendant charged with capital murder, having earlier represented another person, Hughes, who was questioned by the police during the investigation of the homicide. 175 N.J. at 479-81. The attorney's representation of Hughes lasted only one day, during which time she negotiated a downgrade of the one indictable offense for which he was charged, and represented him during his guilty plea and immediate sentencing. Ibid. The Court noted,
The overriding issue in this case is whether [the attorney] is so impaired by her previous representation of Hughes that she will be unable to perform her adversarial role in representing defendant. That determination requires a consideration whether there is any reasonable prospect of asserting the defense of third-party guilt. [Id. at 486.]
The Court noted that "[t]he right to the defense of third-party guilt is of constitutional dimension." Ibid. (citing State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989)); see also Holmes v. South Carolina, 547 U.S. 319, 331, 126 S.Ct. 1727, 1735, 164 L.Ed. 2d 503, 513 (2006)(holding that state evidence rule excluding "third-party guilt" evidence based on the strength of the State's case violates a defendant's federal constitutional right "to present a complete defense").
Because neither the State nor the defendant intended to call Hughes to testify, the Court noted that the facts did not present a situation "in which defense counsel will have to cross-examine a former client or call to the stand a former client who may incriminate himself and exculpate the present client." Jimenez, supra, 175 N.J. at 489-90. However, if there was "a viable claim of third-party guilt," "an actual conflict and an appearance of impropriety" would be "triggered." Id. at 489. Ultimately, the Court concluded that the defense attorney's earlier representation of Hughes and her current representation of the defendant presented "no actual conflict of interest or appearance of impropriety." Id. at 493.
The facts presented herein are inapposite to those presented in Jimenez in several critical ways, and thus, in our opinion, require a different result. For example, the Jimenez Court never needed "to decide whether [defense counsel] represented [the] defendant and Hughes in substantially related matters because there [wa]s no reasonable basis to conclude that defendant's interests [we]re materially adverse to Hughes." Id. at 489. Such is not the case here because the State intends to call Rolon in defendant's prosecution, the obvious purpose of which is for Rolon to implicate DeJesus who in turn, through other witnesses, will be linked to defendant as a joint perpetrator of not only Lewis's murder, but of the other crimes charged in the indictment. The situation presents an even more compelling reason for disqualification than that presented in State v. Loyal, 164 N.J. 418 (2000), or State v. Catanoso, 222 N.J. Super. 641, 648 (Law Div. 1987), two cases the Jimenez court distinguished on this ground. 175 N.J. at 490.
In Loyal, defense counsel previously represented an important State's witness in an entirely unrelated matter. Finding, "that an appearance of impropriety existed where defendant's counsel previously had represented on drug charges a material recanting State's witness," the Court affirmed the disqualification of counsel. Loyal, supra, 164 N.J. at 440. In Cantanoso, the court found violations of RPC 1.7 and 1.9, and an appearance of impropriety, based upon defense counsel's prior representation of one of the State's witnesses during the grand jury investigation leading to defendant's indictment. The judge noted any "self-imposed limitation on [the defendant's] right to cross-examine [the witness]" violated the attorney's ethical obligations to both. Id. at 646-47. An appearance of impropriety was created in the eyes of the public because "the man who [defense counsel] once represented stands to be discredited, on cross-examination, by his former attorney." Id. at 648.
We disagree with the motion judge's conclusion that Galluccio has not represented Rolon in "the same or substantially similar matter" as defendant. RPC 1.9. Rolon was a co-defendant of DeJesus and Torres and his cooperative testimony was significant in convicting both of them. But for having fled the country, in all likelihood defendant would have been charged along with DeJesus and Torres in the same indictment, and was, in fact, ultimately charged with virtually the same crimes. Rolon's testimony in this case will be clearly adverse to defendant, just as it was to DeJesus and Torres.
The Jimenez court also concluded that on the facts presented, "there [wa]s no reasonable basis to assert the [third-party guilt] defense." Jimenez, supra, 175 N.J. at 494. Although the motion judge concluded it was unlikely that any defense counsel could reasonably argue that Rolon was culpable in Lewis's murder, we do not reach the same conclusion. Under the facts of this case, the specter of "third-party guilt" only provides a further basis to disqualify Galluccio.
