September 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL SILIGATO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-02-0028 and 05-08-00134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2009
Before Judges Stern, Lyons and Espinosa.
Defendant was convicted of attempted theft by deception and conspiracy to commit theft by deception, as alleged in counts two and three of one indictment, and of two counts of witness tampering as embodied in a second indictment. He received concurrent five-year terms on the theft indictment and two consecutive terms on the witness tampering indictment, to be served consecutively to the sentence on the theft indictment. The aggregate sentence was eleven years.
On this appeal, defendant argues that "because the prosecution failed to offer any evidence as to the fair market value of the property involved in counts two and three of the theft indictment," his motion for judgment of acquittal on those counts should have been granted; a new trial is required because defendant's trial attorney or his firm "represented three important adverse trial witnesses" and because "the trial court erred by allowing the prosecution to introduce negative character and reputation evidence as to appellant"; and that the sentences were excessive both in terms of their lengths and their consecutive features.
Defendant was acquitted of the theft count involving the First Trenton Insurance Company (count one of the theft indictment relating to a claim for coverage of his commercial building), but convicted of count two involving an attempted theft by deception from Farmers Mutual Insurance Company (his homeowner's carrier which covered personal items) and a conspiracy to commit theft (counts two and three of the theft indictment). On each count the jury found that "the amount of money or value of property involved" was "$75,000 or more."
Defendant was also found to have attempted "to induce or otherwise cause Gary Dixon, Sr., to testify falsely," but that he did not "employ the threat of force" when doing so, thus resulting in a conviction of a lesser-included third-degree crime. Finally, the jury found that defendant attempted "to induce or otherwise cause William Dixon to testify or inform falsely" or "to withhold testimony in a grand jury investigation." The dates involved in these witness tampering counts were different. Defendant was acquitted on two counts of witness tampering and another was dismissed. Significantly, the tampering convictions dealt with Gary Dixon, Sr. and William (Willy) Dixon, clients, or former clients, of defense counsel; the acquittals did not. We remand for further proceedings.
The charges arose from defendant's attempt to collect insurance proceeds on a commercial building he had owned for many years that burned in a fire in 1998. Defendant submitted claims to the building's insurer, First Trenton, for the structure and some of the building's contents, and to the insurer for his homeowner's policy, Farmers Mutual, for items that he claimed were personal property, which included vending machines, pool tables, and restaurant equipment. The building's insurer paid him the limits of its policy, but defendant rejected the settlement offer for the contents made under his homeowner's policy.
The State charged him with theft, attempted theft and conspiracy, alleging that defendant was entitled to none of the proceeds because he had burned down the building, and because his homeowner's claim included many items that were not in the building at the time of the fire. Shortly after trial commenced on those charges, a mistrial was declared, and the State obtained additional indictments against defendant for tampering with witnesses who testified in pretrial hearings.*fn1
At the second trial, as already noted, defendant was acquitted of theft by deception for his claim against the building's insurer, but he was convicted of attempted theft based on the claim he asserted for the building's contents against his homeowner's policy. He was acquitted of three counts of witness tampering, but convicted on two.
On September 29, 1998, at approximately 8 p.m., a commercial building at 801 White Horse Pike in Winslow Township, Camden County, became engulfed in flames. Defendant had owned the building since 1983. At one time it had housed a liquor store and a deli, and it had two offices and three apartments. At the time of the fire, the building was vacant and its utilities turned off, although one apartment was still being emptied by defendant's son who had moved out a couple of months earlier. In light of our disposition, we need not detail the evidence concerning the suspicion of arson, the investigation or the claims submitted. We develop only the facts necessary to understand our disposition.
On October 7, 1998, defendant retained Marc Rossi to represent him as a public adjuster. On October 13, 1998, Rossi submitted to First Trenton an invoice from ARMD Construction Company in the amount of $42,000 for demolition services. Rossi also submitted to First Trenton an estimate of $775,000 for the value of the building, and an itemized invoice for contents totaling $160,600.
First Trenton's adjuster for the building structure estimated that the total cost of the demolition should have been $20,000 to $25,000. He concluded that the replacement cost for the building was $359,600, based on his review of the debris, drawings, and the square footage.
On January 16, 1999, Rossi offered on defendant's behalf to settle the claim for the First Trenton policy's maximum limits for the building and its contents, and two claims for loss of rent at $8100 and $6750 each.
On February 23 and 24, 1999, First Trenton paid defendant the limits of the policy for the building and its contents. Although unable to verify defendant's contents list, First Trenton's adjuster said that First Trenton decided it "would take the insured at his word for customer relations and pay the $15,000" contents limit, "as a building normally has contents within it." It also paid the $165,000 policy limit for the building. It refused to pay the claims for loss of use because defendant had provided no documentation that the premises were rented at the time of the fire.
