On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-01-0207.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Ashrafi and Fasciale.
In this interlocutory appeal arising out of a homicide prosecution, the State contests the trial court's order denying its motion to disqualify Steven E. Nelson as counsel for defendant Thomas Dorsett. The State contends that Nelson is disqualified from continuing to represent his client under Rule of Professional Responsibility ("RPC") 3.7(a)*fn1 because he is allegedly a "necessary witness" at trial. The trial court rejected that contention, and so do we.
Defendant is one of several individuals charged in an indictment stemming from the death of Stephen Moore, whose body was found in the trunk of a burned vehicle in Long Branch on August 18, 2010. Moore was the ex-husband of defendant's daughter, Kathleen Dorsett. During the course of the ensuing investigation, the police came to believe that defendant and his daughter had participated in a conspiracy to murder Moore. Five days after the discovery of Moore's remains, the police arrested Kathleen Dorsett on the evening of August 23.
Defendant had retained Nelson as his attorney on August 21. The morning after his daughter's arrest, August 24, he had an appointment to meet with Nelson, at Nelson's law office.
A detective from the Monmouth County Prosecutor's Office who was conducting surveillance followed defendant to Nelson's office at about 5:15 a.m. on August 24. Defendant parked his truck in the office's parking lot and remained inside in the driver's seat. Another detective arrived, who continued the surveillance of defendant from across the street.
At about 8:11 a.m., Nelson drove into the parking lot and pulled his car next to defendant's truck. Nelson got out of his car, and peered inside of his client's truck. Defendant was slumped over in the driver's seat of the truck and unresponsive. After briefly attempting to awaken defendant by knocking on the window, Nelson made a call to 9-1-1 seeking emergency assistance. On the 9-1-1 recording, Nelson told the operator that "[t]here's a man I think in a truck . . . he has a hose in his mouth with a refrigeration tube that is connected to it." Additionally, Nelson told the dispatcher that the hose was "connected to a refrigeration tank and it's in his mouth. His daughter was just arrested yesterday and charged with murder so I'm just very concerned here." Nelson attempted to break into the locked truck without success.
A responding Neptune Township patrolman arrived less than two minutes later at 8:13 a.m. and his motor vehicle recording device ("MVR") was active. The patrolman briefly spoke with Nelson and then broke open the truck's passenger-side window with a baton. Then, he reached into the truck and removed the tube from the mouth of defendant, who was still breathing. Emergency assistance soon arrived and defendant was brought to the hospital.
Defendant survived the incident, which the parties agree was an attempted suicide. The tank attached to the hose had contained chlorodifluromethane, a refrigerant. Defendant, Kathleen Dorsett, and other persons were thereafter indicted and charged with, among other things, conspiracy to murder Moore.
The State moved to disqualify Nelson, among other reasons, under RPC 3.7(a), asserting a theory that he is a "necessary witness" at the forthcoming trial by virtue of his presence at the scene of his client's attempted suicide in the parking lot. The State also moved, in limine, to have the trial court declare the suicide attempt admissible under N.J.R.E. 404(b), as proof tending to show defendant's consciousness of his guilt. See also State v. Mann, 132 N.J. 410, 423-24 (1993) (observing that "[t]he possible ambiguity of an accused's suicide attempt requires a careful consideration of the probative value such evidence offers").
Following a Rule 104 hearing at which several witnesses testified, the trial court granted the State's motion in limine under Rule 404(b),*fn2 but denied the State's motion to disqualify Nelson. The trial court explained the basis for its rulings in a twenty-three-page opinion dated June 9, 2011.
The State moved for leave to appeal the trial's court's order denying disqualification. We now address that order on the merits, following a remand from the ...