STATE OF NEW JERSEY v. VICTOR MCCARGO

NOT FOR PUBLICATION WITHOUT THE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.

VICTOR MCCARGO,

Defendant-Appellant.

___________________________________________________

August 14, 2014

Submitted February 25, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 95-04-0862.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Victor McCargo was convicted of murder and related charges in the August 27, 1994 death of Ronald Shaw. The trial judge sentenced defendant to a term of life imprisonment with a thirty-year period of parole ineligibility. In an unpublished opinion, we affirmed defendant's conviction and sentence. State v. Victor McCargo, No. A-0998-98 (App. Div. Nov. 21, 2000). The Supreme Court denied defendant's petition for certification. 167 N.J. 634 (2001). Defendant thereafter filed a petition for post-conviction relief that was denied by the Law Division without an evidentiary hearing. In an unpublished opinion, we reversed and remanded the matter for further proceedings. State v. Victor McCargo, No. A-5691-06 (App. Div. Nov. 16, 2009) (slip op. at 10).

We provide some background before turning to the events that followed our remand and led to the present appeal. Defendant's PCR petition, filed in 2001, was supported by a certification by Jaime Kaigh, Esq., from the Office of the Public Defender, "lead counsel during [the] pre-trial, trial and sentencing phases" of defendant's case. Kaigh further certified that he "believe[d] [he] discussed the possibility of raising an intoxication defense with Jeffrey Klavens, . . . who served as co-counsel . . . ." Because Klavens handled the direct examination of defendant at trial, Kaigh believed Klavens would discuss the issue with defendant, and Kaigh had no recollection of ever speaking to defendant about "the possibility or feasibility of raising an intoxication defense in this matter[,]" or discussing it with Klavens. In light of the certifications filed by defendant, his brother and a friend, we concluded that Kaigh's certification alone was inadequate to determine, as the PCR judge had, that "counsel considered the issue and selected one avenue of defense over another." McCargo, supra, slip op. at 8.

We also noted that defendant raised an additional allegation in his petition that PCR counsel failed to present, and the PCR judge failed to address. Ibid.

[T]he attorney who served as co-counsel at trial had a conflict of interest in that he had submitted an employment application to the prosecutor's office which was prosecuting defendant. In his papers, [defendant] alleged that co-counsel did not appear at sentencing because he was attending a job interview that day with the prosecutor's office. In our review of the record on appeal, we have noted that the trial transcripts indicate that co-counsel appeared every day of the trial except for the day of sentencing. The transcript for that day contains no mention of his presence.

[Ibid.]

We concluded defendant's allegation in this regard "raise[d] troubling issues of conflict of interest which we [could] not disregard." Id. at 9. However, "[b]ecause there [was] no record on th[e] question, we [were] unable to conclude whether it [was] entirely devoid of merit or whether defendant [was] entitled to further relief." Ibid.

On November 14, 2011, Judge Michele M. Fox, who was not the trial or PCR judge, conducted an evidentiary hearing on our remand. At the start, PCR counsel informed Judge Fox that he intended to call Klavens as his only witness and that after fully discussing the matter with defendant, it was defendant's decision not to testify at the hearing.

We synopsize Klavens' testimony, deferring as appropriate to the factual findings made by Judge Fox, and set forth in her oral opinion of January 6, 2012, from which we quote as necessary. See State v. Feaster, 184 N.J. 235, 278 (2005) (noting appellate courts defer to the factual findings made by the PCR judge following an evidentiary hearing when they are supported by adequate, substantial and credible evidence).

Judge Fox found Klavens to be a credible witness. Klavens was brought into the case by Kaigh and first met with defendant approximately three weeks before trial. He "carefully reviewed the discovery with his client, and . . . discussed with him the fact that asserting an intoxication defense would weaken and undermine [the] self-defense scenario[] suggested by . . . defendant's statement to the police." Klavens also discussed with defendant "those aspects of discovery that would have been inconsistent with an intoxication defense[,]" and he also spoke to Kaigh about it. "[B]oth agreed that . . . that type of a defense would not be as feasible as a self[-]defense assertion." Judge Fox concluded

based upon the testimony given by . . . Klavens under oath at the evidentiary hearing, as well as a review of th[e] file, that trial counsel adequately discussed the possibility of intoxication as a defense with co-counsel and . . . defendant, and only after such discussions with co-counsel and . . . defendant, an election was made to pursue a self[-]defense assertion.

