State v. RiveraState v. Rivera
The crucial issue raised in this appeal is whether two attorneys assigned to represent defendant in a capital murder trial were properly removed from the case. The trial judge concluded that the two attorneys had created an actual conflict of interest by participating in a scheme to have the chief prosecution
Essex County Indictment 2578-8-3 charged defendant Rafael M. Rivera with knowing or purposeful murder by his own conduct, contrary to
Following the denial of defendant‘s motion for a new trial, the trial judge granted the State‘s motion to impose an extended term on Count Four. Defendant was sentenced to life with 30 years of parole ineligibility for the murder. He was sentenced to a consecutive extended term of life with 25 years of parole ineligibility for the aggravated sexual assault. The court imposed concurrent custodial terms on the two remaining counts.
In a brief filed by counsel on behalf of defendant, and in a pro se supplemental brief, the following contentions have been raised:
I JUDGE DIOS ERRED BY REMOVING BROEGE AND GRAVES AS DEFENDANT‘S TRIAL ATTORNEYS.
II JUDGE DIOS ERRED IN ADMITTING DEFENDANT‘S ATTEMPT TO MARRY DIANE SANDERS AS EVIDENCE OF DEFENDANT‘S CONSCIOUSNESS OF GUILT.
III JUDGE DIOS ABUSED HIS DISCRETION BY REFUSING TO GRANT DEFENDANT‘S MOTION FOR A MISTRIAL.
IV JUDGE DIOS ERRED BY SENTENCING DEFENDANT TO A CONSECUTIVE TERM ON THE COUNT FOUR AGGRAVATED SEXUAL ASSAULT CONVICTION.
On July 16, 1983, Elizabeth Cornwall, a 78 year old widow who used a cane for ambulation, was murdered in the bedroom of her second floor apartment located at 143 Flemming Avenue, Newark. She lived on Social Security payments and benefits from the Veterans Administration. Defendant, his girlfriend Diane Sanders, and their three children resided in a second floor apartment located next to the victim. The victim regarded defendant and his family as part of her extended family. She would baby-sit for defendant‘s children at times. The three children called the victim “grandmother.”
The victim visited Sanders in Sanders’ apartment several times on July 16. The last time was about 4:15 p.m. Defendant came home at approximately 4:30 p.m., while the victim was visiting, and left 15 minutes later saying he was going out with friends. The victim went home at about 5:05 p.m. A short while later, Sanders and her son James placed their ears against a common wall which separated Sanders’ bedroom from the victim‘s bedroom after hearing suspicious noises. They heard what sounded like a bed squeaking. James also heard a man‘s voice in the victim‘s bedroom. Defendant returned home shortly after the noise ended. When Sanders told defendant about the bed squeaking and the man‘s voice, defendant responded that he had been in the victim‘s apartment looking for money when the victim walked in and surprised him. Defendant told Sanders that he struck the victim several times. In an effort to check on the victim, Sanders entered the victim‘s apartment through an unlocked door. From the kitchen, she saw the victim lying on the bed with her head back.
After returning home in a frightened state, Sanders called Eddie Golda, the owner of a nearby bar who was also friendly with the victim. Golda and Sanders entered the victim‘s apartment and he checked the victim‘s pulse. Being unable to feel a pulse, he concluded the victim was dead. An ambulance was called; it arrived at about 7:20 p.m. The victim was taken first
At or about the time the victim was taken to the morgue, defendant was visiting with another girlfriend, Jeanel Daniels, who lived on Hawkins Court in Newark. Defendant told her that he had murdered an old lady with his hands. He said he strangled her.
An autopsy was performed on July 17. It revealed the victim‘s face and neck were covered with bruises. There were pressure marks on the left side of her jaw. Marks on the right side of the face indicated linear abrasions surrounded by bruising. Hemorrhaging was found under the tongue, behind the eye and underneath the cheek. Bruises were located on her forearms and mid-back. Tiny abrasions were found on her lips. Gross examination of the rib cage revealed two fractured ribs. Hemorrhaging as well as black and blue marks were found which were caused by multiple impacts, probably inflicted by slapping, punching or a series of blows to the victim. The cause of death was asphyxiation due to pressure being applied to the neck and throat, commonly called strangulation.
In addition, the autopsy revealed that the victim had been sexually assaulted. Her vagina was torn in the back and was oozing blood. There was bruising of the mucous membrane and the area near the urethra. These injuries were caused by an object at least three inches in diameter such as the cane used by the victim for ambulation or defendant‘s hand.
Based on the autopsy report, a homicide investigation was undertaken by Detectives Jack Eutsey and Charles Conte of the Newark Homicide Squad. Detective Eutsey took a statement from Sanders on July 17, and 18. Sanders also gave statements to Investigator Roger Spain of the Essex County Prosecutor‘s Office on July 17, 18 and 19, 1983. In her first statement, Sanders identified a male named Dennis as the only suspect and she did not indicate that defendant lived with her. But when detective Eutsey spoke to defendant a second time, he said “I
II
The first three points raised by defendant are interconnected and will be discussed together because they all implicate evidence of defendant‘s attempt to marry Sanders. Defendant contends the trial judge erred when he ordered the removal of his two prior attorneys “because of a conflict of interest caused by their involvement with attempts to have defendant marry Sanders and because of the potential that they would be witnesses.” Defendant also contends the trial judge should have excluded evidence that he attempted to marry Diane Sanders to prevent her from testifying against him. Defendant argues that if this evidence had been excluded, there would have been no basis for removal of the attorneys. Finally, defendant asserts that even if the attorneys were potential witnesses, his waiver of a conflict of interest should have been accepted by the trial judge thereby enabling the attorneys to continue in the case.
A
The facts pertinent to these contentions have a distasteful, if not unprofessional and criminal, overtone. The indictment was returned on August 25, 1983. Shortly thereafter, E. Carl Broege and William Graves were assigned to represent defendant charged with a capital offense. At some point prior to July 20, 1984, the prosecutor obtained information that defendant was attempting to marry Sanders to make her unavailable as a witness to the State pursuant to
The return date on the Show Cause Order was adjourned until October 19, 1984. On that date counsel for defendant agreed to continue the restraints pending the trial. On the same date, the judge conducted an
At the request of defendant, another
The trial judge ordered removal of the attorneys from the case on December 20, 1984 without conducting a full hearing. Upon leave granted on March 18, 1985, we summarily reversed and remanded the matter to the trial court to conduct a full hearing on whether to exclude evidence of defendant‘s attempts to marry Sanders and whether to disqualify the attorneys. The hearing on remand was conducted on April 30, 1985. During this hearing Sanders testified that Broege discouraged her from cooperating with the State by telling her it was best for her not to talk to the State. Broege obtained an attorney for her even though she never wanted an attorney. She stated that Broege told her that if she married defendant, she would not have to testify. Broege paid for a blood test required for marriage. When she told defendant she would marry him, defendant said he would win his case.
At the conclusion of that hearing, the trial judge again concluded that evidence of defendant‘s attempts to marry Sanders was admissible. On May 6, 1985, the trial judge ordered that attorneys Broege and Graves could not continue to represent defendant because they were actively involved in the marriage attempts and therefore in a position of conflict. He concluded they had probably engaged in unethical and criminal conduct. He also concluded they were potential witnesses. A motion for reconsideration was denied.
B
The issue of whether the attorneys should have been disqualified must be based on the evidence presented during the motion for a restraining order and the hearings conducted pursuant to
As the trial judge correctly observed, even though defendant had been dating Sanders for 15 years and had lived with her for approximately six years by July 1983 and had fathered three children by her, Sanders had rejected all prior proposals for marriage to defendant. Compelling evidence was presented which established that defendant stated that he wanted to marry Sanders so he could win the case. Consequently, we find overwhelming evidence in the record to support the trial judge‘s determination that defendant attempted to marry Sanders solely to prevent her from testifying for the State. State v. Johnson, 42 N.J. 146, 162 (1964).
C
We are also persuaded that the trial judge did not err in ruling that defendant‘s attempts to marry Sanders was admissible as evidence of consciousness of guilt.
Defendant argues further that the evidence of the attempts to marry Sanders should have been excluded under
As noted previously, we are completely satisfied from the hearings conducted out of the presence of the jury that defendant was an active participant in the marriage attempts solely to deprive the court of Sanders’ testimony. In addition, the evidence placed before the jury respecting the marriage attempts compellingly established that defendant and his two attorneys were active participants in the marriage scheme. Sanders testified that in the fall of 1983, defendant telephoned her and asked her to marry him and she said no. Shortly thereafter, Broege told her that if she married defendant, she would not have to testify. In December 1983 Broege told her not to talk to anyone and he arranged to get her an attorney. On April 23, 1984 Sanders was interviewed by the prosecutor in his office in the presence of her attorney, Nicholas DiPalma. She admitted there were conflicts and untruths in her July 17, 1983 statements to law enforcement officials. Defendant told her he was aware of her conflicting statements because he had received her statements as part of the discovery. During the months of March, April, May and June, 1984, defendant called Sanders once or twice daily. He asked her to marry him. Initially, she said no, but she later said yes. When she said yes, defendant said he would win his case because she would not be able to testify.
Sanders had a blood test performed on June 8, 1984 at the office of Dr. Kaos. Because she did not marry within a specified time period, a second test had to be performed. The second test was also performed by Dr. Kaos and this one was paid for by Broege. Defendant told Sanders that Broege would
Corrections Officer Joseph Rilli also testified before the jury respecting the marriage attempts. He testified that on July 19, 1984 defendant showed him a premarital certificate which he wanted signed by a doctor so he could marry Sanders. Defendant was housed on the eighth floor and he needed to get to the twelfth floor to get a doctor to sign the certificate. Defendant had already completed a blood test on June 28, 1984. The doctor on duty at the time was also an inmate. Officer Rilli did not take defendant to the twelfth floor to see a doctor. He reported the incident to the Essex County Prosecutor. Broege and Graves did not testify during the
The jury was given special instructions concerning the use of the evidence of attempts to marry Sanders. The jury was told:
* * * * * * * *
So once an accused married he attains the privilege as to the testimony of his spouse and can prevent the spouse from testifying. I explained that to you, ladies and gentlemen, because there has been some testimony in this case from which you may infer that the defendant attempted to marry Diane Sanders after the alleged — the commission of the alleged crime. The question of whether the defendant wanted to marry Diane Sanders is another question of fact for your determination. If after a consideration of all the evidence you find that the defendant, fearing that the witness Diane Sanders would testify against him, attempted to marry her for the purpose of invoking the spousal immunity, then preventing her from testifying against him, then you may consider such attempt to marry in connection with all the other evidence in the case as an indication or proof of consciousness of guilty.
Our careful review of the record persuades us to conclude the evidence of defendant‘s attempts to marry Sanders “was clearly admissible as illuminating defendant‘s consciousness of his own guilt.” State v. Lassiter, supra, 197 N.J. Super. at 8. The evidence was such as to permit an inference that defendant was not simply a passive player who merely relied on the advice of his attorneys. He not only knew the impact the marriage would have on the State‘s case, he actively and gleefully
We are also satisfied that the evidence of the marriage attempts should not have been excluded under
Further, we agree with the trial judge that removal of Broege and Graves from the case was proper under the unique circumstances. It is beyond dispute that a defendant in a criminal case is entitled to be represented by the counsel of his or her own choice. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954); Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); State v. Reddy, 137 N.J. Super. 32, 35 (App.Div. 1975). But there is no absolute right to a particular counsel. United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3 Cir.1969), cert. den. sub nom. Carey v. Rundle, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970); State v. Reddy, supra, 137 N.J. Super. at 35. See also United States v. McKeon, 738 F.2d 26, 35 (2d Cir.1984) where counsel was disqualified under a disciplinary rule when it became
A defendant‘s right to counsel of his or her choice is further limited in that “there is no right to demand to be represented by an attorney disqualified because of an ethical requirement.” Reardon v. Marlayne, Inc., 83 N.J. 460, 477 (1980); Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 218 (1988); State v. Lucarello, 135 N.J. Super. 347, 353 (App.Div.), aff‘d o.b. 69 N.J. 31 (1975). Licensed attorneys employed or retained by the Public Defender are subject in every respect to the rules governing the professional conduct of lawyers. In re Advisory Opinion No. 544 of N.J. Sup. Ct., 103 N.J. 399, 404 (1986). The motion to disqualify Broege and Graves required the trial judge to balance the competing interest of the need to maintain the highest standards of the profession and the right of defendant to proceed with counsel of his choice. Dewey v. R.J. Reynolds Tobacco Co., supra. See also
