August 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TUBAL EDUARDO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-10-0751.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 21, 2011 -
Before Judges Fuentes, Graves and Harris.
On March 31, 2010, a jury convicted defendant Tubal Eduardo of third-degree theft by failure to make required disposition of property, N.J.S.A. 2C:20-9. The trial court sentenced defendant to a three-year period of probation conditioned upon his incarceration in the Somerset County Jail for 364 days. In addition, defendant was ordered to pay restitution in the amount of $33,351.24 to a trust established for the benefit of his three-year-old son. For the reasons that follow, we affirm.
On March 17, 2007, a fire at defendant's residence resulted in the death of defendant's girlfriend, and two of their three children. Defendant and their third child survived.
Following the fire, the president of a local Parent Teacher Association (PTA), initiated a fundraising campaign. Although donations were solicited for the "Eduardo Family Fund," the intended beneficiary was defendant's son. Over the next few months, the PTA collected a total of $38,351.24 in donations which were placed in a special bank account.
Defendant and his son were both hospitalized as a result of injuries sustained in the fire. After the child was released from the hospital, he stayed with his maternal aunt, Nicole Latch. Thereafter, while defendant remained hospitalized, Latch retained counsel and filed an application to obtain temporary custody of the child. According to Latch, she wanted "to make sure [the child] was safe and had a stable home," and that the money collected by the PTA "was put in a safe place."
On March 26, 2007, a family court judge in Somerset County entered an order to show cause (OTSC) that allowed Latch to retain temporary custody of the child pending the return date of the order. The OTSC prohibited defendant from "[t]ransferring or dissipating any funds from any trust set up on behalf of the minor child." Once defendant was released from the hospital, he received a copy of the OTSC, and retained an attorney "[t]o get [his] son back."
Both defendant and Latch were present at the Somerset County Courthouse with their respective attorneys on April 27, 2007, the adjourned return date of the OTSC. With the assistance of their attorneys, the parties were able to reach an agreement regarding custody, parenting time, and the proceeds of the PTA fundraising campaign. The agreement was memorialized in an order dated June 12, 2007. Paragraphs one, two, and nine of the order provided as follows:
1. The parties shall share joint legal and physical custody of the minor child . . . pending further order of the Court.
2. The defendant shall have parenting time every other weekend with pick up at daycare on Friday until Sunday at 4:00 P.M. The defendant shall stay with the child at his mother's residence. On alternative weekends, the defendant shall have parenting time on either Saturday or Sunday from 10:00 A.M. to 7:00 P.M. During the week, defendant shall have parenting time on Tuesday and Thursday. Defendant shall pick up the child from daycare. Plaintiff to pick up the child at defendant's mother's residence. All pick ups and drop offs shall be curbside.
9. Any moneys received for the benefit of [the child] shall be placed in a joint guardian account naming [the child's maternal grandmother] and Tubal Eduardo as co-holders of the account. No moneys shall be removed from the account without agreement of the [parties] and signatures of both of them. The parties agree they shall act reasonably in the best interest of the minor child.
Unfortunately, the PTA was not aware of the order. Approximately three months later, in September 2007, the PTA president gave two checks to defendant's brother based on his representation that he and Latch had agreed they would be "guardians of the [funds] until [the child] was of age." One check in the amount of $5000 was made payable to defendant, and the second check for $33,351.24 was made payable to the child.
On September 22, 2007, defendant opened a personal checking account in his name with the $5000 check. Two days later, defendant opened a custodial savings account in his name with his infant son named as the beneficiary pursuant to the New Jersey Uniform Transfers to Minors Act, N.J.S.A. 46:38A-1 to -57. The custodial savings account was established with the deposit of the $33,351.24 check. Defendant had the two bank accounts linked so that the custodial savings account would provide overdraft protection on defendant's personal checking account. No one other than defendant had access to the funds in the two accounts.
On March 17, 2008, defendant, Latch, and their attorneys returned to court to address custody issues and the PTA funds. During the hearing, defendant was asked about the money he received from the PTA, and he responded: "It was about eight or nine months ago that I received that money. Five was given to me, ten -- I'm sorry thirty was for [my son]. I lived off of that money. I also purchased myself a vehicle." Bank records confirmed that as of December 3, 2007, approximately ten weeks after defendant received the PTA funds, only $114 remained in the child's custodial savings account.
As a result of defendant's statements in court, Detective Michael Schutta of the Somerset County Prosecutor's Office Special Investigations Unit interviewed the PTA president, Latch, the child's maternal grandmother, the court-designated co-holder of the PTA account, and defendant's brother. Schutta also reviewed the bank records from the two accounts defendant opened with the PTA checks he received from his brother. According to Schutta, the bank records indicated a large number of debits and cash withdrawals from defendant's checking account, with corresponding overdraft transfers from Noah's custodial savings account. Schutta testified that the checking account transactions included charges at hotels, liquor stores, convenience stores, gas stations, restaurants, and toy stores, as well as a spa and a go-go bar. In addition, the bank records reflected approximately $7100 in charges for escort services.
Schutta interviewed defendant on September 18, 2008. At that time, defendant told Schutta: "Money is money, man. I spent the money in the way I [felt] fit." Defendant also told Schutta he "really didn't give a [expletive] what people thought about where the money went."