In addition to the First Trenton policy, defendant also had a policy with Farmers Mutual for his dwelling and personal property located in Hammonton. The Farmers Mutual policy had a replacement cost provision for personal property at a limit of $271,600, with a limit of ten percent of that amount, or $27,160, for personal property located away from the Hammonton premises.
The Farmers Mutual policy also had a separate liability limit of $3000 for "business personal property," which was "property used or procured for use in business." The business personal property provision had a limit of fifteen percent of $3000, or $450, for business personal property located away from the residence. Farmers Mutual adjuster Paul Kosherzenko testified that "the total possible limit" for property at 801 White Horse Pike under the Farmers Mutual policy "would be either $27,160 of his personal property or $450 if it was business property outside the home."
On October 6, 1998, defendant filed a claim under the Farmers Mutual policy listing over $206,000 worth of property at 801 White Horse Pike. In support thereof, on November 6, 1998, Rossi submitted to the adjuster a "contents claim form." Using the claim form provided by Rossi, Kosherzenko determined which items on the list constituted business personal property and which items were personal property. He then prepared a statement of loss based on his calculations of the replacement cost, depreciation amount and actual cash value for the personal property. Kosherzenko explained that defendant's policy was "a replacement cost policy," but that at the time of loss the policy paid only the actual cash value of the item after depreciation. However, Farmers Mutual would pay the policyholder difference between the withheld depreciation and the actual replacement cost, if and when the person actually spent the money to replace the item.
Kosherzenko concluded that the replacement cost for the personal property located at 801 White Horse Pike was $9050, less depreciation of $1387, which yielded an "actual cash value loss" of $7663. He did the same for the business personal property and added the amount of the $450 limit (fifteen percent of $3000) to the total after applying the policy's limits. Kosherzenko waived the deductible. He calculated that the liability under the Farmers Mutual policy was $8113 for the actual cash value of the claimed items after the policy limits were applied.
On March 18, 1999, Kosherzenko sent Rossi a proposed offer to settle the claim for $8113. By fax the same day, Rossi rejected the offer, including a letter to that effect sent to him by defendant. Through letters and telephone conversations over the next couple of months, Kosherzenko related the insurer's position and defendant repeatedly rejected the offer. Rossi said defendant was "[h]ighly upset" at the offer from Farmers Mutual.
In a letter dated June 17, 1999, Louis Barbone, who became defendant's trial attorney after the first indictment was returned, requested that Kosherzenko provide the calculations that resulted in the offer. On July 7, 1999, Kosherzenko sent defendant's attorney copies of the policy and he explained his calculations in a telephone conversation.
On September 29, 1999, Farmers Mutual sent defendant a check for $8113, but defendant returned the check and initiated a lawsuit for the claim. Ultimately, defendant recovered $11,600 in the lawsuit, and we affirmed the verdict in that amount. Siligato v. Farmers Mut. Fire Ins. Co., No. A-2343-02T3 (App. Div. Feb. 17, 2004).
Through Rossi as his adjuster, defendant's son, David Siligato, also submitted a claim for loss of personal property at 801 White Horse Pike to his insurance company, Selective Insurance Company of America. On June 30, 1999, Selective paid $17,362.22 on David's policy. The check was issued to defendant. No issue is before us based on this claim or the civil verdict.
In August 1999, the State Office of the Insurance Fraud Prosecutor began to investigate Rossi for arson and insurance fraud in the Mercer County area. On January 28, 2000, the State seized Rossi's claim files. As a result of that investigation and information from one of Rossi's co-defendants, who alerted investigators to claims "he believed were suspicious," investigators examined Rossi's file regarding defendant's claims and requested defendant's claim files from his insurance carriers.
Rossi was eventually indicted, and was offered a plea agreement in exchange for a recommended custodial sentence and his cooperation. As a result, on September 24, 2003, he provided a signed statement regarding his activities. No part of the indictment against Rossi was based on any conduct with defendant or the property at 801 White Horse Pike. However, Rossi told prosecutors that defendant's claim "was a fraudulent claim" and that defendant admitted to Rossi that he "set the fire." Rossi testified, "[H]e felt comfortable with me because he said he had me checked out." When asked if he knew "what [defendant] meant by that," Rossi testified, "I believe he meant... that he knew that I didn't question fraud. I was involved in it myself and I didn't care what he submitted." After he was indicted, Rossi was unsuccessful in enticing defendant to repeat his admission on tape.
Gary Dixon, Sr. (Gary) knew defendant, having seen him "on and off" in the Hammonton area where they both lived for many years, but they had never socialized with each other prior to May 2005. Gary also knew defendant's children and stepchildren.
In October 1998, shortly after the fire at defendant's building, a group of kids had bragged to Gary that they were setting fires in abandoned houses. Gary relayed this information to Jimmy Davis, then a detective in the Mullica Police Department, and arrests were made.
