STATE OF NEW JERSEY v. BERNARD GREEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0745-07T40745-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BERNARD GREEN and

RICHARD JENKINS,

Defendants-Appellants.

___________________________________

 

Argued April 2, 2008 - Decided

Before Judges Wefing, R. B. Coleman, and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, No. 06-10-1039.

Richard W. Berg argued the cause for appellants

(Robin Kay Lord, attorney; Mr. Berg and Ms. Lord,

of counsel and on the brief).

Kathleen Petrucci, Assistant Mercer County

Prosecutor, argued the cause for respondent

(Joseph L. Bocchini, Jr., Prosecutor, attorney;

Ms. Petrucci, of counsel and on the brief).

PER CURIAM

Defendants appeal from a trial court order disqualifying Robin Kay Lord, Esq., from representing defendant Richard Jenkins in Indictment 06-10-1039 and defendant Bernard Green in Indictments 06-02-0186, 06-03-0314, 06-03-0337, and 06-06-0675. After reviewing the record in light of the contentions advanced on appeal, we reverse.

On June 20, 2005, Otis Jones was shot to death in Trenton, New Jersey, near a housing complex identified as Donnelly Homes. Richard Jenkins was identified as the shooter, and he was arrested on June 22, 2005. Upon his arrest, he retained Robin Kay Lord, Esq., to represent him. The State continued its investigation into this shooting, and the grand jury did not return an indictment in connection with this shooting until October 13, 2006, when it issued Indictment 06-10-1039. This indictment named Richard Jenkins and Bernard Green as co-defendants, charging both men with conspiracy (N.J.S.A. 2C:5-2); murder (N.J.S.A. 2C:11-3(a)(1) and 2C:2-6); possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a) and 2C:2-6); and unlawful possession of a weapon (N.J.S.A. 2C:39-5). Green retained Kelly Anderson Smith, Esq., to represent him in connection with this indictment.

In between the shooting death of Otis Jones and the indictment of Jenkins and Green for the killing, Green was indicted on four unrelated matters: Indictment 06-02-0186 charged Green with terroristic threats (N.J.S.A. 2C:12-3(a)), allegedly committed on May 14, 2005, and Indictment 06-03-0314 charged Green with attempted murder (N.J.S.A. 2C:11-3, 2C:5-1, 2C:2-6), allegedly committed on August 28, 2005. Indictment 06-03-0337 charged Green and Robert Kearse with possession of cocaine (N.J.S.A. 2C:35-10(a)(1) and 2C:2-6); possession of cocaine with intent to distribute (N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), 2C:2-6); possession of cocaine with intent to distribute within one thousand feet of school property (N.J.S.A. 2C:35-7.1, -5(a)(1), -5(b)(3), and 2C:2-6); possession of cocaine with intent to distribute within five hundred feet of a public housing facility (N.J.S.A. 2C:35-7.1, -5(a)(1), -5(b)(3), 2C:2-6); possession of marijuana with intent to distribute (N.J.S.A. 2C:35-5(a)(1), -5(b)(12), 2C:2-6); possession of marijuana with intent to distribute within one thousand feet of school property (N.J.S.A. 2C:35-7, -5(a)(1), -5(b)(12), 2C:2-6); possession of marijuana with intent to distribute within five hundred feet of a public housing facility (N.J.S.A. 2C:35-7.1, -5(a)(1), -5(b)(12), 2C:2-6); and conspiracy (N.J.S.A. 2C:5-2). This indictment referred to conduct on June 22, 2005. Finally, Indictment 06-06-0675 charged Bernard Green with possession of heroin (N.J.S.A. 2C:35-10(a)(1), 2C:2-6); possession of heroin with intent to distribute (N.J.S.A. 2C:35-5(a)(1), -5(b)(3), 2C:2-6); possession of cocaine (N.J.S.A. 2C:35-10(a)(1), 2C:2-6); possession of cocaine with intent to distribute (2C:35-5(a)(1), -5(b)(3), 2C:2-6); and maintaining a narcotics nuisance (N.J.S.A. 24:21-21(a)(6), 2C:2-6). This final indictment referred to conduct on May 12, 2005. All of these indictments were returned prior to the indictment charging Jenkins and Green with the killing of Jones and for each of them, Green retained Robin Kay Lord, Esq., to represent him.

The indictment with respect to the killing of Otis Jones was returned on October 13, 2006. On February 5, 2007, the State filed a motion seeking to disqualify Robin Kay Lord, Esq., from representing defendant Jenkins against these charges. According to the State, her representation of Green on separate, unrelated indictments posed an irremediable conflict of interest.