At trial, Latch and her attorney both testified that the agreement reached on April 27, 2007, was memorialized in the June 12, 2007 order. In addition, when asked to describe the negotiations that preceded the agreement, Latch testified as follows:
A. I would state . . . my request and then my lawyer would go out in the hallway, discuss it with the two of them, and then she'd come back in and then tell us what their messages were and we [would] kind of go back and forth until we came to an agreement.
Q. When you say the two of them, who do you mean?
A. The defendant and Steve Lieberman.
Q. His attorney?
Q. Now . . . with respect to issues regarding Noah's charitable donations, what did you want this Order to state?
A. Just that [it] would require . . . signatures from the defendant and myself to release any of the funds.
Q. Okay. Whose funds?
A. Noah's funds, the PTA, Noah's funds.
Q. That was part of your negotiation?
Over defendant's objection, the court granted the State's motion to permit defendant's former civil attorney to testify that: (1) he represented defendant in 2007; (2) defendant handed him the OTSC dated March 26, 2007; (3) he was present with defendant at the courthouse on April 27, 2007, when the parties reached an agreement regarding the issues raised in the OTSC; (4) the parties' agreement was memorialized in a subsequent order dated June 12, 2007; and (5) defendant's civil attorney handed a copy of the June 12, 2007 order to defendant when they met in either June or July 2007. The court restricted the attorney's testimony, however, to "narrowly tailored questions" that did "not intrude into the attorney-client relationship or the confidential discussions that [the attorney] and [defendant] may have had." In addition, after defendant testified he did not know he "could not spend [his son's] money," the court allowed defendant's civil attorney to testify in rebuttal that he discussed paragraph nine of the June 12, 2007 order with defendant.
In her summation, defense counsel argued defendant was the victim of a tragedy, and "his focus at that time was custody." Defense counsel also argued "Mr. Eduardo believed that he had the right to these funds" because "[n]o one explained to him anything about [the] funds."
On appeal, defendant argues the trial court committed reversible error because the civil attorney's testimony that he "handed over and explained to the defendant a court order violated N.J.R.E. 504 and the testimony substantially diminished the defendant's constitutional right to a fair trial." We do not agree.
The attorney-client privilege is the oldest privilege known to common law. Halbach v. Boyman, 369 N.J. Super. 323, 328 (App. Div. 2004). "The privilege recognizes that sound legal advice or advocacy serves public ends and rests on the need to 'encourage full and frank communication between attorneys and their clients.'" United Jersey Bank v. Wolosoff, 196 N.J. Super. 553, 561 (App. Div. 1984) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L. Ed. 2d 584, 591 (1981)). As our courts have noted, however, "the privilege results in suppression of evidence and to that extent is at war with the truth." Ibid. (citing In re Selser, 15 N.J. 393, 405 (1954)); see also State v. Mauti, 208 N.J. 519, 536 (2012) ("[P]rivileges are not absolute and may, occasionally, yield to competing legal principles.").
The attorney-client privilege "is limited to those communications which the client either expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended." State v. Schubert, 235 N.J. Super. 212, 221 (App. Div. 1989), certif. denied, 121 N.J. 597, cert. denied, 496 U.S. 911, 110 S. Ct. 2600, 110 L. Ed. 2d 280 (1990). Where the privilege is applicable, it "must be anchored to its essential purpose." United Jersey Bank, supra, 196 N.J. Super. at 561. A client may not "use the privilege as a sword rather than a shield" to "divulge whatever information is favorable to [the client's] position and assert the privilege to preclude disclosure of the detrimental facts." Id. at 567.
The Court has adopted a three-part test for determining when the attorney-client privilege may be pierced. The party (in this case the State) seeking to pierce the privilege must:
(1) advance a legitimate need for the evidence; (2) show that the evidence is relevant and material to the issue before the court; and (3) establish that the evidence cannot be secured from a less-intrusive source. In re Kozlov, 79 N.J. 232, 243-44 (1979).
Defendant primarily argues the trial court erred when it allowed his civil attorney to testify in rebuttal that he discussed paragraph nine of the June 12, 2007 order with defendant. To obtain a conviction in this case, the State was required to prove beyond a reasonable doubt that defendant was aware of his legal obligation under paragraph nine of the June 12, 2007 order to place his son's charitable funds "in a joint guardian account [with the maternal grandmother] and Tubal Eduardo as co-holders of the account." Defendant's civil attorney was the only person who could verify defendant knew he was not authorized to use his son's funds for his own purposes prior to his receipt of the funds in September 2007. Under these circumstances, the trial court correctly concluded the State satisfied the Kozlov test for piercing the attorney-client privilege.
Moreover, even if we were to assume the civil attorney's testimony violated the attorney-client privilege, we would not disturb the jury verdict. Under Rule 2:10-2, we regard any error or omission as harmless "unless it is of such a nature as to have been clearly capable of producing an unjust result." "The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973) (citing State v. Macon, 57 N.J. 325, 335-36 (1971)). In this case, even without the civil attorney's testimony, there was sufficient circumstantial evidence to sustain defendant's conviction and the alleged error was not "clearly capable of producing an unjust result." R. 2:10-2.
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