In May 2005, seven years after the fire at defendant's building and over a year after defendant was indicted, defendant asked Gary to go out to dinner. Defendant had never invited Gary to dinner before, and Gary "was a little worr[ied]." Gary said he was too busy.
On May 10, 2005, defendant came to Gary's gas station. Gary said he "was a little nervous" when he saw defendant pull up. Defendant asked Gary if he would contact Davis, who was now the police chief in Mullica Township, to permit Davis to reveal to a private investigator that Gary had been the informant in the 1998 fires. Gary had no idea why defendant wanted him to do this. He testified:
[Defendant] told me if I would do this for him, that he would take care of my family and he would take care of me and that I wouldn't have anything to worry about, that my kids would be fine. He knew I was trying to put my kids through school and trying to pay Mr. Barbone's office for legal fees and he told me he would take care of that and make sure my kids were all right. Everybody would be safe and this is why I said yeah. I figured, okay, if you can do this, sure, you know, and I told him no problem. I figure it would help out Mr. McCusker and it wouldn't be any problem with it.
Louis Barbone was defendant's attorney for the criminal charges, and had also acted as defendant's attorney in his lawsuit for the insurance claim against Farmers Mutual. Jim McCusker was a private investigator who worked for Barbone.
Gary further testified that "five minutes" after he agreed to defendant's request, Davis called him "and said you're authorizing me to give the okay to let your name be known to Jim McCusker as the informant and I said yes."
McCusker had been waiting in defendant's car while defendant spoke with Gary. Defendant then put his arm around Gary and walked him around the side of the building. Defendant wanted Gary to give a statement to McCusker that two other "kids came to me the same time [in 1998] that these other kids came to me with the fire, which they didn't." He wanted Gary to tell McCusker that the two kids, Steven Nielson and Chris Walizer, said
[t]hat they were in his deli. They were partying and they got drunk or whatever and that they kicked over a kerosene heater. He said to make sure that they kick [sic] over a kerosene heater and that either Chris kicked over the kerosene heater or Steve kicked over the kerosene heater, one or the other. He told me to make sure that I said, I'm not sure who said it, and make sure I remember to say that they said it's a deli, not a hotel you asshole.
Defendant "strongly" and "forcefully" told Gary that "the reason why" Gary had to say it was "a deli and not a hotel" was that "there's rooms attached to this deli and people are saying it's a hotel instead of a deli." Defendant also wanted Gary to say that Nielson and Walizer were on drugs at the time, and that they stole video games when they set the fires, which they brought with tools on the back of their truck to try and sell to Gary.
Gary knew Nielson and his brother, but had never heard of Walizer. He knew that Nielson did not have a license or a truck, and that neither the Neilsons nor Walizer had been part of the group that Gary knew had started the Mullica fires.
But Gary said he "went along with it," because he believed if he "told that story to this investigator, that would be the end and it would go away." Gary provided McCusker with a recorded statement that day at his gas station. Gary said that while giving the statement
[d]efendant was still standing in there and he was whispering saying, make sure you say Steve. Make sure you say Chris Walizer and make sure you say heater. Couch and heater and the whole time he's doing this, he's going behind McCusker with his fist clenched like this, walking back and forth like this and finally the investigator asked, would he leave and he had walked out and we went on with the conversation.
When McCusker returned to the truck, defendant came up to Gary, put his arm around Gary, squeezed his shoulder, handed him twenty dollars and said "good job."
Gary knew that Nielson had died several years before, but he was unaware that in September 1998, at the time of the White Horse Pike fires, Nielson was incarcerated and that Walizer did not live in the area.
After Gary provided the statement, defendant called Gary repeatedly and stopped by the garage to ask Gary and his girlfriend, Angela Franks, to go to dinner with defendant and his wife. Defendant told Gary that "he gets nervous if I don't return his calls or if he can't get in touch with me."
Gary and his girlfriend eventually agreed to go to dinner. While they were sitting in a diner, defendant told Gary to "get up" and "take a walk" with him outside. Gary then began "getting a little more scared." Defendant told Gary that he did a "good job" with McCusker and told him to get into defendant's truck. Inside the truck, defendant gave Gary a copy of his statement to McCusker and began "going over it again." Defendant told Gary that Gary would have to review the statement with defendant's lawyer. Defendant reviewed the names and several details, and Gary made handwritten notes of "key words" that defendant wanted him to say. Gary told defendant he would not appear in court, and defendant assured him that was not necessary.
In the days after that dinner, defendant came to the garage and called Gary repeatedly, but Gary avoided him. On May 17, 2005, defendant's wife called and told Gary that he needed to call defendant "right away." Gary and defendant spoke, and defendant told him "[w]e got to meet in... Atlantic County Park in Mays Landing" and had "to meet" defendant's attorney in the park. Gary went to the park with Franks. Defendant again reviewed what he wanted Gary to tell his lawyer. Defendant's lawyer, Barbone, ultimately appeared, and Gary learned he would have to testify in court immediately thereafter.
