December 22, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
LEE A. WILLIAMS, JR., DEFENDANT-RESPONDENT.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 09-07-00422.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2011
Before Judges A. A. Rodriguez and Sabatino.
On leave granted, we review the trial court's denial of the State's motion to disqualify defendant's attorney pursuant to Rule of Professional Conduct ("RPC") 3.7. The motion was grounded on the State's belief that the attorney is likely to be a material witness at the upcoming criminal trial because he had three brief conversations with another potential witness. The trial court rejected the State's contentions, concluding that defense counsel is not likely to be a material witness at trial. We agree, and sustain the trial court's order denying counsel's disqualification.
Because this criminal case is in the pre-trial stage, the underlying facts have not been established conclusively. Subject to the developments at trial, we summarize the circumstances and factual allegations that provide a backdrop to our analysis of the disqualification issue.
On August 14, 2008, the victim, Jeremy Huff, was stabbed to death at his residence in Quinton. Based upon statements by the victim before he died, the police identified co-defendant Brooks G. Harris as a potential suspect in the homicide. The police interviewed Harris, who stated that he had hired Jerry Loatman and a black male, who was later identified as defendant, Lee A. Williams, Jr., to attack Huff.
Six days after the stabbing, on August 20, defendant went to the home of Larry Boykin in Lawnside. The record indicates that Boykin is defendant's godfather and a childhood friend of defendant's father, Lee A. Williams, Sr. Defendant indicated to Boykin that the police were after him and that he needed help.
Apparently without giving specific details, defendant suggested to Boykin that there might be information in the newspapers about his circumstances. After reading a story about Huff's stabbing in an online newspaper, Boykin surmised that defendant was wanted in connection with the crime.
Boykin contacted Lloyd Lewis, a personal friend who is also a Lieutenant in the Lawnside Police Department, to help arrange for defendant's surrender. Boykin accompanied defendant to the Lawnside Police Department later that day where they met with Lewis. That afternoon, members of the Salem County Prosecutor's Office and State Police arrived. Certain aspects of what transpired at the Lawnside Police Department are apparently subject to different accounts by Boykin and Lewis.*fn1
In July 2009, the Salem County grand jury issued an indictment, charging defendant and Harris with various offenses related to the fatal attack on Huff. With respect to defendant, those charges included murder for hire, N.J.S.A. 2C:11-3a(1) and (2) (counts three and four); conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3a(1) and (2) (counts five and six); conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b(1) (count seven); aggravated assault, N.J.S.A. 2C:12-1b(1) (count eight); robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count nine); felony murder, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-6b(3) (count ten); theft of Huff's automobile and conspiracy to commit theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:5-2 (counts eleven and twelve); certain weapons offenses concerning the possession of the knife, N.J.S.A. 2C:39-4d and N.J.S.A. 2C:39-5d (counts thirteen and fourteen); and burglary and conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (counts fifteen and sixteen). Defendant has entered a not guilty plea, and is awaiting trial.*fn2
While defendant was in custody at the county jail, the Prosecutor's Office obtained letters that defendant apparently wrote from jail to a suspect in an unrelated narcotics matter. The letters were seized following the execution of a search warrant at the residence of the narcotics suspect. The State contends that one of these letters refers to an alleged confession made by defendant. The State also asserts that the letter suggests that Boykin knew about that alleged confession. In part, the letter from defendant states:
[M]y attorney talking about the only thing that the[y] got, not even got what they trying to use is a finger print that they found on the outside of the white dude that lost trial truck. They trying to use a statement that my God-dad made against me but flipping the words around to make it as if I told him I did that dumb shit but my God-dad spoke to my lawyer and straightened everything out and hired a lawyer cause the cops or prosecutors trying to switch what he said up. [Emphasis added.]
The State contends that the references in the letter to defendant's "God-dad" are to Boykin, and that the reference to defendant's "lawyer" is to his criminal defense attorney.
The State argues that defense counsel is likely to be a material witness for the prosecution at trial principally to impeach Boykin, defendant's godfather. The State anticipates that Boykin, if he is called as a witness, will deny any knowledge of defendant making a confession or self-incriminating statement to Lewis about his involvement in Huff's stabbing.*fn3
The State asserts that Boykin spoke with defendant's attorney on several occasions, and apparently they discussed the pending case against defendant. The State anticipates that defense counsel will contradict Boykin's contention that he has no knowledge of any confession or incriminating statements by defendant. The State further contends that defense counsel can offer testimony that may confirm that Boykin told him that he called the attorney at the request of defendant's father, a contention that the father denies.
In assessing the State's disqualification motion, the trial court conducted an evidentiary hearing, at which Boykin, Lewis, defendant's father, and a detective from the Prosecutor's Office all testified. We now summarize pertinent aspects of their respective testimony at the hearing.
Boykin testified at the hearing that defendant did not say anything about the attack on Huff when defendant, Boykin, and Lewis were at the Lawnside Police Department when defendant surrendered on August 20, 2008. Boykin maintained that he was present during the conversation that took place there between Lewis and defendant, with the exception of approximately fifteen to twenty minutes, when Boykin went alone to a nearby fast-food restaurant to get lunch. Boykin denied having been told by Lewis after lunch about anything that defendant may have communicated to Lewis while Boykin had stepped out.
Boykin further related that on August 21, the day after defendant surrendered, the State Police interviewed him at the Belmar State Police Barracks. During that interview, Boykin was asked if defendant had told him anything about the crime. Boykin repeated that defendant did not tell him anything regarding the crime, and that he was not aware of anything that defendant had said about it to Lewis.
According to Boykin, sometime in mid-2009, defendant's father telephoned him. During the course of that conversation, the father allegedly told Boykin that defendant's counsel would like to speak with Boykin when he had a chance. According to Boykin, the father did not give a reason why defendant's counsel wanted to speak with Boykin, nor was anything about a confession mentioned at that time.
Shortly thereafter, Boykin placed a call to defendant's attorney. Boykin testified that during that conversation, defendant's attorney told Boykin that there was a possibility that the State would infer, from the statement Boykin had given to the State Police on August 21, that defendant had confessed to the killing. To Boykin's knowledge, no one else participated in or heard this telephone conversation with defendant's attorney. As Boykin recalled it, the conversation concluded by defendant's attorney telling Boykin to inform him if the Prosecutor's Office contacted him. On the whole, Boykin described his initial conversation with defendant's attorney as "very, very brief," and not "an in depth conversation or anything of that nature."
After the Prosecutor's Office subpoenaed him, Boykin had a telephone conversation with an Investigator Clark from the Prosecutor's Office to arrange a time for Boykin to come in and give a statement. During that conversation with Clark, Boykin also requested defense counsel's phone number, so that Boykin could call him. At first, Clark was unsure as to whether he could give Boykin the contact information, but according to Boykin's testimony, Clark called Boykin back a few minutes later and provided it to him.
After obtaining defense counsel's phone number from Clark, Boykin contacted the attorney for a second time, in or about November of 2010. However, on that occasion, the attorney apparently told Boykin that they could not have a conversation without an investigator present or monitoring the call, and thus the call was concluded.
At some unspecified later time, defendant's counsel called Boykin. They had a third conversation, this time with an investigator listening. The call was conducted via speaker phone. During that third conversation, defendant's attorney asked Boykin if his client had said anything to him that resembled a confession. Boykin replied in the negative. As Boykin described it
Absolutely not, then I told him point blank I said honestly had the kid gave up some sort of confession in front of me point blank I would have called his dad immediately like hey man, your son jumped out the window and confessed to a crime, you know I would have told him . . . . I said so honestly had he confessed in front of me you would have known it by now.
On cross-examination at the disqualification hearing, Boykin asserted that if defendant had told him that he had been involved in the stabbing or had given him details about the incident, Boykin would have told Lewis because he trusted him. In addition, Boykin maintained that Lewis would have told him if defendant had said anything about being involved in the crime, especially because it was Boykin who sought out Lewis's help in the first place. Boykin stated that he was unaware of any admission that defendant made to Lewis about being at the scene of the crime. He was "stunned to hear" that Lewis had testified to that effect.
Lieutenant Lewis acknowledged at the disqualification hearing that he and Boykin are personal friends. They are Masonic brothers, and Lewis coached Boykin's children in sports.
In addition, both men are residents of Lawnside and see each other regularly.
According to Lewis's testimony, on August 20, 2008, at approximately 3:00 p.m., Lewis received a phone call from Boykin seeking his help. Within fifteen to twenty minutes, Lewis met Boykin and defendant at the Lawnside Police Department. After Lewis realized the nature of defendant's trouble, Lewis called the Prosecutor's Office and advised an investigator that they had defendant at the police station.
Once at the police station, the interaction involving Lewis, defendant, and Boykin occurred in a squad room, which is a small area used for booking suspects and for conducting interviews. According to Lewis, he did not conduct a formal interview with defendant. In addition, Lewis contends that he repeatedly advised defendant not to offer any information. Lewis recalled that he gave these instructions when Boykin was also present in the room, before Boykin left to retrieve food for lunch. Nevertheless, Lewis eventually got the impression that defendant "wanted to get something off his chest," and so he provided a Miranda*fn4 warning to defendant.
Soon thereafter, while Boykin was out of the room, defendant allegedly admitted to Lewis that he and "some friends went to a home in Quinton Township . . . that [he] and another gentleman went into the home, that the other gentleman stabbed someone."*fn5 According to Lewis, Boykin returned to the room "about ten minutes later" after getting food.
Lewis maintained that after Boykin returned to the room, he told Boykin in defendant's presence, that defendant had informed him that he had been in a home where a murder had occurred. About fifteen minutes later, officers from the Prosecutor's Office and the State Police arrived. Lewis testified that he had a conversation with those officers, but he did not remember whether he told them about defendant's statement, testifying only that it was "possible" that he had done so.
In November 2010, Lewis gave a formal statement to the Prosecutor's Office. In that statement, Lewis repeated what he had allegedly told Boykin on August 20, 2008, that defendant had provided him a "brief synopsis of the story."
On cross-examination, Lewis acknowledged that the room in which his interaction with defendant took place on August 20, 2008 was equipped with video and audio equipment. The equipment runs twenty-four hours a day. According to Lewis, he advised Boykin and defendant that the equipment was constantly recording when they were in the room. However, the video and audio digital recordings were deleted after forty-five days, pursuant to the department's customary practices, because no one had made a request to preserve the recording.
The testimony of defendant's father at the disqualification hearing was limited to addressing Boykin's contention that the father had told Boykin to call his son's defense attorney. Defendant's father denied making such a request of Boykin. In addition, the father did not remember his son's attorney ever indicating to him that he needed to talk with Boykin, nor with anyone else related to the case.
The State also presented at the hearing the testimony of Sergeant Brian Facemyer of the Salem County Prosecutor's Office. Facemyer was part of the team that had executed a search warrant for the premises of the suspect in an unrelated narcotics matter. Facemyer explained how the team had recovered defendant's jailhouse letters on the premises. Facemyer had no interactions with defendant, nor with any of the other witnesses in this case.
Defendant did not present any witnesses at the disqualification hearing. In particular, defense counsel did not testify, nor did he submit a certification or an affidavit to the court.*fn6
After considering this testimony and other aspects of the record, as well as the oral arguments of the parties, the trial judge issued an oral opinion on February 4, 2011, denying the State's motion for disqualification.
In the course of his analysis, the judge observed that pursuant to R.P.C. 3.7, "there must be a true, compelling and legitimate need for the disqualification of defense counsel." The judge noted that the State's heavy burden to establish such a compelling need flows out of the "important" right of an accused to be represented by competent counsel of his or her choosing.
The judge concluded that the State had not met its heavy burden of proving the necessity for defense counsel's testimony in this case. The judge noted that defense counsel's communications with Boykin were "rather brief." The judge did acknowledge that there is "some discrepancy" between the testimony of Boykin and Lewis as to what Lewis allegedly told Boykin concerning what defendant said in Boykin's absence on August 20, 2008. Even so, the judge did not find that discrepancy to be particularly "relevant to the key issues in this case[.]"
The judge further rejected the State's contention that the contents of defendant's jailhouse letter created a compelling need to call defense counsel as a trial witness for the prosecution. In particular, the judge perceived no need for the State to call defendant's attorney and attempt to have him reconcile whether, as Boykin contends, defendant's father had urged Boykin to call the attorney, or as the father contends, he made no such request.
The trial judge accordingly issued an order on February 10, 2011 which, among other things, denied the State's disqualification motion.*fn7 We subsequently granted the State's motion for leave to appeal.
The applicable provision, R.P.C. 3.7(a), states that:
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 rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
[R.P.C. 3.7 (emphasis added).]
It is undisputed that the exceptions in R.P.C. 3.7(a)(1) and (2) do not apply here. The analysis thus hinges upon whether defendant's attorney is "likely to be a necessary witness" at trial, and if so, whether the attorney's disqualification would inflict a "substantial hardship" upon his client.
We agree with the trial judge that the State has failed to demonstrate the necessity of defense counsel's testimony. Moreover, even assuming for the sake of argument that such necessity were shown, the likely hardship in forcing defendant now to obtain a new attorney on the brink of trial would be real and substantial.
Our State's case law has long recognized the paramount importance of "a client's right freely to choose his counsel." Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 205 (1988) (quoting Gov't of India v. Cook Indus., Inc. 569 F.2d 737, 739 (2d Cir. 1978)). Consequently, the disqualification of a client's counsel is considered a harsh remedy that should only be granted sparingly. Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000).
R.P.C. 3.7 recognizes these fundamental principles by authorizing disqualification of the client's attorney only where that attorney's trial testimony is "necessary" and "likely." A purpose of that limited remedy is to prevent unfairness to the opposing party. See Michels, New Jersey Attorney Ethics, comment 31:4-1(a) on R.P.C. 3.7 (2012). A mere representation of an intent to call the attorney as a witness at trial is not sufficient, in and of itself, to demonstrate such necessity and likelihood. See, e.g., J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 230 (App. Div. 2006).
The State essentially posits two reasons why defense counsel's trial testimony is necessary to its case-in-chief. It mainly contends that it needs to call the attorney to attempt to impeach Boykin's steadfast assertion that Lewis did not tell him that defendant had made self-incriminating statements on the day of his surrender at the Lawnside Police Department. In particular, the State hopes that defense counsel will acknowledge that, in his own conversations with Boykin, Boykin referred to defendant having made incriminating remarks to Lewis. The second aspect of the State's proffer is that defense counsel might confirm that Boykin told him that he was calling at the behest of defendant's father, thereby impeaching the father's denial of such a request. Neither of these theorized expectations establishes the "necessity" of defense counsel's testimony.
Defense counsel would have little, if anything, to add as a fact witness in this case. He did not observe the stabbing, nor did he witness his client's conduct before or after the stabbing. He did not come into possession of the murder weapon, nor any other tangible evidence. He was not present when his client turned himself in to the police, nor did he speak with Lewis or any of the other officers. His personal knowledge concerning the crime is essentially non-existent. See N.J.R.E. 602 (requiring non-expert witnesses to confine their testimony to matters of personal knowledge).
The alleged nexus of defense counsel to Boykin's own state of mind and Boykin's own knowledge is attenuated. The record does not reflect that Boykin has any personal knowledge about the preparation for or the commission of the stabbing. Moreover, it is undisputed that Boykin was not present when defendant allegedly made self-incriminating statements to Lewis. Indeed, Boykin and Lewis agree that Boykin left to get food when defendant spoke privately with Lewis and then allegedly admitted that he was present at the crime scene. The only facet of the events at the Lawnside Police Department that is at issue here is whether or not Lewis told Boykin, upon his return from getting lunch, that defendant had incriminated himself. That disputed point is distant from the core of the State's case.
At best, defense counsel would be offered as an impeachment witness for the State, one who potentially might undermine Boykin's claim of ignorance about what Lewis says he told him at the police station. His impeachment testimony on such a collateral matter would be of doubtful admissibility. See, e.g., Gonzalez v. Silver, 407 N.J. Super. 576, 594-95 (App. Div. 2009) (noting that testimony to impeach the plaintiff about a collateral subject should not be allowed at retrial). The testimony also would not be conclusive, as the jury would still need to weigh Boykin's credibility against that of Lewis on this discrete point. The reconciliation of that dispute would do little to resolve the more relevant question, i.e., whether defendant did or did not confess anything to Lewis. Whether or not Lewis told Boykin -- or for that matter any other third party -- about defendant's supposed admission is of only remote significance.
We likewise discern no necessity for defense counsel to address, as a trial witness, whether or not defendant's father had urged Boykin to telephone him. The impetus of the first telephone call -- one that defense counsel did not initiate -- is at best of marginal probative value. The State apparently hopes that defense counsel will confirm, as the jailhouse letter suggests, that Boykin initiated contact with him possibly as part of some overall scheme to thwart the prosecution. We do not and will not go out on such a conjectural limb. Although the contents of the letter on its face are troublesome, there is absolutely no proof in the record that defense counsel unethically discouraged Boykin from being truthful. Here again, the State has not shown the necessity for counsel's testimony.
Although the trial judge did not specifically address subsection (a)(3) of R.P.C. 3.7, there is ample reason to believe that depriving defendant of his counsel at this late stage of the pretrial process would cause him substantial hardship. The indictment was issued in 2009, and defense counsel has been deeply involved in a host of pretrial issues, as reflected by the breadth of the other subjects covered in the February 10, 2011 order now on appeal. We see no equitable reason to deprive defendant of his trial attorney at this late juncture. See R.P.C. 3.7(a)(3).
The State's reliance in its brief upon State v. Dayton, 292 N.J. Super. 76 (App. Div. 1996), is misplaced. That case, unlike the case before us, involved a defense attorney's own application to disqualify himself. The defense attorney contended that he was likely to be a necessary witness at trial because he had interviewed two of the State's witnesses without an investigator present, and he would need to take the stand if those witnesses recanted on what they had told him. Id. at 83. In particular, there was a possibility that the two witnesses would deny having told defense counsel that they were unsure whether the weapon they saw used in the crime was a knife rather than a gun. Id. at 82-83. The nature of the weapon was a critical element of the prosecution. In addition, there was a concern that those witnesses might testify that defense counsel had pressured them. We observed that the absence of defense counsel's testimony at trial on this "significant issue," as we described it, "left a void at trial." Id. at 87.
The present case is unlike Dayton in several respects. First, the motion to disqualify here was filed by the State, defendant's adversary, with the objective of weakening, not strengthening, defendant's proofs at trial. In addition, the two witnesses about whom the defense lawyer in Dayton had knowledge were eyewitnesses to the crime itself, unlike Boykin and defendant's father who were not present when the victim was stabbed. Another distinguishing factor is that in the present case the State has another witness, i.e., Lewis, who can attest directly as to whether defendant did or did not make self-incriminating statements at the police station.*fn8 We do not perceive the testimony the State seeks from defendant's attorney to collaterally impeach Boykin to represent a comparable "significant issue."
For these abundant reasons, the trial court's order denying the motion to disqualify defense counsel is affirmed. The case is remanded for trial.