According to the record before us, the State developed its investigation into the shooting of Jones through certain conversations for which the State had obtained wiretaps. The State asserted that its investigation into the shooting of Jones revealed that Lishawn McRae, a friend of Jones, had borrowed a gold chain from him, and while wearing the chain in the vicinity of the Donnelly Homes, was robbed by members of the GKB (Gangster Killer Bloods) set of the Bloods gang. (This group is also referred to at various points as the G-Shine Bloods.) Jones and McRae went to the neighborhood in which the robbery had occurred in an apparent attempt to recover the necklace but were unsuccessful. The State contends that Green and Jenkins are members of the GKB, that Green is a capo in the GKB gang and that he ordered Jenkins to shoot Jones because Jones was disrespectful to the GKB when he tried to retrieve the gold chain that had been stolen from McRae.

Prior to the hearing on the State's motion to disqualify Ms. Lord from representing Jenkins against the charges in connection with the death of Jones, both Jenkins and Green submitted signed certifications in which each waived whatever potential conflict of interest could exist as a result of her representation of Jenkins. Green's certification stated in pertinent part as follows:

1. I am the Defendant in the above-referenced matter and make this certification in opposition to the State's motion to have Robin Lord removed from representing Richard Jenkins in this matter.

2. Robin Lord represents me in unrelated matters in Mercer County and has for a period of time. I have complete confidence in her abilities, integrity and professionalism.

3. In this matter I am represented by Kelly Anderson Smith, Esq.

4. The first time I became aware that I was a defendant in this case was when I was indicted. I was never originally charged with this matter. At that time Ms. Lord was already representing Mr. Jenkins in this case as he was charged upon his arrest, pre-indictment. Accordingly, she and I never engaged in confidential communications about this case.

5. I have been advised by both Ms. Lord and Ms. Anderson-Smith that the State is trying to remove Ms. Lord from this case. I am aware that the State is alleging a conflict of interest as she represents Mr. Jenkins here.

6. I wish to have Ms. Lord continue to represent Mr. Jenkins in this case and hereby waive any conflict of interest that the State alleges might exist. I make this waiver knowingly and intelligently and after consulting with my attorney Ms. Anderson-Smith.

7. Additionally, I will not be testifying against Mr. Jenkins in this case, as I know nothing about the murder and have been wrongly accused of participating in this crime.

The certification of Jenkins was to the same effect. It provided in pertinent part:

1. I am the Defendant in the above-referenced matter and make this certification in opposition to the State's motion to have Robin Lord removed from representing me in this matter.

2. Upon my arrest, I retained Robin Lord to represent me in this case. She is one of the best criminal defense attorneys around. I have complete confidence that she has and will continue to represent me diligently and aggressively and am very happy with her services and our relationship.

3. I have been advised by Ms. Lord that the State is trying to remove her from this case. I am aware that the State is alleging a conflict of interest as she represents Mr. Green in other matters.

4. I wish to have Ms. Lord continue to represent me in this case and hereby waive any conflict of interest that the State alleges might exist. I make this waiver knowingly, intelligently and voluntarily.

5. Additionally, I have been advised of the plea offer in this case, which includes that I testify against Mr. Green. Since I know nothing about the murder and have been wrongfully accused of committing this offense, I could not possibly testify against him.

Both certifications were prepared by Robin Lord and were executed the same day. Although the certifications do not address the question, there is no indication in the record before us of any relationship, professional or otherwise, between Robin Kay Lord, Esq. and Kelly Anderson Smith, Esq.

Following oral argument on the State's motion, the trial court issued its opinion in which it concluded not only that Ms. Lord was disqualified from representing Jenkins in connection with the homicide charges but that she was further disqualified from representing Green in connection with the four unrelated indictments. We granted the motion of Green and Jenkins for leave to appeal.

On appeal, defendants make the following argument.

POINT I THE TRIAL COURT'S ORDER DISQUALIFYING COUNSEL INFRINGED DEFENDANTS' STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO COUNSEL OF THEIR CHOICE AND MUST BE REVERSED

A. THE TRIAL COURT ERRED IN SUA SPONTE DISQUALIFYING COUNSEL FROM REPRESENTING BERNARD GREEN IN UNRELATED MATTERS

B. THE TRIAL COURT ERRED IN DISQUALIFYING COUNSEL FROM REPRESENTING RICHARD JENKINS FOR THE ALLEGED MURDER OF OTIS JONES

Before us, the State continues to rely exclusively on R.P.C. 1.7, as it did before the trial court. R.P.C. 1.7 provides:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) each affected client gives informed consent, confirmed in writing, after full disclosure and consultation, provided, however, that a public entity cannot consent to any such representation. When the lawyer represents multiple clients in a single matter, the consultation shall include an explanation of the common representation and the advantages and risks involved;

(2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(3) the representation is not prohibited by law; and

(4) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

In its opinion setting forth its reasons for granting the State's motion, the trial court noted the possibility of several potential conflicts of interest; in particular, that Jenkins, being represented by Ms. Lord, may be hampered in negotiating a plea bargain and that the parties may assert contradictory defenses. We are satisfied that neither is a sufficient basis to disqualify Ms. Lord, at least at this juncture of the matter.

