STATE OF NEW JERSEY v. CHANG L. ACUNA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5382-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHANG L. ACUNA,

Defendant-Appellant.

________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR J. MEDINA,

Defendant-Appellant.

_________________________________

May 12, 2014

 

Submitted March 3, 2014 Decided

 

Before Judges Yannotti and Ashrafi.

 

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division,

Bergen County, Indictment Nos. 13-01-0107

and 13-01-0124.

Prosper & Rodriguez, L.L.C., attorneys

for appellants (Susan B. Fagan-Rodriguez,

of counsel and on the brief).

 

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A.
Foddai, Senior Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendants Chang L. Acuna and Victor J. Medina appeal from an interlocutory order of the Law Division disqualifying their retained attorney, Ricardo Rodriguez, from representing both of them in defense of separate indictments. We reverse.

The facts relevant to the issues on appeal are not in dispute. In July 2012, the Bergen County Prosecutor's Office investigated allegations about the sexual molestation of three related girls born from 1995 to 1999. We will refer to the girls by the fictitious initials A., B., and C. The oldest of the three, A., alleged that her uncle Chang Acuna, had sexually assaulted her many times several years earlier. The disclosure of the sexual assaults surfaced when she was discussing boys with her cousins, sisters B. and C. She told them about the sexual molestation, and they revealed that Acuna had also molested them. The information was disclosed to the girls' parents and promptly reported to the police.

In January 2013, a Bergen County grand jury returned a twenty-one count indictment against Acuna charging offenses that range from first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The first thirteen counts allege sexual crimes committed against A. during the time period from March 2008 to September 2009. Counts fourteen to seventeen charge Acuna with sexual crimes against B. dating from February 2005 to February 2007. Counts eighteen to twenty-one charge sexual crimes committed against C. dating from March 2005 to March 2007. All the crimes are alleged to have occurred in the City of Garfield.1

Soon after the reports about Acuna, prosecutor's investigators learned that B. and C. also alleged they were molested by a friend of their mother, defendant Victor Medina. That investigation led to a separate January 2013 indictment against Medina. Counts one through six of that indictment allege sexual crimes committed against B. dating from April 2010 through September 2012. The charges are five counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and one count of second-degree endangering the welfare of a child by sexual conduct, N.J.S.A. 2C:24-4(a). Counts seven through thirteen charge crimes committed against C. from March 2008 through September 2012. Six of those counts allege criminal sexual contact, all of which are elevated to second-degree sexual assault because of C.'s younger age, N.J.S.A. 2C:14-2(b), and one count of second-degree endangering the welfare of a child by sexual conduct, N.J.S.A. 2C:24-4(a). Like the Acuna indictment, the Medina indictment alleges that all the crimes occurred in the City of Garfield.

According to a certification filed by attorney Rodriguez at a later time, Acuna and Medina came to him separately and retained him to represent them in the criminal cases. He met with the two defendants separately and learned they were referred to him by different persons. Defendants chose him as their attorney because he has substantial experience in criminal practice, including as a prosecutor, and because he speaks Spanish, which is defendants' native language. After Rodriguez learned that two of the alleged victims were the same girls, he discussed that fact with both defendants. Each defendant indicated he has no objection to Rodriguez representing the other defendant. Rodriguez stated that he discussed a potential conflict of interest with another attorney who is conversant in ethical matters and determined that there was no potential conflict in his undertaking to represent both defendants.

During a proceeding in open court in April 2013, the prosecutor made an oral motion to bar Rodriguez from representing both defendants. The court requested briefing of the issue and heard argument on May 6, 2013. The court ruled that Rodriguez has a potential conflict of interest in that, if he represents both defendants, he might be restricted in raising a defense based on third-party guilt by the other defendant. More specifically, the court was persuaded that representation of both defendants would interfere with Rodriguez's ability to impeach the two younger victims in each defendant's trial based on the allegations the victims had made against the other defendant. Consequently, the court issued an order on May 15, 2013, requiring Rodriguez to choose one or the other defendant as his client. We granted defendants' motion for leave to appeal.

We exercise plenary review of a trial court's order disqualifying counsel. State v. Bruno, 323 N.J. Super. 322, 331-32 (App. Div. 1999). Where, as here, the facts are not significantly in dispute, we do not defer to the trial court's findings or ultimate decision. Ibid.; see also J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 222 (App. Div. 2006) ("[T]he question of whether a conflict of interest existed [is] a question of law.").

As part of the right to counsel under the Sixth Amendment, a defendant should be given "a fair opportunity" to retain counsel of his choosing. State ex rel S.G., 175 N.J. 132, 140 (2003). At the same time, the court has a duty in a criminal case to prevent an actual conflict of interest that undermines the integrity of the court proceedings. Ibid.; State v. Davis, 366 N.J. Super. 30, 38 (App. Div. 2004); see also Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 1698, 100 L. Ed. 2d 140, 149 (1988) (noting independent nature of judiciary's interest in ensuring conflict-free representation); State v. Loyal, 164 N.J. 418, 433 (2000) (emphasizing trial court's responsibility for "assuring the fairness and reliability of the trial"). In criminal cases, "special vigilance is required because an attorney's divided loyalty can undermine a defendant's Sixth Amendment right to effective assistance of counsel." S.G., supra, 175 N.J. at 139.

