SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued November 6, 2002 -- Decided February 27, 2003
ALBIN, J., writing for a majority of the Court.
In this capital case, the Court decides whether to disqualify one of
two public defenders representing defendant Jimenez because of her previous one-day representation of
a client who was questioned during the investigation but found to have no
connection to the murder.
On May 20, 2001, ten-year-old Walter Contreras attended a local carnival and did
not return home. A subsequent search for the boy ended tragically on May
22, 2001, with the discovery of his body near the Whippany River in
Morristown. Walter Contreras had suffered multiple stab wounds, and his head had been
bludgeoned with a garden tool. He also had been sexually assaulted, and evidence
of semen was found in his underpants.
A thorough and extensive investigation in which “hundreds of people” were interviewed ultimately
led the police to defendant Jimenez. During that investigation, a search of a
playground approximately one mile from where the body of the murdered boy had
been found led to the discovery of a distinctive sweater stained with what
was presumed to be human blood. Viewing the sweater as a possible link
to the murder, the police showed photographs of the sweater to numerous people
in the Morristown area. At least fourteen people were identified as possibly wearing
the sweater found near the playground, one of which was defendant Jimenez and
another of which was a Ray Hughes.
On May 28, 2001, the Morristown Police secured two warrants, one authorizing the
search of defendant’s residence and the other the taking of DNA samples from
defendant. Defendant’s DNA samples matched the semen found in the young boy’s underpants.
On June 7, 2001, defendant was arrested and in a lengthy confession, gave
details of the murder. In September 2001, he was indicted for murder, kidnapping,
attempted aggravated sexual assault, and possession of a weapon for unlawful purposes. On
October 22, 2001, the State signaled its intent to seek the death penalty
by filing a Notice of Aggravating Factors. The Office of the Public Defender
assigned First Assistant Public Defender Joseph Krakora and Deputy Public Defender Dolores Mann
to represent defendant.
During the course of the murder investigation, police questioned Ray Hughes, one of
the several persons identified as having worn the sweater found near the playground.
When the police questioned Hughes, he had a knife in his possession, which
investigators later determined could not have inflicted any of the wounds on the
victim. Hughes consented to a polygraph test that proved to be inconclusive. On
May 30, 2001, eight days after the discovery of the victim’s body and
eight days before defendant’s arrest, Hughes threatened to kill a woman apparently because
she gave information to the police that led to his interrogation in the
murder investigation. Hughes was arrested and later indicted for uttering terroristic threats. On
July 18, 2001 he pled guilty to the downgraded petty disorderly persons offense
of harassment and was sentenced that same day to the fifty days he
had already served in the county jail. Dolores Mann represented Hughes at that
plea and sentencing. The State made no motion at that time to disqualify
Mann from representing Hughes, despite its knowledge that she also represented defendant Jimenez
on the murder charges.
On December 20, 2001, the State filed a motion to disqualify Mann as
counsel for defendant because of her one-day representation of Hughes, arguing that there
was an objective basis on which to assert a defense of third-party guilt
against Hughes and that Mann therefore would be impaired in her representation of
defendant. The State made it clear that it neither believed nor had evidence
that Hughes was in any way involved in the murder. Furthermore, the State
did not view Hughes’ terroristic threats as a sign of consciousness of guilt,
but rather attributed it to his unpleasant personality and to his resentment at
having been involved in the murder investigation. Nevertheless, the State took the position
that there was sufficient evidence for defense counsel to argue that Hughes committed
the murder based on the testimony of witnesses who allegedly saw Hughes wearing
the distinctive sweater, coupled with Hughes’ terroristic threats to the woman who gave
his name to the police. The State expressed the concern that Mann’s prior
representation of Hughes precluded her from properly considering the defense of third-party guilt,
thereby creating an actual conflict of interest and an appearance of impropriety that
would threaten the integrity of a capital conviction of defendant on appeal.