Although Gary had received no subpoena, that same day he and Franks went with defendant and his attorney to court, and Gary testified on defendant's behalf as a potential witness.
Gary testified "what the Defendant told [him] to say" in accordance with the statement that he had provided to McCusker. When confronted on cross-examination with Neilson's jail records and threatened with perjury, Gary denied that he was lying. Gary said he "didn't want to be charged with perjury," and unsuccessfully tried to get the attention of the investigators who were in the courtroom "without the Defendant knowing it because [he was] scared of the Defendant." When they left the courtroom, defendant walked beside him "and he [said] you F'ed up."
Gary was able to provide his business card and telephone number to Stemmer (the State's investigator) and asked Stemmer to call him. As Gary left in his car, defendant called on his cellphone and said "get the F out of here right now."
After Gary testified, defendant contacted him several times telling Gary that defendant "wouldn't let [him] get charged with perjury," and remarking that defendant would "take care of" and "protect" Dixon's family. Gary interpreted these comments to mean that defendant "was letting me know if I didn't stick to the story that... something... could happen to my family." Defendant also tried to give Gary twenty dollars, which Gary refused.
On May 22, 2005, defendant showed up at Gary's garage and asked Gary to plug a tire. Over Gary's objection, defendant insisted on stuffing money into Gary's shirt pocket. When Gary removed the money later that day, he discovered three one-dollar bills with what appeared to be bloodstains on them. Gary's brother, Willy, said Gary showed him the bloodstained money in May 2005, appearing "a little scared," "shooken up" and "very nervous and... worried." The stain on one of the bills later tested positive for blood.
On May 25, 2005, Gary was arrested. After Gary's arrest, defendant came to Gary's garage and wanted to talk to Franks alone. Defendant told Franks to call her landlord, the gas station owner, Bob Crescenzo, and ask for the bail money, because he was a "good friend" of defendant's, and to tell him that defendant would "be right down there to pay him right back." Franks refused, and defendant "got mad" and left.
Gary was released on his own recognizance. Gary began to move his family around to "hide out" because he "was afraid of what could happen if it got out that [he] told the truth about me lying in Court." He eventually moved back into his house, but was unable to find work, and he existed on odd jobs.
Shortly after his arrest Gary found that the locks had been changed on the gas station by Crescenzo. Gary testified that he knew of no reason for that because his accounts with Crescenzo were paid "two months ahead." Gary's brother, Willy, said he had taken $4000 or $5000 to Crescenzo's oil company Memorial Day weekend in 2005. He was told by the people in the office that he "didn't need a receipt, they trust Gary."
But Crescenzo testified that he shut down Gary's garage on June 1 or 2, 2005, because Gary had failed to turn in any receipts, five of his checks for daily receipts had been returned for insufficient funds, and he was unable to locate Gary or Franks. He said that Gary owed him approximately $28,000 for the withheld receipts. He acknowledged that defendant had visited him several days earlier.
Willy knew defendant's stepdaughter, Kelly. In a conversation with her in July 2005, Willy said "some negative things" about his brother that Willy later repeated to defendant's investigator. On July 30, 2005, Willy provided a statement to defendant's investigator, Diane Cowan, alleging that his brother was "railroading" defendant.
Afterwards, defendant thanked him, invited him to dinner, and offered to pay Willy's electric bill because defendant "was thankful for what I had done with the statement." Willy ultimately accepted the offer. In addition, a man romantically involved with defendant's stepdaughter repaired Willy's truck at no charge.
On August 22, 2005, in response to a subpoena from the State Grand Jury, Willy testified and "stretched" the negative things he had said about Gary. After Willy testified at the grand jury, he called defendant and told defendant that he had repeated the negative things he had told to defendant's investigator. Defendant invited Willy and his family to dinner at a diner, where defendant offered for the family to come stay in defendant's home. Defendant offered Willy the name of an attorney and gave him $15, and he wanted Willy to advise him if Willy received any future grand jury subpoenas.
Defendant told Willy "he didn't want me going to grand jury without an attorney." When Willy told defendant he had no money for an attorney, defendant told him, "Don't worry about it. He'll take care of it."*fn2 Defendant told Willy that "the State was going nowhere with this, he had them by the balls, was his exact words."
Willy called Stemmer, and they arranged for Willy to wear a wire for his next meeting with defendant at a diner. At the meeting, defendant gave Willy $200, placing the money underneath a napkin because "he didn't want anyone seeing him giving me money." The recording of that meeting was played for the jury.
On another date, defendant instructed Willy to tell the grand jury that Gary and his wife had "had a big argument" and that Franks had approached Willy and told him that "every that Gary said about... the defendant, was a lie." That, however, had never happened.