Turning to the second issue, Klavens' possible conflict of interest, Judge Fox found that Klavens had sent out several resumes seeking employment in December 1996, one of which was sent to the Camden County Prosecutor's Office (CCPO), the same office that represented the State at defendant's trial, and for which Klavens had worked a decade earlier. Sometime during the week before trial commenced on May 20, 1997, Klavens was invited for an interview. Klavens contacted the CCPO and selected June 9, 1997 as the interview date, believing defendant's trial would be completed by then. Before the interview, the CCPO contacted Klavens and asked if he was willing to accept a position at the entry salary level, with a substantial increase the following year. Klavens responded by saying he was unwilling "to accept a position under those circumstances."

Klavens nevertheless intended to go to the interview, and he advised defendant of his intention on the morning of June 9, 1997. The transcript of the June 9 court session reveals that Klavens was present in court that day when the jury was charged and deliberated; he also was present when the judge responded to a jury question.

When he spoke with defendant, Klavens told his client that he was not accepting any position with the CCPO, and that the interview would not affect his representation of defendant. Klavens told defendant that the best thing he (Klavens) could do to enhance his job prospects would be to secure an acquittal for defendant. According to Klavens, defendant raised no concerns and found it humorous that Klavens intended to turn down any entry level offer. Klavens denied defendant's assertion that he was absent from defendant's sentencing, or that Klavens' pending application and interview with the CCPO "compromise[d] his representation of . . . defendant."

Judge Fox noted that the situation did not present a "per se conflict of interest," and therefore, quoting State v. Norman, 151 N.J. 5, 25 (1997), the court must assess "'the potential or actual conflict of interest'" and "'if significant, a great likelihood of prejudice must be shown . . . to establish constitutionally defective representation of counsel.'" Judge Fox observed that no reported New Jersey decision was specifically on point.

She therefore considered ABA Comm. on Ethics & Prof l Responsibility, Formal Op. 96-400 (1996), entitled "Job Negotiations with Adverse Firm or Party." ("ABA Formal Opinion"). Judge Fox noted that critical to whether a lawyer's continuing representation was "materially limited" by pursuit of employment with an adversary firm was consideration of whether the lawyer might seek to "curry favor with or not . . . antagonize [a] prospective employer." She accepted Klavens' credible testimony that he had no intention of accepting the entry-level position, and knew before any interview that "he would not take a position with the [CCPO]."

The judge also noted that defendant failed to "identify" how Klavans' representation was in any way "materially limit[ed]" by his pending application and interview. She concluded that Klavans had not committed an ethical violation, that his application and interview with the CCPO did not create a conflict of interest that was likely to prejudice defendant. She entered an order on January 6, 2012, denying defendant's PCR petition, and this appeal followed.

Before us, defendant raises the following points:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF SINCE THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO THROUGHLY INVESTIGATE AND PRESENT AN INTOXICATION DEFENSE ON THE DEFENDANT'S BEHALF AT TRIAL, EITHER IN CONJUNCTION WITH THE DEFENSE OF SELF DEFENSE ACTUALLY ASSERTED AT TRIAL, OR IN LIEU OF SUCH A DEFENSE, WHICH WAS UNTENABLE UNDER THE CIRCUMSTANCES OF THE CASE.1

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF AS A RESULT OF TRIAL COUNSEL'S APPLICATION FOR EMPLOYMENT WITH THE PROSECUTOR'S OFFICE WHICH WAS IN EFFECT DURING THE COURSE OF THE DEFENDANT'S TRIAL, THEREBY CREATING AN INHERENT CONFLICT OF INTEREST.

In a pro se supplemental brief, defendant raises the following argument:

POINT ONE

THE PCR COURT ERRED IN DENYING THE DEFENDANT'S CLAIM THAT HE WAS SUBJECTED TO AN ADVERSE CONFLICT OF INTEREST, AND BY APPLYING AN ERRONEOUS STANDARD OF REVIEW BY NOT ADDRESSING THE CONFLICT UNDER PRESUMPTION OF PREJUDICE STANDARD, THEREFORE THE CONVICTION SHOULD BE REVERSED.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

"In determining whether defense counsel's presentation was deficient, '[j]udicial scrutiny . . . must be highly deferential', and must avoid viewing the performance under the "distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-319 (2005) (quoting Norman, supra, 151 N.J. at 37).

Because of the inherent difficulties in evaluating a defense counsel's tactical decisions from his or her perspective during trial, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

[Id. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694-95).]

"Counsel's 'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable.'" State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002) (alterations in original) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed 2d at

695).