The defense took that position that there was no evidence connecting the sweater
directly to the murder and, therefore, no evidence tying Hughes to the crime,
despite the claims by witnesses that Hughes wore the distinctive sweater. In light
of the forensic evidence and defendant’s confession, the defense maintained that any objectively
reasonable attorney would know that to attempt to implicate Hughes falsely would fail
and would work to the detriment of the defendant. Thus, the defense saw
no potential claim of third-party guilt involving Hughes.
The motion judge denied the State’s application to disqualify Mann, noting that neither
the State nor the defense intended to call Hughes as a witness. The
judge further found Hughes’ involvement so attenuated that there was no reasonable basis
to claim an appearance of impropriety. Finally, at the hearing, the judge addressed
defendant directly on the issue of his choice of counsel and satisfied himself
that defendant consented to continued representation by Mann.
The Appellate Division denied the State’s motion for leave to appeal. The State
then moved for leave to appeal to the Supreme Court. While that motion
was pending, the State filed another motion to disqualify Mann based on assertions
in a defense brief in support of a motion to suppress the DNA
evidence and the confession. The defense had challenged the sufficiency of the affidavit
in support of the warrants authorizing the search of defendant’s home and the
taking of the DNA samples because that affidavit had identified only the two
people who saw defendant wearing the distinctive sweater and had not mentioned the
names of the other numerous people, including Hughes, who had been seen wearing
a similar sweater. The State viewed the defense position as an admission that
the assertion of third-party guilt was a viable option. The defense continued to
deny that a reasonable basis for asserting third-party guilt existed, noting a distinction
between arguing that there was no probable cause on which to base the
issuance of the warrants and arguing that there was no basis for a
theory of third-party guilt involving Hughes.
The motion judge again denied the State’s motion to disqualify Mann, noting that
the defense simply was saying that Hughes’ involvement in the investigation should have
been included in the affidavit as part of the probable cause determination for
the issuance of the warrants. He continued to find the appearance of impropriety
as no more than a “fanciful possibility.”
The Supreme Court granted the State’s motion for leave to appeal. The Court
also granted the motion of the Attorney General to appear as amicus.
HELD : Defense counsel representing the defendant in a capital murder case, who also
represented for one day a client who was questioned during the investigation but
found to have no connection to the murder, need not be disqualified from
continued representation of the capital defendant, as that continued representation neither presents an
actual conflict of interest under the Rules of Professional Conduct nor an appearance
of impropriety.
1. An accused is guaranteed the right to the assistance of counsel in
a criminal proceeding. Although there is a constitutional presumption in favor of counsel
of one’s choice, a defendant cannot insist on representation by an attorney where
there is an actual conflict of interest or an appearance of impropriety – both
of which would threaten not only a defendant’s interests, but also the integrity
of the trial process. (pp. 9-10)
2. Mann’s representation of both Hughes and defendant Jimenez implicates RPC 1.9 and
RPC 1.7, both of which raise questions regarding the propriety of Mann’s representation,
the answers to which are fact sensitive. The overriding issue is whether Mann
is so impaired by her previous representation of Hughes that she will be
unable to perform her adversarial role in representing defendant Jimenez. (pp. 10-12)
3. Although the right to the defense of third-party guilt is of constitutional
dimension, there must be some evidence of third-party guilt to permit the defense
to argue the point. That evidence need not show substantial proof of a
probability that the third person committed the act; it need only be capable
of raising a reasonable doubt of defendant’s guilt. (pp. 12-17)
4. In the circumstances of this case, a viable claim of third-party guilt
will trigger an actual conflict of interest and an appearance of impropriety. However,
there is no evidence linking Hughes to the crime that would permit an
argument for third-party guilt. (pp. 17-21)
5. There is no actual conflict of interest or appearance of impropriety in
Mann’s serving a co-counsel to defendant Jimenez. An ordinary knowledgeable citizen acquainted with
the facts of this case would not have any reasonable basis to believe
that there is a plausible third-party guilt case involving Hughes. Therefore, Mann’s remaining
as counsel in this case will not disserve the interests of defendant Jimenez,
Hughes, or the public. (p. 23)
6. Although the rationale of the Court’s decision does not require consent under
the Rules of Professional Conduct, given the interests at stake in this capital
case, prudence dictates that the judge should conduct a colloquy on the record
and determine that defendant knows the full circumstances of Mann’s prior representation of
Hughes, the specifics of how and why Hughes became involved in the investigation,
and an explanation for defense counsel’s intent not to pursue a defense of
third-party guilt involving Hughes. With a complete knowledge and understanding of the import
of these facts, defendant Jimenez may then voluntarily consent to have Mann continue
to represent him. (pp. 23-24)
7. The Rules of Professional Conduct cannot compel the removal of an attorney
because, as a tactical matter, she should keep open the option of a
third-party guilt defense where there is no reasonable basis to assert the defense.
(p. 24)
Judgment of the motion judge is AFFIRMED and the matter is REMANDED for
consideration in accordance with this opinion.
JUSTICE LONG has filed a separate dissenting opinion in which JUSTICE COLEMAN and
JUSTICE LaVECCHIA join. Justice Long believes that when Mann represented Hughes at the
plea and allowed him to place on the record a benign explanation for
his terroristic threats against the woman who involved him in the investigation, his
actions directly contravened the interests of defendant Jimenez. She further believes that Mann’s
subsequent position that she would not use the third-party guilt defense involving Hughes
in her representation of Jimenez highlighted her conflict of interest. At the very
least, Justice Long views this case as involving an appearance of impropriety that
compromises the public confidence in the fairness of the proceedings leading to a
verdict.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO and ZAZZALI join in JUSTICE ALBIN’s opinion.
JUSTICE LONG has filed a separate dissenting opinion in which JUSTICES COLEMAN and
LaVECCHIA join.
SUPREME COURT OF NEW JERSEY
A-
115 September Term 2001
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
PORFIRIO JIMENEZ,
Defendant-Respondent.
Argued November 6, 2002 – Decided February 27, 2003
On appeal from to the Superior Court, Law Division, Morris County.
Joseph Connor, Jr., Assistant Prosecutor, argued the cause for appellant (Michael M. Rubbinaccio,
Morris County Prosecutor, attorney).
Joseph E. Krakora, Deputy Public Defender II, argued the cause for respondent (Yvonne
Smith Segars, Public Defender, attorney).
Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae, Attorney
General of New Jersey (Peter C. Harvey, Acting Attorney General, attorney).
The opinion of the Court was delivered by
ALBIN, J.
In this capital case, we must decide whether to disqualify one of the
two public defenders representing defendant because of her previous one-day representation of a
client who was questioned during the investigation but found to have no connection
with the murder. We conclude that the facts do not present a reasonable
basis to deny defendant counsel of his choice based on a conflict of
interest or an appearance of impropriety.
On May 20, 2001, ten-year-old Walter Contreras attended a local carnival and did not return home. In the early morning hours of the next day, he was reported missing, sparking a massive search. The search ended tragically on May 22, 2001, with the discovery of his lifeless body near the Whippany River in Morristown. The young boy had suffered multiple stab wounds, and his head had been bludgeoned with a garden tool. He also had been sexually assaulted, and evidence of semen was found in his underpants.
A thorough and extensive investigation in which “hundreds of people” were interviewed ultimately led the police to defendant. On May 21, 2001, the canvassing of a playground approximately one mile from where the body of the murdered boy was found uncovered a pair of bloody blue jeans that were later determined to have no connection with the murder. Four days later, another search of the playground led to the discovery of a sweater with a distinctive pattern consisting of blue and black triangle shapes on a light blue background with black trim at the neck, waist, and sleeves. The sweater also had unidentifiable stains presumptive for human blood. Viewing the sweater as a possible link to the murder, the police showed photographs of the sweater to numerous people in the Morristown area.
At least fourteen people were identified as possibly wearing the sweater found in the playground. Two persons reported to the police that they had seen defendant wearing the sweater. One of the two was an interpreter who had worked on a domestic violence crisis team on cases involving defendant.
On May 28, 2001, the Morristown Police secured two warrants, one authorizing the search of defendant’s residence and the other the taking of DNA samples from defendant. Defendant’s DNA samples matched the semen found in the young boy’s underpants. A warrant for the arrest of defendant for the murder of Walter Contreras was issued on June 6, 2001. The next day, defendant was arrested and in a lengthy confession gave details of the murder.
In September 2001, a Morris County Grand Jury returned a seven-count indictment, charging defendant with murder in violation of N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:11-3a(2) (count one), two counts of felony murder in violation of N.J.S.A. 2C:11-3a(3) (counts two and four), kidnapping in violation of N.J.S.A. 2C:13-1b (count three), attempted aggravated sexual assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(1) (count five), attempted aggravated sexual assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(6) (count six), and third-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4d (count seven). On October 22, 2001, the State signaled its intent to seek the death penalty by filing a Notice of Aggravating Factors pursuant to N.J.S.A. 2C:11-3c(1) and Rule 3:13-4. The Office of the Public Defender assigned Deputy Public Defender Dolores Mann (Morris County Region) and First Assistant Public Defender Joseph Krakora (Essex County Region) to represent defendant.
During the murder investigation, Ray Hughes was one of the many people interviewed by the police. Hughes had been identified by several people as wearing a sweater similar to that found in the playground. When the police questioned Hughes, he had a knife in his possession, which, it was later determined, could not have inflicted any of the wounds on the victim. Hughes consented to a polygraph test that proved to be inconclusive.
On May 30, 2001, eight days after the discovery of the victim’s body and eight days before defendant’s arrest, Hughes threatened to kill a woman named Jolene Proctor, apparently because she gave information to the police that led to his interrogation in the murder investigation. Hughes was arrested and later indicted for uttering terroristic threats in violation of N.J.S.A. 2C:12-3b (a third-degree crime). On July 18, 2001, Hughes pled guilty to the downgraded petty disorderly persons offense of harassment, N.J.S.A. 2C:33-4, and the same day was sentenced to the fifty days he had already served in the county jail. Deputy Public Defender Mann represented Hughes at his plea and sentencing. That one day, July 18th, constituted the entire duration of Mann’s representation of Hughes. The State made no motion at that time to disqualify Mann from representing Hughes despite its knowledge that she also represented defendant on the murder charges.
On December 20, 2001, the State filed a motion to disqualify Mann as counsel for defendant because of her one-day representation of Hughes. On February 11, 2002, the State argued that there was an objective basis to assert a defense of third-party guilt against Hughes and, therefore, Mann would be impaired in her representation of defendant. The State made clear that it neither believed nor had evidence that Hughes was in any way involved in the murder. Moreover, the State attributed the threat against Jolene Proctor to Hughes’ unpleasant personality and to the fact that he did not appreciate having his name involved in the murder investigation, not as a sign of consciousness of guilt of the murder.
Nevertheless, the State took the position that there was sufficient evidence for defense counsel to argue that Hughes committed the murder based on the testimony of witnesses who allegedly saw Hughes wearing the distinctive sweater coupled with Hughes’ threats to Proctor. The State expressed concern that Mann’s prior representation of Hughes precluded her from properly considering the defense of third-party guilt, thereby creating an actual conflict and an appearance of impropriety that would threaten the integrity of a capital conviction of defendant on appeal. The theory of the State is that defendant discarded the bloody sweater while in flight from the crime scene. According to the State, placing the sweater on Hughes to diminish the evidence of defendant’s guilt should be one of the options available to the defense. The State noted its fear that the out-of-hand rejection of this strategy by the defense, impaired by a conflict, would later be second-guessed in a post-conviction relief hearing. The State did, however, place in perspective the relatively minor importance of the sweater in the overall prosecution of defendant by its admission that there was no “definitive link” between the sweater and defendant or the victim.
The defense argued that there was no evidence connecting the sweater directly to the murder and, therefore, no evidence tying Hughes to the crime, despite the claims by witnesses that Hughes wore the distinctive sweater. In light of the forensic evidence and defendant’s confession, the defense submitted that any objectively reasonable attorney would know that to attempt to implicate Hughes falsely would undoubtedly fail and work to the detriment of defendant. The defense saw no potential claim of third-party guilt involving Hughes.
The motion judge denied the State’s application to disqualify Mann. He noted that neither the State nor the defense intended to call Hughes as a witness. The judge found Hughes’ involvement so attenuated that there was no reasonable basis to claim an appearance of impropriety. At the hearing, the judge addressed defendant directly on the issue of his choice of counsel and satisfied himself that defendant consented to continued representation by Mann.
The Appellate Division denied the State’s motion for leave to appeal. The State then moved for leave to appeal to this Court. While that motion was pending, the State filed another motion to disqualify Mann based on assertions in the defense brief in support of a motion to suppress the DNA evidence and the confession. The defense has challenged the sufficiency of the affidavit in support of the warrants authorizing the search of defendant’s home and the taking of the DNA samples. In its suppression brief, the defense argued that the affidavit in support of the warrants was deficient because it only identified the two people who saw defendant wearing the same distinctive sweater found in the playground. The affidavit failed to mention the names of at least fourteen other people, including Hughes, who had reportedly been seen wearing a similar sweater.
On May 17, 2002, the same motion judge who had decided the first disqualification motion heard additional arguments on the subject. The State contended that the defense had taken a position in its suppression motion inconsistent with the one advanced at the disqualification motion. The State viewed the defense claim that the affidavit should have included information regarding Ray Hughes and the other thirteen people sighted wearing the distinctive sweater as an admission that third-party guilt was a viable option. The State, however, did not waver from its position that Hughes was not an “alternate suspect” and had nothing “to do with the crime.”
The defense responded that there was a meaningful distinction between, on the one hand, arguing that there was no probable cause for the issuance of the warrants and, on the other, arguing that there was no basis for a theory of third-party guilt involving Hughes. The motion judge again denied the State’s motion to disqualify Mann. The judge noted that the defense was simply saying that Hughes was investigated along with hundreds of other people and that this information was known to the State and should have been included in the affidavit as part of the probable cause determination for the issuance of the warrants. He still found the appearance of impropriety no more than a “fanciful possibility.” The judge also recited that the State “knew that Ms. Mann was representing [Hughes], and knew that she was also representing [defendant],” but failed to move to disqualify Mann until months following the disposition of the Hughes case.
This Court granted the State’s motion for leave to appeal. 172 N.J. 351 (2002). We also granted the motion of the Attorney General to appear as amicus.
An accused is guaranteed the right to the assistance of counsel in a criminal proceeding, U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10, but not the constitutional right to counsel of his choice. See Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697, 100 L. Ed.2d 140, 148-49 (1988) (stating that “the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers”); State v. Loyal, 164 N.J. 418, 434 (2000). An accused cannot impress into service an attorney he cannot afford or an attorney who has no desire to represent him. Wheat, supra, 486 U.S. at 159, 108 S. Ct. at 1697, 100 L. Ed. 2d at 149. Moreover, the scope of an attorney’s representation of a client is circumscribed by the Rules of Professional Conduct. Although there is a constitutional presumption in favor of counsel of one’s choice, a defendant cannot insist on representation by an attorney where there is an actual conflict of interest or an appearance of impropriety. Loyal, supra, 164 N.J. at 430, 434; State v. Needham, 298 N.J. Super. 100, 103 (Law Div. 1996); RPC 1.7; RPC 1.9. The Rules of Professional Conduct are designed to assure that, in representing a client, counsel’s judgment is not impaired by divided loyalties or other entangling interests. State v. Bellucci, 81 N.J. 531, 538 (1980). The Rules are also intended to further a broader societal interest —— the integrity of the trial process itself. Loyal, supra, 164 N.J. at 433-34.
This case implicates two Rules of Professional Conduct, RPC 1.9 and 1.7. RPC 1.9 sets forth the responsibilities of an attorney where there is a conflict of interest between a present and former client:
(a) A lawyer who has represented a client in a matter shall not thereafter:
(1) 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 consents after a full disclosure of the circumstances and consultation with the former client; or
(2) use information relating to the representation to the disadvantage of the former
client except as RPC 1.6 would permit with respect to a client or
when the information has become generally known.
(b) The provisions of RPC 1.7(c) are applicable as well to situations covered
by this rule. RPC 1.7(c) forbids an attorney from representing a client, even
in the absence of an actual conflict of interest, where there would be
an appearance of impropriety under the circumstances of the case:
(c) This rule shall not alter the effect of case law or ethics
opinions to the effect that:
(1) in certain cases or categories of cases involving conflicts or apparent conflicts,
consent to continued representation is immaterial, and
(2) in certain cases or situations creating an appearance of impropriety rather than
an actual conflict, multiple representation is not permissible, that is, in those situations
in which an ordinary knowledgeable citizen acquainted with the facts would conclude that
the multiple representation poses substantial risk of disservice to either the public interest
or the interest of one of the clients.
The following issues are raised in this case. Did Mann represent a client,
Hughes, in a case substantially related to that of defendant? Are defendant’s interests
materially adverse to those of Hughes? Is there a reasonable basis to believe
that Mann will use information obtained during the course of her representation of
Hughes to that former client’s disadvantage or refrain from using such information to
the detriment of defendant? And would an “ordinary knowledgeable citizen acquainted with the
facts” conclude that either the clients’ or the public’s interests would be “disserved”
by Mann’s representation of defendant?
The answers to these questions are fact sensitive and require a searching review
of the record. See, e.g., Loyal, supra, 164 N.J. at 430 (citing In
re Opinion No. 415,
81 N.J. 318, 325 (1979)). The overriding issue in
this case is whether Mann is so impaired by her previous representation of
Hughes that she will be unable to perform her adversarial role in representing
defendant. That determination requires a consideration whether there is any reasonable prospect of
asserting the defense of third-party guilt.
A defendant is entitled to prove his innocence by showing that someone else
committed the crime with which he or she is charged. 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); State v. Sturdivant,
31 N.J. 165,
179 (1959), cert. denied,
362 U.S. 956,
80 S. Ct. 873,
4 L.
Ed.2d 873 (1960). The right to the defense of third-party guilt is
of constitutional dimension. Koedatich, supra, 112 N.J. at 297. There must, however, be
some evidence of third-party guilt to permit the defense to argue the point.
“‘[T]he third party evidence need not show substantial proof of a probability that
the third person committed the act; it need only be capable of raising
a reasonable doubt of defendant’s guilt.’” Id. at 299 (quoting People v. Hall,
718 P.2d 99, 103 (Cal. 1986) (internal quotation marks omitted)).
State v. Sturdivant, supra, involved a capital prosecution for the sodomy-murder of a
four-and-one-half-year-old girl, who died as a result of hemorrhaging in the rectum. 31
N.J. at 169, 182. The defendant’s strategy was to shift the blame for
the death of the young girl to his niece. Defendant intended to call
his sister to testify that her daughter had placed a can opener into
the vagina and rectum of the victim one week before the victim’s death
and on that same occasion the victim had placed a can opener into
her own rectum. Id. at 178. The sister’s testimony concerning the conduct of
defendant’s niece was held inadmissible by the trial court because there was no
evidence that the niece and the victim were together at any time during
the intervening week and there was no offer of any proof that the
injuries allegedly inflicted by the niece a week earlier caused the victim’s death.
Id. at 180, 181. In speaking for the Court, Chief Justice Weintraub observed:
It would seem in principle to be sufficient if the proof offered has
a rational tendency to engender a reasonable doubt with respect to an essential
feature of the State’s
case. . . . We think it not enough to prove some hostile
event and leave its connection with the case to mere conjecture. Somewhere in
the total circumstances there must be some thread capable of inducing reasonable men
to regard the event as bearing upon the State’s case.
[Id. at 179.]
With no evidential link, this Court agreed with the trial judge that the
jury could not be left to make a speculative connection between the niece’s
act and the death of the victim. Id. at 182.