On September 13, 2005, defendant came to Willy's house, and when Willy told defendant he was "struggling right now," defendant asked for his children's clothing sizes. Defendant and his wife "went out and got them clothes." Defendant told Willy not to worry because he was "a hero." Willy also told defendant that Gary wanted "to make peace" with defendant and "let bygones be bygones." Defendant asked Willy to "try to get Gary to write out a statement saying that the... Attorney General's office made him lie and stuff like that." Defendant offered to help Willy obtain his commercial driver's license and a job with defendant's company driving dump trucks.
Willy later told defendant that Gary had agreed to provide a statement, and they went to meet Gary, although Willy knew he would not be coming. Defendant told Willy to call defendant's home and leave a message on his answering machine that Gary was willing to give a statement.
On September 22, 2005, defendant walked into Willy's house without knocking, "very upset," because he had been indicted for witness tampering for his contact with Willy. Afterwards, defendant came to Willy's house again and, during a car ride, told Willy he had a tape of Willy selling percocets and that he had seen Franks smoking marijuana. Thereafter, defendant drove by Willy's house twelve or fifteen times, honking his horn or beckoning Willy over to the car. But Willy had no further contact with defendant.
We need not develop the facts regarding the other witnesses who were subjects of the witness tampering counts or the testimony by which Walizer was exonerated.
Among other things, defendant argues that he is entitled to reversal of his conviction because his constitutional right to conflict-free representation was violated. The argument is premised on the fact that his trial attorney, Louis Barbone, also represented Gary, Franks, Willy and Gary Dixon, Jr. (Junior).
The State argues that no actual conflict existed, and, if it did, defendant is unable to demonstrate that he suffered any actual prejudice. The State also contends that the prohibition against the "appearance of impropriety" is inapplicable here, because it was eliminated as a standard for determining attorney conflict by the deletion of that language from RPC 1.7.
Throughout the proceedings, including the previous aborted trial, and during the events that comprised the basis for the witness tampering and the theft charges, defendant was represented by Barbone. Defendant was indicted on February 17, 2004, on the theft-related charges. On March 15, 2004, Barbone entered his appearance on behalf of Gary, Franks, and Junior in Mullica Township Municipal Court for disorderly persons charges pending against them. Barbone's associate, Erika Appenzeller, also appeared on behalf of Junior in Superior Court on an indictment that arose from the same factual circumstances that comprised the basis for the municipal charges.*fn3 Barbone certified on a motion to compel any disqualification application in this matter, on August 12, 2005, that while he had believed the municipal charges against Gary and Franks had been administratively dismissed on July 12, 2004, in that fact he was incorrect, as the charges had merely been inactivated pending disposition of the related indictable charges against Junior.
Defendant's trial on the theft indictment had begun on May 15, 2005. On May 25, 2005, Gary was arrested for perjury after the mistrial was declared. In a voir dire outside the jury's presence, Franks later testified that, upon Gary's arrest, she "called his attorney," whom she identified as Barbone.*fn4 She told Barbone, "[Y]our client was just arrested on perjury charges. What are you going to do?"
On May 27, 2005, Junior was sentenced on the indictable offense, while represented by a member of Barbone's firm. Upon Junior's sentencing, the municipal charges against Gary and Franks were "reactivated." They were represented at this time by Barbone's associate, Appenzeller.
On May 31, 2005, after Gary's arrest, the prosecutor in defendant's case wrote to Barbone that it was his "understanding that your firm represents both Gary Dixon Jr., and Gary Dixon Sr., in a criminal matter." The prosecutor said that the circumstance "certainly raises a conflict of interest or an appearance of a conflict," and that he intended "to bring this to the court's attention at the next court appearance."
In a June 14, 2005 letter, Barbone told the prosecutor that his representation of Gary and Franks had "terminated when charges filed against him in the Mullica Township Municipal Court were dismissed on July 12, 2004." Barbone said that a tort claims notice had been filed on Gary's behalf in connection with the criminal charges, but Barbone claimed that "that matter [was] resolved" when Junior was indicted. However, Barbone also said that he did not believe that Gary had a basis to pursue a civil action and "frankly" Barbone did not know whether Gary "desire[d] to pursue that action or not." Barbone said he had represented Junior until his sentencing "on May 27, 2004." However, Junior had not been sentenced until May 27, 2005, just two days after his father's arrest in this case.*fn5 Barbone perceived no conflict based on the circumstances.
As already noted, Junior's sentencing revived the municipal charges against his father and Franks, and on July 29, 2005, after his letter denying the existence of a conflict, Barbone was notified that the matter had been transferred to the Borough of Buena Municipal Court.
On August 18, 2005, Barbone filed a notice of motion in Buena Borough Municipal Court seeking to withdraw counsel for Gary, Franks and Junior. The motion was returnable September 7, 2005.