An attorney's conflict of interest in the representation of clients is addressed in our Rules of Professional Conduct (RPC) 1.7 and 1.9. RPC 1.7 restricts an attorney's ability to represent more than one client at the same time when there is "a concurrent conflict of interest." It states that "[a] concurrent conflict of interest exists" if representing one client will be "directly adverse" to the interests of the other client, or if "there is a significant risk" that the attorney's responsibilities to one client "will be materially limited" by his responsibilities to another client. Subsection (b) of the rule addresses potential consent of multiple clients to representation by the same attorney.2

RPC 1.9 pertains to conflicts of interest caused by an attorney's representation of a former client.3

Because Rodriguez seeks to represent Acuna and Medina at the same time, RPC 1.7 is most relevant to the issues on appeal. However, Rodriguez's prior representation of both Acuna and Medina up to the time of the disqualification order of May 15, 2013, would require consideration of RPC 1.9 if he were to continue representing one or the other of the defendants but not both.4

Despite the consent provisions of RPC 1.7(b) and 1.9(a), in some circumstances a conflict cannot be waived. Loyal, supra, 164 N.J. at 433-34; In re Garber, 95 N.J. 597, 613-14 (1984); State v. Rivera, 232 N.J. Super. 165, 179-80 (App. Div.), certif. denied, 117 N.J. 169 (1989); see also Wheat, supra, 486 U.S. at 160-63, 108 S. Ct. at 1697-99, 100 L. Ed. 2d at 149-51 (noting willingness of federal courts to consider claims of ineffective assistance of counsel even where defendant has waived any claim based on the attorney's conflict of interest). In criminal matters, where the public has its own interest in the perception of fair proceedings and the protection of all parties' rights, consent of the clients may not resolve a conflict of interest. Garber, supra, 95 N.J. at 613-14; see also In re Abrams, 56 N.J. 271, 276 (1970) (Consent to a conflict of interest is not relevant "when the subject matter is crime and when the public interest in the disclosure of criminal activities might thereby be hindered."). Additionally, the appearance of impropriety is no longer a violation of the Rules of Professional Conduct for purposes of attorney discipline, but it may still constitute grounds for disqualification of an attorney in a criminal case. Davis, supra, 366 N.J. Super. at 43-44.

With these principles in mind, we must determine whether the attorney's "representation poses an unwarranted risk of disservice either to the public interest or the interest of the client." Id. at 44 (quoting Supreme Court of New Jersey, Administrative Determinations in Response to the Report and Recommendation of the Supreme Court Commission on the Rules of Professional Conduct ("the Pollock Commission"), Commission Comment, RPC 1.7 (2003)). We must make a "fact sensitive" inquiry to determine whether Rodriguez's representation of each defendant "impair[s]" his ability "to perform [his] adversarial role in representing [the other] defendant." See State v. Jimenez, 175 N.J. 475, 486 (2003).

The prosecutor and the trial court were concerned that dual representation would hamper Rodriguez's ability to present a defense of third-party guilt, see, e.g., ibid.; State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989), and defensive use of other crimes evidence to point to a perpetrator of the crimes other than the defendant on trial, see, e.g., State v. Cook, 179 N.J. 533, 566-67 (2004). Without articulating clearly their perception of such a defense, the prosecutor and the trial court seemed to believe a defense attorney with undivided loyalty might point to the other defendant as the perpetrator of crimes alleged by the victims. As Rodriguez argued, such a defense was not viable in these cases, and so, a defense attorney representing defendants effectively and with professional competence would be likely to forego such a defense. See Jimenez, supra, 175 N.J. at 491-93.

The charges against the two defendants have three things in common the indictments allege sexual crimes against minors, two of the victims are the same, and all the offenses are alleged to have occurred in the City of Garfield. Furthermore, although not revealed on the face of the two indictments, the victims and the two defendants know one another.

On the other hand, the two indictments do not allege the same series of crimes. Acuna is alleged to have sexually molested the three girls on various unspecified dates during the time period from February 2005 through September 2009. More significant, he is alleged to have molested B. from February 2005 to February 2007 and C. from March 2005 through March 2007. Medina is alleged to have molested B. from April 2010 through September 2012 and C. from March 2008 through September 2012. Contrary to the trial court's statement in its oral ruling, there is no overlap of time when both defendants are alleged to have committed sexual offenses against the same victims. There is more than a three-year gap between B.'s accusations against Acuna and those against Medina and more than a one year gap between C.'s accusations against Acuna and her accusations against Medina. And, of course, Medina is not alleged to have committed offenses against A. Thus, two of the girls alleged molestation by both defendants, but at different times.