Defendant argues that trial counsel provided ineffective assistance because self-defense was not a viable defense, and intoxication, although not a complete defense, would have potentially negated the mental state necessary to have found defendant guilty of purposeful or knowing murder, or felony murder. This argument, however, is a textbook example of second-guessing the strategic decisions of trial counsel made after adequate investigation and preparation.

At trial, defendant testified and explained that the victim had approached defendant and others armed with a gun. Although the victim left and entered his car, defendant believed he still had the gun and intended to use it. When the victim approached in his car and engaged defendant again, defendant shot first. At the remand hearing, Klavens explained that he did not pursue an intoxication defense because he believed the assertion of such a defense would undermine the self-defense claim. He further testified that he discussed this fully with defendant. As already noted, there was no other evidence adduced at the remand hearing, since defendant chose not to testify or produce any other witnesses. Under these circumstances, we concur with Judge Fox, who concluded that defendant failed to establish a claim of ineffective assistance of counsel on this point.

We turn to defendant's second argument. Defendant contends that, despite Judge Fox's finding to the contrary, it was unlikely that Klavens actually spoke to him about the interview with the CCPO on June 9, and, in fact the interview most likely occurred earlier in the trial. Defendant claims there was no "legitimate justification" why Klavens waited to tell him of the interview, and the delay indicates that Klavens was aware of "at the very least, an appearance of impropriety." Defendant contends there was "a substantial likelihood of prejudice," once again citing only Klavens' failure to raise the intoxication defense.

In Norman, the Court reaffirmed its earlier holding in State v. Bellucci, 81 N.J. 531, 538 (1980).

Bellucci . . . created a two-tier system for evaluating conflict-of-interest claims, an approach to which we have continued to adhere. If a private attorney, or any lawyer associated with that attorney, is involved in simultaneous dual representations of codefendants, a per se conflict arises, and prejudice will be presumed, absent a valid waiver. Otherwise, the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel.

[Norman, supra, 151 N.J. at 24-25 (citations omitted).]

Here, since there was no dual representation, Judge Fox properly concluded there was no per se conflict with presumed prejudice to defendant.

Nevertheless, "[t]he paramount obligation of every attorney is the duty of loyalty to his client." State v. Cottle, 194 N.J. 449, 463 (2008). This basic maxim finds its voice in RPC 1.7. At the time of trial, RPC 1.7(b) provided that "[a] lawyer shall not represent a client if the representation of that client may be materially limited . . . by the lawyer's own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after a full disclosure of the circumstances and consultation with the client . . . ." (Emphasis added).2 The latest iteration of the RPC provides that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if . . . there is a significant risk that the representation of one or more clients will be materially limited . . . by a personal interest of the lawyer." RPC 1.7(a)(2) (emphasis added).

RPC 1.7(a)(2) "is typically implicated when the lawyer stands to derive some benefit, in addition to a legal fee, from the matter or transaction with respect to which he or she is advising the client." Michels, New Jersey Attorney Ethics 19:3-2 (2013). However, the RPChas been applied in other circumstances where the benefit to the attorney was not financial in nature, or tied to the particular matter in which he or she was representing the client.

For example, in Cottle, defense counsel never disclosed to the defendant that he too was a criminal defendant being prosecuted by the same county prosecutor's office. 194 N.J. at 452. The attorney was enrolled in the Pretrial Intervention Program and was required regularly to report to the prosecutor's office. Ibid. The Court held this presented a "per se conflict of interest," such that "[w]ithout an informed waiver made in court and on the record, prejudice will be presumed, rendering the representation ineffective." Ibid. (emphasis added). As the Court noted,

An attorney should never place himself in the position of serving a master other than his client or an interest in conflict with his client's interest. Surely, the attorney must never be perceived as having a reason to curry some personal favor with the prosecutor's office at the expense of his client.

[ Id. at 463-64.]

The Court has since recognized Cottle to be one of only two cases decided since Fritz in which prejudice was presumed. State v. Miller, 216 N.J. 40, 60 (2013).

On the other hand, in State v. Davis, 366 N.J. Super. 30, 42 (App. Div. 2004), we concluded that an attorney's civil suit against the Office of the Public Defender did not present a disqualifying conflict of interest to his continued representation of a criminal defendant as a pool attorney. We rejected the State's concerns about the potential for ineffective assistance of counsel claims as "speculative and thus insufficient to constitute grounds for [the attorney's] disqualification." Id.at 37.