Prior to the return date of that motion, on August 25, 2005, Willy met with defendant at a diner while wearing a wire for the State. During the course of that conversation, Willy told defendant that he "already ha[d] a discrimination suit with Lou Barbone" that was "suppose[d] to go to mediation on the 2nd." Defendant asked Willy, "[W]hat did [Barbone] say?" Willy replied that he had talked to Lou Barbone's wife once when I filed the law suit and once when in court when you were there that day in Mays Landing and just came out and apologized for me sitting out there all that time and knowing that I worked all night and I was there without any sleep. I... don't even think [he] knows that I'm his client.
The tape of this conversation was played for the jury at defendant's trial, and they were provided with a transcript to review. The court was informed of Willy's references on the tape, but the record does not reveal whether the references to Barbone were redacted for the jury. The transcript provided in the State's appellate record contains no redactions.
In any event, also prior to the return date of Barbone's motion to withdraw from his representation of Gary and Franks, on August 29, 2005, defendant was indicted on the witness tampering charges related to his conduct with Gary and Willy as well as the three others. Therefore, at the time Barbone undertook his representation of defendant on the witness tampering charges, he was still the attorney of record for Gary and Willy, two of the individuals who were named in the indictment as the affected witnesses.
During Gary's testimony in this trial on June 1, 2006, Gary said that when defendant asked him to allow the release of his name as a confidential informant, defendant "knew I was trying to put my kids through school and trying to pay Mr. Barbone's office for legal fees and he told me he would take care of that and make sure my kids were all right." In a follow-up question, the prosecutor then asked Gary, "Now, you said that you had a suit with Mr. Barbone's firm." Defense counsel requested a sidebar and objected to the line of questioning as "irrelevant" and "prejudicial" to him.
The prosecutor argued that evidence of Gary's relationship with Barbone was relevant to explain Gary's "comfort level" with McCusker and Barbone, and he also sought to introduce evidence regarding Barbone "telling the witness what to say, what not to say." The judge initially ruled that the prejudice "substantially outweighed" the probative value as "the jury will take from this that this is one big conspiracy between Mr. Barbone and his client." When asked by Barbone and the court whether he intended to rely on that testimony to accuse Barbone of attempting to influence Gary's prior grand jury testimony, the prosecutor repeatedly asserted, "It's in the discovery." Barbone objected to this evidence as a "highly prejudicial" attempt "to somehow implicate Defense Counsel in some conspiracy, some alleged illegal activity of Mr. Siligato." Barbone insisted that references to him and his firm by Gary come as a surprise and were designed to prejudice "the Defendant and also his lawyer," and the entire defense.
The prosecutor maintained that he had previously moved to disqualify Barbone as defendant's counsel, but he retracted that claim when the court said no such motion had been made.*fn6 The court's statements at the time indicate that its only knowledge of Barbone's prior representation of the Dixon family was a recollection during the previous trial "about efforts made by, I don't know if it's Mr. Dixon or not, when he was under arrest at the State Police barracks, calling Mr. Barbone."*fn7 The court said that "nothing ever came of it."
However, the court stated that, given the facts in dispute and possible evidence of Barbone's involvement, if a motion were made to disqualify Barbone, the court would have to "look further into it" and determine whether defendant would "waive any problem." "I don't even know then that I'd be on sound ground to let you stay in the case." The court believed its "choice" was then to either "mistry this case" or to exclude the evidence that the prosecutor sought to introduce of Barbone's statements to Dixon. The court found that notwithstanding some prejudice to the State, on balance the evidence had to be excluded because it would suggest that Barbone was "part of [defendant's] witness tampering," and thus "he would lose instant credibility and his ability to function as the lawyer in this case would... be seriously undermined." The judge did not want to declare a mistrial again, and concluded that he would "not permit [Gary] or any other witness for that matter to testify as to contact with Mr. Barbone."*fn8 This apparently was understood to apply to representation.
In his subsequent testimony, Gary stated he was summoned to a meeting at a park in Mays Landing to discuss his testimony before going to court, and that Barbone joined them. An objection to the substance of those discussions was sustained. On June 6, 2005, Gary testified that he had previously lied in court on May 27, 2005, at defendant's request, by testifying that defendant was not at that meeting. In later testimony, when asked by the prosecutor "do you recall when he told you to say that," Gary answered Actually when we met in the park that day before I got into Court, me and the Defendant and the attorney.
Subsequently, during Franks' testimony, the prosecutor alerted the court that she might testify that she telephoned Barbone when Gary was arrested for perjury. During the hearing on that issue held outside the jury's presence, Barbone objected to Frank's describing him as Gary's lawyer "at the time because I don't think I was his lawyer at the time." The court asked Barbone, "Did you ever represent him on a previous occasion, him or her?" Barbone responded, "My recollection is that at the time I was representing his son in a matter in Mullica" and that "in that same matter they were charged, but those charges were dismissed." When the prosecutor stated his belief that Gary had been "charged as well," Barbone said, "I just said that they were charged, both Gary and Angela, charged in the same matter, but those charges were dismissed and the only charges remaining [were] with the son." At the time Barbone made this remark, both he and the prosecutor were apparently aware that the charges had not been dismissed, and that Barbone had been forced to request the court's permission to withdraw his representation.