Before proceeding to a detailed analysis, we note certain guiding principles. Although the right to counsel is fundamental, U.S. Const. amend. VI, N.J. Const. art. I, 10, it is not absolute. Wheat v. United States, 486 U.S. 153, 158-59, 108 S. Ct. 1692, 1696-97, 100 L. Ed. 2d 140, 148 (1988). A court confronted with an application to disqualify a defendant's counsel of choice must steer a difficult course: not depriving a defendant of the attorney whom he wishes to have represent him and yet assuring the fundamental integrity of the trial proceedings. "Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation." State v. Loyal, 164 N.J. 418, 441 (2000) (quoting Wheat, supra, 486 U.S. at 160, 108 S. Ct. at 1698, 100 L. Ed. 2d at 149-50). "[T]he court maintains an independent interest in assuring that conflict-free representation occurs, since the existence of conflict undermines the integrity of the court." State v. Davis, 366 N.J. Super. 30, 38 (App. Div. 2004). "There is no greater impairment of a defendant's constitutional right to counsel than that which can occur when his attorney is serving conflicting interests. The resulting representation may be more harmful than the absence of a lawyer." State v. Carreaga, 249 N.J. Super. 129, 131 (Law Div. 1991) (quoting State v. Bellucci, 81 N.J. 531, 538 (1980)).

In light of the trial court's obligation to protect the integrity of the trial proceedings, a defendant does not have an absolute right to insist that a trial court accept his waiver of his attorney's potential conflict of interest.

[D]efendants do not "have an absolute right, constitutional or otherwise, to have such waivers accepted by a court. A truly knowing and intelligent waiver accepted by the court will insulate a conviction from a later attack. But the perspective of a trial court judge need not be limited to a concern not to have a conviction overturned."

[Carreaga, supra, 249 N.J. Super. at 135-36, (quoting United States v. Flanagan, 679 F.2d 1072, 1076 (3d Cir. 1982), rev'd on jurisdictional grounds, 465 U.S. 259, 104 S. Ct. 1051, 79 L. Ed. 2d 288 (1984)).]

However, because an order disqualifying counsel has profound ramifications for the affected defendant as well as the attorney, "a solid foundation [must] exist for any claim of disqualifying conflict of interest." Davis, supra, 366 N.J. Super. at 39. "[H]ypothetical circumstances are insufficient . . . ." Id. at 40-41.

Having reviewed this record, we are satisfied that the State put forth an insufficient basis to justify the relief it sought. While Jenkins' insistence that he is not interested in a plea bargain may frustrate the State's strategy, he is under no obligation to further that strategy if he does not perceive it to be in his own self-interest.

In its opinion the trial court referred to the possibility of conflicting defenses arising between Jenkins and Green, noting that "[i]t is a common defense in a co-defendant murder trial for each defendant to gain exculpation by blaming the other." While that may indeed be a common strategy, it is by no means universal.

In the factual context of the present matter, as it stands to date, that defense seems unlikely. This is not a situation in which two individuals were apprehended together, and each argues the other committed the criminal act. The allegations against Green are completely distinct from those made against Jenkins. Green is accused of ordering the murder, and Jenkins is accused of carrying it out. Jenkins has asserted the defense of misidentification. His defense that he had no knowledge or role in the murder would not be furthered by asserting that Green ordered the shooting. Similarly, Green's defense that he had no knowledge of the shooting would not be strengthened by adding the caveat that he knew Jenkins was the shooter. Further, the defense of finger-pointing has been specifically abjured here by Ms. Lord.

Where the parties have validly waived any conflict of interest, and representation is not otherwise prohibited, a defendant's right to be represented by his counsel of choice can only be superseded by an actual, direct conflict of interest or a potential conflict of interest that is likely of fruition and rests upon more than speculation and hypothesis. There is to date no actual direct conflict of interest, and the State's claims of a potential conflict of interest rest, in our judgment, upon speculation.

We stress, however, that our ruling in this regard rests only upon the record as it presently exists. We cannot rule out the possibility of future developments that may support a determination that an unwaivable conflict of interest exists, requiring the trial court to intervene and disqualify counsel to assure a fair trial for all participants. We conclude only that that point has not yet been reached, if indeed it ever will be.

The order under review is reversed, and the matter is remanded to the trial court for further proceedings.

 

The indictment recites N.J.S.A. 2C:35-7.1. We assume the reference is inadvertent and that N.J.S.A. 2C:35-7 was intended.

We recognize that in certain of these authorities, the courts were dealing with questions of joint representation. The principles enunciated, however, are fully applicable to the present matter.

(continued)

(continued)

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A-0745-07T4

July 9, 2008