First, as the State noted, Rolon possessed Lewis's credit card on the day of his murder. Although Rolon testified fully regarding the circumstances by which he came into possession of it, the other two parties who could provide any corroboration of that story, DeJesus and Father Nation, are both dead. Furthermore, we gather from some of Rolon's trial testimony that the police interviewed Rivera, the store clerk who sold Rolon the merchandise and to whom he returned the next day to deny any involvement in Lewis's murder. Although DeJesus's attorney was unsuccessful in cross-examining Rolon as to the substance of that statement, the State acknowledged during a sidebar conference at trial that the clerk's statement about Rolon's visit and what he told him was "inconsistent" with Rolon's trial testimony. In short, it would appear that there is fertile ground to hoe regarding Rolon's version of the events surrounding the credit card.
Second, the prosecution of defendant will proceed in a qualitatively different fashion than did that of either DeJesus or Torres, both of whom gave extensive statements to the police detailing their involvement in the crimes. Therefore, at those trials, any attempt to implicate Rolon as someone more significantly involved in the crimes would have been difficult since neither DeJesus nor Torres did so in their statements, instead, implicating defendant as the leader of the operation. Defendant apparently never made any incriminating statements to the authorities.
We need not divine the exact contours of how the State will proceed in its prosecution of defendant. However, DeJesus is dead and cannot testify; Torres is still incarcerated, and, while he may be called as a witness against defendant, we note that he challenged the admissibility of his statement at his trial on the grounds of "diminished capacity," and there is nothing in the record that demonstrates he would be inclined to cooperate at this time. As we noted above, Lillian Lewis, apparently the only other person who ever identified defendant as being at the murder scene, is dead.
"[T]he third party evidence need not show substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt." Koedatich, supra, 112 N.J. at 299. In short, the link between Rolon and DeJesus that can be established through other witnesses may become even more critical to the case against defendant than it was in the other trials, and, hence, perhaps more susceptible to the necessary cross-examination that invokes a "third-party guilt" defense. Therefore, the appearance of impropriety cause by permitting Galluccio to represent defendant, and at the same time cross-examine his former client, has a "reasonable basis" in the evidence and is "something more than a fanciful possibility." Loyal, supra, 164 N.J. at 429 (citations omitted).
Under the unusual factual complex of this case, we need not distinguish between RPC 1.7 or 1.9 as the basis for disqualification, i.e., whether the conflict is "concurrent," or whether Rolon is a "former client" of Galluccio, because the result is the same in either case. Rolon's plea bargain, which Galluccio struck for him with the State, required his truthful testimony at trial. We must assume that obligation continues, and, while the record is unclear whether Rolon remains on probation, or whether he could be prosecuted for any of the substantive offenses in the indictment if, for example, he inculpated himself through his testimony, we assume he remains potentially, criminally liable if he did not testify in a truthful manner at defendant's trial. That testimony, if similar to that already given in Torres's and DeJesus's trials, will ultimately implicate defendant in Lewis's murder and the other crimes charged in the indictment. For the reasons discussed above, Galluccio's continued representation of defendant under these circumstances violates RPC 1.7(a)(2) because "there is a significant risk" that his duty to defendant "will be materially limited" by his "responsibilities to another client [or] a former client," Rolon.
We also believe a conflict of interest exists if the facts are viewed solely through the prism of RPC 1.9(a). As we have noted, Galluccio represented Rolon in "the same or a substantially related matter" as he now does defendant. The interests of his current client are "materially adverse to the interests of the former client," Rolon, because the testimony his former client will offer is critical to the prosecution of defendant, even though it may not directly inculpate him.
Any attempt to remove these conflicts by securing waivers by defendant, which the motion judge did, and by Rolon would not cure the problem because an appearance of impropriety exists that undermines the public's interest in "the integrity of the trial process itself." Jimenez, supra, 175 N.J. at 485. Despite his best intentions, Galluccio's cross-examination of Rolon will always leave a doubt in the average person's mind whether he tread softly because Rolon was his former client or because of legitimate strategic reasons; similarly, from defendant's perspective, a question will always remain whether aggressive cross-examination could have raised a reasonable doubt of defendant's guilt by imputing culpability to Rolon. Koedatich, supra, 112 N.J. at 299. Any waivers that have been or might be secured in this context are "immaterial." S.G., supra, 175 N.J. at 143 (citing Loyal, supra, 164 N.J. at 433); Davis, supra, 366 N.J. Super. at 42-43.
We hasten to add that we have considered the issues presented pre-trial, and in doing so have accepted in good faith the State's representation that Rolon will be called as a witness at defendant's trial. As the above discussion discloses, that representation has been critical to our analysis. In the event of a conviction defendant may always raise a Sixth Amendment claim based on the record made.
Reversed and remanded to the motion judge for the entry of an order disqualifying Galluccio from further representation of defendant in this matter. We do not retain jurisdiction.