Furthermore, the girls' allegations are detailed and distinguishable as to what each defendant is alleged to have done. As shown in the detectives' reports of their interviews with the victims, Acuna's initial molestation of the two younger girls is alleged to have occurred while their mother was out of the country and they were in the care of their grandmother. Without going into detail in this opinion, the girls alleged that Acuna entered their bedroom and engaged in sexual conduct including digital penetration. B. also alleged that on one occasion Acuna assaulted her while she was playing hide and seek and was in a closet. The girls' descriptions of their encounters with Medina were quite different. Medina was a family friend who drove the girls to school at times. He is alleged to have accosted the girls near the front door of their home and in similar more public places by hugging and touching them inappropriately over their clothing.

The men are different in age, Acuna now in his late thirties and Medina now in his late fifties. They look different. The girls knew both men. One is a relative and the other a family friend. As to a defense of third-party guilt, the allegations do not permit defense claims of mistaken identity of a stranger. See, e.g., State v. Garfole, 76 N.J. 445, 447-49 (1978).

The trial court considered whether Rodriguez's representation of both defendants might limit his ability to cross-examine B. and C. to cast doubt upon their testimony because they had made accusations against another person. In sexual abuse cases of young children, the defense sometimes may suggest that the child's knowledge of sexual conduct and terminology developed from contacts with a different individual than the defendant. See, e.g., State v. Budis, 125 N.J. 519, 524 (1991). The trial court seemed to be concerned that Rodriguez would have to refrain from cross-examining the two girls about the source of their knowledge because of his responsibility to his other client.

The likely success of such a defense strategy, however, is diminished here since the girls are now teenagers. They are no longer pre-adolescents whom the jury might presume have little knowledge of sexual matters. Also, we see no reason defense counsel cannot effectively cross-examine the victims on that subject without prejudicing the interests of his other client. As Rodriguez tried to explain before the trial court, the defense by each defendant would be that the sexual molestation did not occur. The fact that the two girls had also accused another person of sexual molestation could be used in support of that defense without suggesting that the accusations were true.

Thus, it appears that the prosecution's and the trial court's fears of a conflict of interest at the two separate trials is more "hypothetical" than real. See Davis, supra, 366 N.J. Super. at 40. We see no serious risk of "divided loyalties" in the circumstances presented for Rodriguez to represent both defendants. See, e.g., United States v. Infante, 404 F.3d 376, 392 (5th Cir. 2005).

Citing Davis, supra, 366 N.J. Super. at 43-44, the State argues that the appearance of conflict "poses an unwarranted risk of disservice . . . to the public interest." As we have stated, our criminal courts must "act to protect the integrity of their proceedings when a defendant's Sixth Amendment rights are placed at risk by an attorney's conflict of interest." S.G., supra, 175 N.J. at 140. The public's interest and the appearance of unbiased criminal proceedings, however, also require that defendants facing criminal charges be permitted to choose their own attorneys unless an actual conflict or the appearance of impropriety prevents that choice. Jimenez, supra, 175 N.J. at 484. Our Supreme Court has recognized a presumption in favor of permitting a defendant to choose his own attorney. Ibid.

In this case, defendants have indicated through Rodriguez that they wish him to represent both. Counsel says that they value his experience and his fluency in Spanish. We note also that his close familiarity with the other defendant's case and the victims' allegations may be of some use in defending each client. The clients could rationally conclude that they will receive more effective representation by one attorney who is deeply involved in representing both than two independent attorneys who have less knowledge of the evidence and the defenses in the other's case.

Although we conclude there is no conflict that requires Rodriguez's disqualification, the trial court should nonetheless conduct a detailed in-person colloquy with each defendant in open court to make certain that Rodriguez is in fact their choice. The court should explain its concerns about dual representation, discuss the nature of the charges and summarize the evidence likely to be presented by the State, describe or allow counsel to describe potential defenses and areas of cross-examination, and ascertain that each defendant understands the issues and voluntarily chooses to be represented by Rodriguez. See id. at 493-94. Such a pretrial record should alleviate the State's concerns about a future claim of ineffective assistance of counsel if defendants are convicted.

Reversed and remanded for further proceedings consistent with our decision. We do not retain jurisdiction.

 

 

 

 

1 The indictment in our appellate record appears to contain errors in counts eighteen and twenty-one when designating the initials and the birth date of the youngest girl.

2 RPC 1.7 states in full:

(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.

3 In relevant part, RPC 1.9 provides guidance on an attorney's duty to former clients:

(a) A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.

 

. . . .

 

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

 

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

 

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

 

4 The State did not object to the trial court's ruling that Rodriguez could continue to represent one of the two defendants, and did not file a motion for leave to cross-appeal.