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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...