The trial judge recognized the need for this balancing. After examining the evidence presented, he concluded Broege and Graves had engaged in unethical, if not criminal, conduct in several respects: (1) Broege advised Sanders not to cooperate with the police or prosecutor, (2) Broege obtained an attorney for Sanders to prevent her from talking to law enforcement persons, and (3) Broege‘s participation in a scheme to have Sanders marry defendant to deprive the State of a key witness. For purposes of this appeal this conduct implicates possible violations of
We fully agree with the trial judge that Broege and Graves were in a position of actual conflict of interest which jeopardized defendant‘s constitutionally protected right to effective assistance of counsel. See State v. Fritz, 105 N.J. 42, 58 (1987); State v. Gary, 229 N.J. Super. 102, 115-116 (App.Div. 1988). Once they became actual participants in the marriage scheme, their effectiveness as counsel was hampered because of divergent interest and divided loyalty. See State v. Bell, 90 N.J. 163, 171-175 (1982); State v. Bellucci, 81 N.J. 531, 543 (1980); State v. Land, 73 N.J. 24, 31 (1977). In the circumstances, it would be sophomoric to believe that the two attorneys could be single-minded in their representation of defendant and that their intellectual focus had not become cloudy. Unlike the facts in State v. Williams, 80 N.J. 472 (1979), where defense counsel engaged in proper, albeit foolishly, trial preparation and became a potential witness in the case, the attorneys here engaged in improper conduct which created a conflict of interest. The conflict of interest created such a substantial likelihood of prejudice to defendant in this capital case that the only viable course of action was to remove the attorneys. See State v. Bell, supra, 90 N.J. at 171.
E
Defendant urges that the court should have accepted his waiver of the conflict of interest of the attorneys. The motion for waiver was addressed to the trial judge‘s discretion. In this capital case, defendant‘s understanding of the ramifications of the attempted waiver of a conflict is quite dubious. See
There are higher values at stake in a capital case than defendant‘s right to have a particular attorney represent him. State v. Wiggins, 158 N.J. Super. 27, 32 (App.Div. 1978). Where, as here, there can be no effective waiver of a conflict of interest or waiver of effective assistance of counsel, it is not improper for a trial judge to remove the attorneys. What the United States Supreme Court stated recently is dispositive of the waiver issue raised here.
Thus, where a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver.... As the Court of Appeals for the Third Circuit stated in United States v. Dolan, 570 F.2d 1177, 1184 (Cir. 3 1978):
`[W]hen a trial court finds an actual conflict of interest which impairs the ability of a criminal defendant‘s chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant. Such representation not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court,
but it is also detrimental to the independent interest of the trial judge to be free from future attacks on the fairness of the proceedings in his own court and the subtle problems implicating the defendant‘s comprehension of the waiver.\’ [Wheat v. United States, ___ U.S. ___, ___-___, 108 S.Ct. 1692, 1698-1699, 100 L.Ed.2d 140, 150-151 (1988)]
III
During the trial, Sanders testified that she did not implicate defendant in her first statement to the police because she was afraid of defendant who had beaten her once requiring hospitalization. A motion for a mistrial was denied and defendant now contends this was error. We disagree. The answer explained why Sanders wanted to protect defendant in her first statement to a law enforcement official. A voir dire of each juror was conducted to make certain each juror understood the limited purpose for allowing that evidence. Defense counsel prevailed upon the trial judge to instruct the jury that it could not consider that evidence to show defendant‘s propensity for
IV
Finally, defendant contends his double life sentences with 55 years of parole ineligibility are excessive. The extended term of life for the aggravated sexual assault was based on defendant‘s status as a persistent offender.
We have examined this contention in light of the record and the controlling legal principles and find it is clearly without merit. See State v. Dunbar, 108 N.J. 80 (1987); State v. Miller, 108 N.J. 112, 122 (1987); State v. Yarbough, 100 N.J. 627 (1985), cert. den. 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986); State v. Roth, 95 N.J. 334 (1984); State v. Hodge, 95 N.J. 369 (1984); State v. Mosch, 214 N.J. Super. 457, 465 (App. Div. 1986), certif. den. 107 N.J. 131 (1987). The aggravated sexual assault upon the 78 year old victim was completely unrelated to causing death by strangulation. In the circumstances of this case, the consecutive life with 25 years of parole ineligibility was not manifestly excessive.
The judgment of conviction is affirmed.1