In Davis, id. at 40, we cited with approval the district court's opinion in Essex County Jail Annex Inmates v. Treffinger, 18 F. Supp. 2d 418 (D.N.J. 1998). The court there noted,

Because of the virtually limitless cases in which a "conflict" may theoretically arise when a lawyer's self-interest is implicated, there is a very real danger of analyzing these issues not on fact but on speculation and conjecture. Accordingly, when a conflict of interest issue arises based on a lawyer's self-interest, a sturdier factual predicate must be evident than when a case concerns multiple representation. Only by requiring a more specific articulation of the facts giving rise to a conflict situation can courts refrain from effectively "straightjacket[ing] counsel in a stifling, redundant . . . code of professional conduct." Supposition and speculation, therefore, will simply not do.

[Treffinger, supra, 18 F. Supp. 2d at 432 (quoting Beets v. Scott, 65 F.3d 1258, 1270 (5th Cir. 1995), cert. denied, sub nom Beets v. Johnson, 517 U.S. 1157, 116 S. Ct. 1547, 134 L. Ed. 2d 650 (1996)).]

Noting there was no reported case precisely on point, Judge Fox utilized the ABA Model Rules of Professional Conduct, and commentary thereto, for guidance. Our "Court adopted the ABA . . . Model Rules . . . in 1984 'to harmonize New Jersey's standards with the Model Rules and to provide clear, enforceable standards of behavior for lawyers.'" In re Opinion No. 17-2012 of the Advisory Comm., ___ N.J. ___, ___ (2014) (quoting State v. Rue, 175 N.J. 1, 14 (2002)).

In this case, the question is whether, under the former RPC 1.7(b), Klaven's representation of defendant may have been "materially limited" by any personal interest Klavens had in obtaining employment with the CCPO, or, under current RPC 1.7(a)(2), whether there was an actual or potential conflict of interest that posed a "significant risk" his representation of defendant would "be materially limited." See Norman, supra, 151 N.J. at 25 (holding that the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown to establish constitutionally defective representation) (emphasis added).

Commentary to ABA Model Rule 1.7 addresses what constitutes "a significant risk of a material limitation." In re Opinion No. 17-2012, supra, ___ N.J. at ___.

[T]here must be "a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests." To identify such a risk, "[t]he critical questions are the likelihood that a difference in interests" will arise, and "if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client."

[Ibid. (quoting ABA Model Rule 1.7, comment 8).]

Of course in this case, the issue presented did not involve the competing interests of two clients, as was the case in In re Opinion No. 17-2012. The commentary to ABA Model Rule 1.7 recognizes that "when a lawyer has discussions concerning possible employment with . . . a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client." ABA Model Rule 1.7, comment 10.

However, as Judge Fox noted, the ABA Formal Opinion provides that "[a] possible conflict does not itself preclude the representation," and "[t]he critical questions are the likelihood that a conflict will eventuate, and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose course of action that should reasonably be pursued on behalf of the client." Id. at 3-4. These two issues are informed by "two overriding factors," i.e., "the nature of the lawyer's role in the representation of the client; and the extent to which the lawyer's interest in the firm is concrete, and has been communicated and reciprocated." Id. at 4. "[I]f a lawyer has played a limited, but now concluded role for a client, there is ordinarily no basis for concluding that the lawyer's job search will prejudice the interests of the client . . . ." Ibid.

Additionally, "an initial solely informational discussion might be agreed to and even occur without implicating Rule 1.7(b)." Id. at 5 n.9. "For [a] lawyer . . . who is looking at options in a preliminary fashion, such purely informational discussions might well not 'materially interfere with' his or her judgment and, therefore, not trigger the consultation and consent required by Rule 1.7(b)." Ibid.

We cannot conclude on this record that Klavens actually secured defendant's consent pursuant to former RPC 1.7(b). However, Judge Fox found that there was not a significant risk that Klavens' representation of defendant would be materially limited, because Klavans decided before going to the interview that he would not accept the position, if indeed one was offered. Moreover, defendant failed to establish the "great likelihood of prejudice," Norman, supra, 151 N.J. at 25, because the only specific, substantive claim of ineffective assistance was Klavens' failure to assert the intoxication defense, something Judge Fox already decided was not evidence of deficient performance. We agree with Judge Fox's analysis of the issue.

Affirmed.

1 We have omitted the sub-points of this argument.

2 At the time, our RPC mirrored the language of ABA Model Rule 1.7 which provides, "[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's . . . own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation . . . ."