March 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
THOMAS DORSETT, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2012
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 Supreme Court directing its consideration.
The State does not intend to call Nelson to the witness stand at trial. Nor, for that matter, does defendant. Instead, the State will present, as part of its Rule 404(b) proofs, the 9-1-1 audio recording, the MVR tape, and the testimony of the law enforcement personnel who observed defendant and Nelson in the parking lot.
The State maintains that Nelson will be a so-called "unsworn witness" at the upcoming trial because his voice and his movements will be presented to the jury. The State does not contend that Nelson has acted in any way unethically or illegally. However, the State is concerned that the jury will have difficulty separating Nelson's role as an advocate for his client from Nelson's fortuitous appearance at the scene of the attempted suicide. It consequently maintains that Nelson is disqualified from continuing to represent defendant at trial. Defendant, meanwhile, has a strong desire to maintain Nelson as his trial attorney of choice. In addition, defendant notes that he and his co-defendants have waived*fn3 any alleged or perceived conflict of interest that may stem from Nelson's continued service as trial counsel.
Having considered these arguments, we affirm the trial court's order denying disqualification, substantially for the cogent reasons expressed in Judge Anthony J. Mellaci, Jr.'s written opinion dated June 9, 2011.
A defendant's right to counsel of his or her choosing is a paramount value in our criminal justice system. A defendant is entitled to have "a fair opportunity" to counsel of his or her choice. State ex rel S.G., 175 N.J. 132, 140 (2003). However, that right yields when an actual conflict exists that "undermines the integrity of the court." State v. Davis, 366 N.J. Super. 30, 38 (App. Div. 2004). The disqualification of an attorney selected by a client "is a harsh discretionary remedy which must be used sparingly." Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000).
Bearing these principles in mind, we agree with Judge Mellaci that the State has not carried its burden to disqualify Nelson under RPC 3.7(a). In particular, we reject the State's refrain that Nelson is precluded from serving as defendant's advocate because he has the status of an "unsworn witness." The attempted suicide that Nelson observed in the parking lot is undisputed. Virtually everything, and anything of consequence, that Nelson observed at the scene was also observed by the law enforcement officers who were also present. The contents of Nelson's 9-1-1 call are captured on an audiotape, and the MVR shows Nelson's interaction with the patrolman who rescued defendant from the truck. There is nothing controversial or disputed about what Nelson said or did. His involvement in the matter is entirely different from cases involving attorneys representing organized crime figures who are captured on surveillance tapes during discussions of illegal or fraudulent activities. Cf. United States v. Locascio, 6 F.3d 924, 933-34 (2d Cir. 1993), cert. denied, 511 U.S. 1070, 114 S. Ct. 1646, 128 L. Ed. 2d 365 (1994).
The concerns raised by the State about potential jury confusion, or about Nelson's advocacy having undue weight because of his presence at the attempted suicide scene can be fairly addressed by other measures, short of disqualification. For example, the trial judge can issue a special instruction to the jurors advising them not to give Nelson's arguments any greater credence because of his presence at the suicide attempt. The court may also impose reasonable boundaries upon Nelson's opening and closing arguments to assure that he does not vouch for his client, nor intimate his possession of any "special insight" about his client's behavior or motives.*fn4
Consequently, we uphold the trial court's rejection of the disqualification motion, as the State has not met its burden under RPC 3.7(a). Even if, for the sake of argument, the State had made a sufficient showing under the general terms of RPC 3.7, we also have significant concerns as to whether Nelson's disqualification on the brink of trial would "work substantial hardship" on defendant under RPC 3.7(a)(3), and nonetheless permit his continued representation pursuant to that exception.