The court found that allowing the jury to hear that Franks believed Barbone was their attorney "has them in an attorney-client relationship and the jury might infer that Mr. Barbone was part of this whole allegation of witness tampering." The court said, "It will be palpable to the jury that Mr. Barbone is part of the fix." The prosecutor agreed to forego that area of inquiry. However, by then the jury had heard she was in the park when Gary met with defendant, McCusker and Barbone prior to going to testify in court on May 17, 2005, and testified ― rightly or wrongly ― that he was called by "[t]he Defendant's attorney."
Prior to Willy's testimony on June 13, 2006, the court questioned Willy on his statements captured on the audiotape of his meeting with defendant in which he referred to Barbone as his attorney. Willy told the court that he met with Barbone and that Barbone's firm represented him in a lawsuit against the Atlantic Palace Condo and Rental Association, and he said that the suit was "ongoing." When the court asked Barbone whether that was true, Barbone replied: "It is my understanding that the actual case in total was settled. There was a Summary Judgment granted by Judge Perskie on a legal issue. I believe if anything... it is still pending it would be an appeal, I believe."
According to our records, of which we take judicial notice, Barbone's law firm had, in fact, filed an appeal on Willy's behalf on March 13, 2006, just three months prior to Willy's testimony. On September 11, 2006, just days after defendant's September 7, 2006 sentencing, Barbone's law firm submitted a letter request to extend the time in which to file a brief. On October 27, 2006, almost two months later, Willy withdrew the appeal (apparently pro se). See Nadir Ahmed v. Atlantic Palace Rental Corp., A-3494-05T1.
In any event, the court instructed Willy while testifying at defendant's trial "that you ought not refer to Mr. Barbone as having been your lawyer." As noted previously, it is unclear from the record whether such references were redacted from the audiotape and transcript.
Investigator Cowan testified that Barbone retained her to interview Willy regarding Gary's "telling lies about Mr. Siligato" after Gary admitted his perjury to the prosecutor. Willy advised Cowan that Gary had lied to the prosecutor. The statement was elicited while Barbone still represented Willy.
In his summation, the prosecutor argued that a "plan was set" by McCusker, the investigator who was identified as working for Barbone, and defendant "to inject Chris Walizer and Steve Nielson into this case." He proceeded to argue the wrongfulness and conspiratorial nature of McCusker's conduct. When defendant objected to the prosecutor's characterization of McCusker as a co-conspirator, the prosecutor said he "never used those words."
The court agreed that the prosecutor's argument appeared to be "making Mr. McCusker a part of a witness tampering plan." It instructed the jury that any inference that McCusker was involved in planning the witness tampering "would be improper for you to draw as not reasonably supported by the evidence in this case."
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.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) each affected client gives informed consent, confirmed in writing, after full disclosure and consultation, provided, however, that a public entity cannot consent to any such representation. When the lawyer represents multiple clients in a single matter, the consultation shall include an explanation of the common representation and the advantages and risks involved;
(2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(3) the representation is not prohibited by law; and
(4) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the lawyer-client relationship; and
(3) information relating to representation of a client is protected as required by RPC 1.6.
Even if there is no technical violation of RPCs 1.7 through 1.9, "[i]t is patently unethical for a lawyer in a legal proceeding to represent an individual whose interests are adverse to another party whom the lawyer represents in other matters, even if the two representations are not related." In re Garber, 95 N.J. 597, 607 (1984). A critical element of an attorney's representation is the obligation to the client of "complete and undivided loyalty." In re Dolan, 76 N.J. 1, 9 (1978).
That obligation is enhanced in a criminal matter where an attorney's divided loyalty has the ability to undermine a defendant's Sixth Amendment right to counsel. State ex rel. S.G., 175 N.J. 132, 139 (2003). The right to counsel afforded by the United States and New Jersey Constitutions extends to the right to effective assistance by that counsel. State v. Norman, 151 N.J. 5, 23 (1997). A criminal defendant's right to counsel "mandates that 'the attorney's position as an advocate for his client should not be compromised before, during or after trial.'" State v. Bellucci, 81 N.J. 531, 539 (1980) (quoting State v. Land, 73 N.J. 24, 29 (1977)).
