STATE OF NEW JERSEY v. DENISE CARRINGTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENISE CARRINGTON,

Defendant-Appellant.

____________________________________

June 10, 2016

Submitted May 31, 2016 Decided

Before Judges Sabatino and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-08-2371.

Joseph E. Krakora, Public Defender, attorney for defendant (Stefan Van Jura, Deputy Public Defender II, of counsel and on the brief).

MaryEva Colalillo,Camden CountyProsecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant Denise Carrington was convicted of two counts of simple assault, N.J.S.A. 2C:12-1(a)(1) and (2), and unlawful possession of a knife, N.J.S.A. 2C:39-5(d), in connection with a domestic violence incident she reported to 9-1-1. The trial court merged the two assault counts and sentenced defendant to seven days of time she previously served in the county jail, concurrent with an identical "time served" sentence on the weapons count.

The sole issue defendant attempts to raise on this direct appeal is her claim that her defense counsel should have been disqualified because years earlier he had represented the State's testifying detective on an unrelated matter. Because the present record from the trial transcripts is inadequate for us to review this disqualification issue, we affirm defendant's conviction and sentence specifically without prejudice to her ability to raise the issue anew in a petition for post-conviction relief ("PCR"), through which process an appropriate amplified record may be developed.

I.

The State's proofs at trial presented the following facts. At approximately 9:39 p.m. on December 14, 2012, defendant called 9-1-1. Much of the call was indecipherable, but from what could be understood, defendant reported to the dispatcher that she was currently at a residence in Camden. Apparently referring to her boyfriend with whom she had an intermittent relationship, defendant told the dispatcher, "he's on . . . drugs," "he went out[side]," and that she was "bleeding." Defendant never identified who "he" was, and the call ended without any further information given. An ambulance and police were dispatched to the address provided by defendant.

The police arrived at the residence approximately three to four minutes after being dispatched and found defendant. One of the investigating officers, Detective Mark Saunders,1 recalled that when he approached the house, he observed a trail of blood that went from the front porch through the vestibule, living room, and dining room to the kitchen. More blood was found on various items of furniture, including inside the refrigerator, and other surfaces throughout the home.

Saunders questioned defendant, who was sitting in the dining room with two other officers who had arrived shortly before the detective. Defendant appeared to the officers to be intoxicated. Saunders smelled alcohol on her person and witnessed her behaving in a drunken and erratic manner. Defendant had no injuries, and the officers did not observe any blood on her clothing. There were no signs she had been involved in a struggle.

When asked where all the blood had come from, defendant replied that it was her boyfriend's blood, but that she did not know where her boyfriend had gone. She provided no further information, and Saunders apparently felt it was no longer worth questioning defendant in her then-existing state. Saunders then contacted his sergeant and requested that a crime scene unit come to take photographs because he was "not going to leave [the] house with all [that] blood [there]."

While making that request to his sergeant, Saunders heard a report of a stabbing victim at a nearby hospital emergency room over his police radio. The detective went to the emergency room, where he found defendant's boyfriend. The boyfriend had several superficial knife wounds to his wrists and arms, the most serious of which required three stitches to close. More specifically, the boyfriend had "[s]ix parallel lacerations to the left wrist on the side closest to the palm" with "the laceration farthest from the center of the body sever[ing] all layers of skin, but [without] damage [to] underlying structures." The five wounds that did not receive stitches required no treatment. The parties stipulated to the boyfriend's injuries at trial, and conceded that he has recovered without any lasting physical effects.

Saunders took a recorded statement from the boyfriend at the hospital. In the recording, the boyfriend told Saunders that defendant had cut him with a steak knife approximately four times during a verbal argument.

Defendant was subsequently charged with two counts of aggravated assault, a count of unlawful possession of a weapon (i.e., the knife), and possession of a weapon for an unlawful purpose. The State presented two witnesses at trial, Saunders and the boyfriend. All the details of the crime scene and the victim's injuries we have previously described, with the exception of Fowler's statement to Saunders, were related by Saunders during direct examination, or by stipulation. Various photographs of the blood splatters in each of the rooms of the home were admitted into evidence, using Saunder's testimony as a foundation. The 9-1-1 recording was also admitted by stipulation.

In his cross-examination of Saunders, defense counsel went over certain details of the detective's direct testimony. The cross pointed out that the detective did not personally search for the alleged weapon2 and did not include details in his report regarding allegations of defendant's intoxication.

The boyfriend testified that he had known defendant for over twenty years and that they had a son together, who was twenty-four years old at the time of trial. On the date the boyfriend was cut, he and defendant were living together at his home. He stated that they had an "off and on" romantic relationship, but that, at the time of trial, they were "just friends."

