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State v. Green

July 9, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BERNARD GREEN AND RICHARD JENKINS, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, No. 06-10-1039.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 2, 2008

Before Judges Wefing, R. B. Coleman, and Lyons.

Defendants appeal from a trial court order disqualifying Robin Kay Lord, Esq., from representing defendant Richard Jenkins in Indictment 06-10-1039 and defendant Bernard Green in Indictments 06-02-0186, 06-03-0314, 06-03-0337, and 06-06-0675.

After reviewing the record in light of the contentions advanced on appeal, we reverse.

On June 20, 2005, Otis Jones was shot to death in Trenton, New Jersey, near a housing complex identified as Donnelly Homes. Richard Jenkins was identified as the shooter, and he was arrested on June 22, 2005. Upon his arrest, he retained Robin Kay Lord, Esq., to represent him. The State continued its investigation into this shooting, and the grand jury did not return an indictment in connection with this shooting until October 13, 2006, when it issued Indictment 06-10-1039. This indictment named Richard Jenkins and Bernard Green as co-defendants, charging both men with conspiracy (N.J.S.A. 2C:5-2); murder (N.J.S.A. 2C:11-3(a)(1) and 2C:2-6); possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a) and 2C:2-6); and unlawful possession of a weapon (N.J.S.A. 2C:39-5). Green retained Kelly Anderson Smith, Esq., to represent him in connection with this indictment.

In between the shooting death of Otis Jones and the indictment of Jenkins and Green for the killing, Green was indicted on four unrelated matters: Indictment 06-02-0186 charged Green with terroristic threats (N.J.S.A. 2C:12-3(a)), allegedly committed on May 14, 2005, and Indictment 06-03-0314 charged Green with attempted murder (N.J.S.A. 2C:11-3, 2C:5-1, 2C:2-6), allegedly committed on August 28, 2005. Indictment 06-03-0337 charged Green and Robert Kearse with possession of cocaine (N.J.S.A. 2C:35-10(a)(1) and 2C:2-6); possession of cocaine with intent to distribute (N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), 2C:2-6); possession of cocaine with intent to distribute within one thousand feet of school property (N.J.S.A. 2C:35-7.1, -5(a)(1), -5(b)(3), and 2C:2-6)*fn1 ; possession of cocaine with intent to distribute within five hundred feet of a public housing facility (N.J.S.A. 2C:35-7.1, -5(a)(1), -5(b)(3), 2C:2-6); possession of marijuana with intent to distribute (N.J.S.A. 2C:35-5(a)(1), -5(b)(12), 2C:2-6); possession of marijuana with intent to distribute within one thousand feet of school property (N.J.S.A. 2C:35-7, -5(a)(1), -5(b)(12), 2C:2-6); possession of marijuana with intent to distribute within five hundred feet of a public housing facility (N.J.S.A. 2C:35-7.1, -5(a)(1), -5(b)(12), 2C:2-6); and conspiracy (N.J.S.A. 2C:5-2). This indictment referred to conduct on June 22, 2005. Finally, Indictment 06-06-0675 charged Bernard Green with possession of heroin (N.J.S.A. 2C:35-10(a)(1), 2C:2-6); possession of heroin with intent to distribute (N.J.S.A. 2C:35-5(a)(1), -5(b)(3), 2C:2-6); possession of cocaine (N.J.S.A. 2C:35-10(a)(1), 2C:2- 6); possession of cocaine with intent to distribute (2C:35-5(a)(1), -5(b)(3), 2C:2-6); and maintaining a narcotics nuisance (N.J.S.A. 24:21-21(a)(6), 2C:2-6). This final indictment referred to conduct on May 12, 2005. All of these indictments were returned prior to the indictment charging Jenkins and Green with the killing of Jones and for each of them, Green retained Robin Kay Lord, Esq., to represent him.

The indictment with respect to the killing of Otis Jones was returned on October 13, 2006. On February 5, 2007, the State filed a motion seeking to disqualify Robin Kay Lord, Esq., from representing defendant Jenkins against these charges. According to the State, her representation of Green on separate, unrelated indictments posed an irremediable conflict of interest.

According to the record before us, the State developed its investigation into the shooting of Jones through certain conversations for which the State had obtained wiretaps. The State asserted that its investigation into the shooting of Jones revealed that Lishawn McRae, a friend of Jones, had borrowed a gold chain from him, and while wearing the chain in the vicinity of the Donnelly Homes, was robbed by members of the GKB (Gangster Killer Bloods) set of the Bloods gang. (This group is also referred to at various points as the G-Shine Bloods.)

Jones and McRae went to the neighborhood in which the robbery had occurred in an apparent attempt to recover the necklace but were unsuccessful. The State contends that Green and Jenkins are members of the GKB, that Green is a capo in the GKB gang and that he ordered Jenkins to shoot Jones because Jones was disrespectful to the GKB when he tried to retrieve the gold chain that had been stolen from McRae.

Prior to the hearing on the State's motion to disqualify Ms. Lord from representing Jenkins against the charges in connection with the death of Jones, both Jenkins and Green submitted signed certifications in which each waived whatever potential conflict of interest could exist as a result of her representation of Jenkins. Green's certification stated in pertinent part as follows:

1. I am the Defendant in the above-referenced matter and make this certification in opposition to the State's motion to have Robin Lord removed from representing Richard Jenkins in this matter.

2. Robin Lord represents me in unrelated matters in Mercer County and has for a period of time. I have complete confidence in her ...


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