In State ex rel. S.G., supra, the State moved to disqualify a law firm from the representation of a defendant accused of killing one of the firm's clients. 175 N.J. at 136-137. The firm had represented the victim in two criminal matters, one of which was pending at the time of his death and continued for three weeks until it was dismissed for that reason. Id. at 136. Prior to the dismissal, the firm undertook representation of its client's alleged killer. Ibid. The trial court found no conflict because the representation was clearly over. Id. at 137. A divided panel of this court affirmed, but the Supreme Court reversed. Id. at 143. The firm's representation of the victim did not terminate with his death. Id. at 140. Instead, the firm remained obligated to the court and to the victim "[u]ntil the charges were dismissed by order of the court, typically on the prosecution's motion nolle prosse or nolle prosequi (literally 'will no further prosecute')." Id. at 141.
It is thus the duty of the courts "to protect the integrity of their proceedings when a defendant's Sixth Amendment rights are placed at risk by an attorney's conflict of interest." Id. at 140. The Court cited the Third Circuit Court of Appeals' recognition that inadequate representation of a criminal client arising from an attorney's conflict of interest not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court.... [Ibid. (quoting United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir. 1978)).]
"The judiciary bears the responsibility of 'preserving the fiduciary responsibility that lawyers owe their clients.'" Id. at 139 (quoting Cohen v. Radio-Elecs. Officers Union, 146 N.J. 140, 155 (1996)).
The State now contends that "the potential for actual conflict at trial" was eliminated in this case because defense counsel's representation of the State's witnesses "ended well before the start of defendant's jury trial in May 2006." However, that contention is not supported by the record and was not the State's position at times before the trial court. It appears that Barbone continued to represent defendant after the witness tampering charges were filed while his firm, at least technically, remained the attorney of record for two of the affected witnesses, Gary and Willy, and another key witness for the State, Angela Davis. Through the trial, it continued to represent one of the affected witnesses, Willy, in a matter on appeal.
Moreover, there is at least a question about whether Barbone was Gary's, Frank's, and Willy's attorney during the very time that the events occurred between them and defendant that gave rise to Gary's and Willy's perjured testimony and Gary's arrest for perjury. Furthermore, particularly given the testimony about the meeting with Gary in the park before his first appearance in this case, the jury may have believed Barbone was involved in the wrongful conduct. If so, the credibility of the defense may have been affected as to all counts. It is clear that defendant used knowledge of Gary's financial obligations to Barbone as a lever to obtain perjured testimony. Defendant had somehow obtained confidential information that Gary had been a police informant and attempted to employ this information to his advantage as a basis for blaming third parties for the arson. At the same time, it appears that Willy may have relied on the dual representation as part of his effort to obtain defendant's trust while wearing a wire for the State to obtain evidence against one of his attorney's other clients. Barbone may well have given good faith responses to inquiries about representation of Gary and Davis and the pendency of charges against them, but they don't seem supported by the record. Moreover, technical violations by counsel should not generally excuse the conduct of a defendant if guilty. Nor should counsel be permitted to build in a basis for reversal by his own misconduct. However, the Sixth Amendment right to conflict-free counsel, and the possible impact of Barbone's representation on the testimony of his other clients, necessitate a remand for an evidentiary hearing as to whether a new trial is warranted on that basis. In addition, the judge should take evidence and consider defendant's knowledge of any conflict, its impact and whether he waived the conflict by his actions. While the "appearance of impropriety" may no longer be a basis for discipline of a lawyer, it should be considered in connection with the perception of a conflict of interest and a fair trial. State v. Davis, 366 N.J. Super. 30, 44 (App. Div. 2004).*fn9 See also In re Supreme Court Advisory Comm. on Prof'l Ethics No. 697, 188 N.J. 549, 558 (2006).
It appears that the prosecutor failed to pursue his stated intent to seek Barbone's removal or even to adequately apprise the court of the issue prior to the retrial. He must therefore bear some of the responsibility for the shape of the record. Moreover, he repeatedly sought to link Barbone's investigator, McCuskey, with the witness tampering charges.
The State claims in its brief before us that it had been unaware that Willy had been "a former client" of Barbone's. That claim is difficult to reconcile with Willy's recorded statement to defendant that Barbone was his attorney, stated while wearing a wire for the State. In any event, the issue of Barbone's representation of each and every witness and when it ended and possible impact on the trial proceedings can be developed at length on the remand. If the court concludes that defendant is entitled to a new trial on the witness tampering charges, it should also decide whether the need for same affects any other conviction, and give reasons for that decision.
Accordingly, the matter is remanded to the Law Division for a hearing to consider the issues we have addressed. The remand shall be completed and the trial court shall file its conclusions and statement of reasons before the Thanksgiving recess. If the court grants a new trial, in whole or in part, the trial shall be stayed pending a timely motion for leave to appeal by the State. If a new trial is denied, in whole or in part, defendant may file an amended notice of appeal within ten days of the trial court's order. Defendant shall also order a transcript of the remand proceedings, and the parties may exchange supplementary briefs within thirty days of the preparation of the transcript. We shall thereafter address the new issues presented as well as those not addressed in this opinion.
We retain jurisdiction.