The boyfriend admitted that on December 14, 2012, he and defendant had an argument in which defendant accused him of being "a drug addict, a dope addict," while "holler[ing] in [his] ear at the top of [her] lungs[.]" He also admitted that he had abused drugs "at times," but that he was "drug free" at the time of the altercation. On the day of the incident, he claimed that he was not under the influence of any drugs, and had only one can of beer that day.

The two participants in the argument continued to yell, even after the boyfriend went out onto the porch to try and avoid defendant. The argument devolved into a fight over keeping the front door open, and continued to escalate. The boyfriend claimed that defendant, who he characterized as "toasted drunk," may have then "nicked the door" with her lip, which he believed drew a small amount of blood. He testified that defendant subsequently told him "Oh, I got your ass now, I'm gonna call the cops and have your ass locked up[.]"

During the course of his testimony, the boyfriend resisted admitting that he had told police that defendant cut him with a knife, contending instead that he had cut himself. At first the boyfriend claimed that he simply could not recall his conversation with the police, and then when confronted by the transcript of the recorded interview, opined that the transcript "[m]aybe possibly" was not accurate. The prosecutor then read the recorded statements to the boyfriend, and the boyfriend begrudgingly conceded that the transcript likely reflected what he had told the detective at the time.

The boyfriend continued to claim on direct examination that he had purposely cut himself during the argument so as to counter any allegedly false accusations of domestic violence that he feared defendant would make against him. He alleged that his statement to police was a lie. The boyfriend's recollection of his alleged self-mutilation did not, however, coincide with the factual details of his injuries and medical treatment to which the parties had stipulated. Nevertheless, the boyfriend admitted that defendant had a knife in her hand during the argument and was behaving like "a raving maniac." As for the volume of blood found in the home, the boyfriend claimed that he was "sweating a lot" and had taken aspirin. He stated that he then left the home and rode a bicycle to the hospital, which was a block and a half away.

When defense counsel attempted on cross-examination of the boyfriend to clarify the contradictory account of his own injuries, the most the boyfriend would say was that he could not recall ever telling police "I think it was four [cuts]" at the hospital. Defense counsel was, however, able to imply by his questions that the boyfriend may only have considered the most serious of the wounds to be a "cut." On re-direct, the boyfriend admitted that defendant was in the kitchen when she was brandishing the knife.

The prosecution rested its case with the boyfriend's testimony, and defendant presented no witnesses. The jury returned a guilty verdict against defendant for two lesser-included counts of simple assault, and one count of unlawful possession of a weapon. Defendant was found not guilty of possession of a weapon for an unlawful purpose.

II.

A.

Defendant's sole contention on appeal is that she received ineffective assistance of counsel from her trial lawyer, an assistant deputy public defender ("defense counsel"). More specifically, she argues that defense counsel had a conflict of interest due to his prior representation of the State's witness, Detective Saunders, in an unrelated matter, depriving her of a fair trial. She further argues that the record lacks evidence that she waived the conflict, necessitating reversal and a new trial.

The conflict issue arose in the following manner. According to defense counsel, he had previously represented Saunders in a criminal matter sometime in 1998, before Saunders became a police officer. Defense counsel apparently did not remember the prior representation until Saunders noticed him outside the courtroom and reminded him. Defense counsel then immediately notified the court and opposing counsel before the trial began, and later placed the issue on the record before the initial jury instructions were given. The colloquy went as follows

[DEFENSE COUNSEL]: Yes, sir. Thank you, Judge. Judge, when I got onto the floor there was a gentleman who recognized me. It turns out it's Mr. Saunders . . . . He's present to testify, and without going into the details, . . . he had reminded me that I had represented him back in 1998, prior to his becoming a police officer, and his matter actually went to trial. There was an acquittal.

It's not going to stop me from doing what I need to do in the trial, but I thought I should advise all the parties of that fact.

THE COURT: And I assume that you're you're not going to use any information that he may have given you at that time in this case?

[DEFENSE COUNSEL]: I don't see how it's relevant, Judge. It was it actually was an acquittal also. So

THE COURT: Yeah.

[DEFENSE COUNSEL]: But, the more importantly, I'm going to do whatever I need to do when he's testifying, and it has you know, what's past is past. But I I've advised Ms. Carrington of it, just so that because I thought everybody should be aware.

THE COURT: Prosecutor, any any position on that?

MR. ANGERMEIER: No, Judge. I leave [it to] your discretion. I have no problem with the witness testifying. I have no problem with [defense counsel]

THE COURT: Okay.

MR. ANGERMEIER: cross-examining him as he sees fit. I you know, with the representation that

THE COURT: Okay.

MR. ANGERMEIER: none of the prior information is relevant.

THE COURT: Okay. Are we ready to proceed then?

MR. ANGERMEIER: We are, Judge.

No further discussion occurred. The court did not have defendant waive the conflict on the record, and it is not entirely certain that she was even present for the colloquy, which occurred after a lunch recess. Beyond stating that he "advised Ms. Carrington of it," defense counsel never explicitly stated that defendant understood the potential ramifications or that she had agreed to a waiver.

B.

Under both the federal and New Jersey constitutions, criminal defendants have the right to the effective assistance of counsel. State v. Cottle, 194 N.J. 449, 466 (2008). Generally, for counsel to be "effective" under our State Constitution, it must provide the client "undivided loyalty, '"unimpaired" by conflicting interests.'" Id. at 466-67 (quoting State v. Norman, 151 N.J. 5, 23 (1997)).

However, with one exception not applicable here, "a great likelihood of prejudice must be shown . . . to establish constitutionally defective representation of counsel." Id. at 467-68. In addition, the conflict must be based in fact, rather than merely create the appearance of impropriety. State v. Hudson, 443 N.J. Super. 276, 289 (App. Div. 2015) (emphasis added) ("Disqualification must be based on an actual conflict or potential conflict of interest, as now defined by the RPCs."); see also City of Atl. City v. Trupos, 201 N.J. 447, 464 (2010) (observing that the "appearance of impropriety standard" language was eliminated in 2004 from the Rules of Professional Conduct and cautioning against continued reliance on pre-2004 precedent, which "has been influenced heavily by [that] now-rejected" language). "[W]hether counsel should be disqualified is, as an issue of law, subject to de novo plenary appellate review." Trupos, supra, 201 N.J. at 463.

Under New Jersey's Rules of Professional Conduct (the "RPCs"), "a lawyer shall not represent a client if . . . there is a significant risk that the representation . . . will be materially limited by the lawyer's responsibilities to . . . a former client[.]" RPC 1.7(a)(2) (emphasis added); see also RPC 1.9(a) (emphasis added) (stating a similar prohibition regarding former clients: "A lawyer who has represented a client . . . shall not thereafter represent another . . . in the same or a substantially related matter in which that client's interests are materially adverse to [those of] the former client"). Those responsibilities to former clients include abstaining from "us[ing] information relating to the representation [of the former client] to the disadvantage of [that] client" except as permitted under the RPC, and avoiding the disclosure of "information relating to the representation[.]" RPC 1.9(c)(1)-(2).

When such a conflict arises between a current and former client, counsel must obtain "informed consent, confirmed in writing, after full disclosure and consultation" from the current client in order to continue with the representation. RPC 1.7(b)(1). If the representation is "materially adverse" to the former client, then informed, written consent must also be obtained from that former client. RPC 1.9(a). There is a strong presumption against waiver of a defendant's "constitutional right to independent counsel," and "[i]n no event is waiver to be found from a silent record." State v. Bellucci, 81 N.J. 531, 544 (1980).

Here, it is unclear from the information provided in the present record whether defense counsel's prior representation of Saunders created an actual disqualifying conflict of interest. No details are given regarding the prior criminal matter that involved Saunders. It is impossible to determine with confidence if there is a conflict "based in fact" that prejudiced or had a "great likelihood" of causing prejudice to defendant. See Cottle, supra, 194 N.J. at 466-68; Trupos, supra, 201 N.J. at 464. Although defense counsel represented to the court that defendant was advised of the potential conflict, implying that waiver occurred, there is no direct evidence of such waiver in the record. See Bellucci, supra, 81 N.J. at 544. Indeed, it is not even certain that defendant was present in the courtroom when he made that representation.

Given the constraints of the record, we decline to resolve the conflict issue in this direct appeal. It may well be that defense counsel's prior representation of Saunders was too remote to be of significance here and did not provide defense counsel with any information that would have "materially limited" his ability to impeach Saunders for defendant's benefit. Nor is it self-evident that such additional impeachment, had it been pursued, would have likely been effective or would have tipped the balance in this case in which Saunders was largely called as a foundational witness and the key State witness was instead the victim-boyfriend. We simply have insufficient information to make this assessment of materiality and prejudice.

Consequently, we affirm defendant's conviction and sentence, without prejudice to her ability to file a PCR petition to present and amplify her allegations of a conflict of interest beyond the existing trial record. See State v. Preciose, 129 N.J. 451, 460 (1992) (favoring the PCR process as a means to address claims seeking to set aside convictions, where the claims entail the development of facts outside of the trial record); see also State v. O'Neil, 219 N.J. 598, 610 (2014).

Affirmed.

1 During trial, Saunders testified that he was a retired police officer.

2 The search was performed by other officers and the crime scene unit while Saunders was taking the boyfriend's statement at the hospital. Presumably, no weapon was recovered since none was marked as an exhibit or admitted into evidence.