State v. Koedatich, supra, also a capital case, presents another example of the
limits of third-party guilt as a defense. Koedatich involved the savage rape and
slaying of an eighteen-year-old high school senior and cheerleader, Amie Hoffman. Id. at
231-32. The victim had been last seen alive in the parking lot of
the Morris County Mall. Id. at 231. Two days after her disappearance, her
body was discovered in a water retention tank located in a secluded reservoir
area of Randolph Township. Id. at 232, 234. The police investigation centered on
interviewing people in the vicinity of the mall and the reservoir on the
date of the victim’s disappearance. Id. at 236. Ultimately, James Koedatich became the
focus of the investigation, and eyewitness testimony and forensic evidence found in his
car, a large Chevrolet, tied him to the victim and the murder. Id.
at 238-39.
The defendant unsuccessfully attempted to introduce a variety of evidence regarding the possible
guilt of a third party, Kevin Sheehan. Id. at 297-312. For example, the
trial court blocked the defendant’s effort to introduce evidence that: 1) Sheehan, a
part-time football coach at the victim’s high school, made obscene phone calls to
a telephone located outside the cheerleaders’ locker room; 2) Sheehan owned a small
sports car to support the account of a woman who, living near the
murder scene, purportedly heard a small sports car in the vicinity at the
approximate time of the murder; 3) Sheehan gave conflicting alibis, sweated profusely, wanted
to contact his attorney, and eventually ran into his house when questioned by
investigators; and 4) Sheehan made an alleged declaration against interest, telling his mother
to “‘hide the knife in the garage’” after he was called in for
questioning. Id. at 302-03, 305-09.
The defendant claimed that the combined effect of this evidence supported the inference
that the murderer was Sheehan rather than the defendant. Id. at 297. The
trial court did not find any evidence connecting Sheehan to the crime and
summed up the weakness of the third-party guilt defense in the following way:
“What have we heard at all linking Mr. Sheehan with Amie Hoffman? I
haven’t heard a thing linking Mr. Sheehan with Amie Hoffman.” Id. at 308.
We found no fault with the trial court’s evidentiary rulings. We affirmed the
trial court’s decision to bar testimony regarding the alleged obscene phone calls because
it was premised on inadmissible hearsay and lacked probative value. Id. at 303-04.
The phone calls “simply raised a possible ground of suspicion without providing any
direct connection with the murder of [the victim].” Id. at 303. There was
no “causal link between the phone calls” and the murder. Ibid.
The trial court admitted the testimony of the woman who purportedly heard the
sound of a small sports car in the reservoir area around the time
of the murder to allow the defense to argue that a car other
than the defendant’s Chevrolet may have been in the vicinity of the crime.
Id. at 305. Such evidence did have a legitimate tendency to prove that
a third party could have committed the crime. However, we agreed with the
trial court that Sheehan’s possession of a small sports car at the time
of the murder did not draw a sufficient link between Sheehan and the
victim and hence was inadmissible. Id. at 306. Moreover, Sheehan’s sweating, giving conflicting
alibis, requesting an attorney, and other anxious conduct during an interrogation were not
evidence of consciousness of guilt of a murder when there was no other
evidence linking him in any way to the victim. Id. at 308.
Finally, we also held that Sheehan’s command to his mother to “‘hide the
knife in the garage’” was properly excluded from evidence on the ground of
lack of relevance. Again, there was not a sufficient link between Sheehan, the
victim, or the commission of the crime. Id. at 310, 311. This Court
was satisfied that the trial record contained no evidence supporting the third-party guilt
of Sheehan. Id. at 312.
With these cases in mind, we begin by stating the obvious: in the
circumstances of this case, a viable claim of third-party guilt will trigger an
actual conflict and an appearance of impropriety. It is not necessary to decide
whether Mann represented defendant and Hughes in substantially related matters because there is
no reasonable basis to conclude that defendant’s interests are materially adverse to Hughes.
See footnote 1
Both the State and the defense have abjured any intention of calling Hughes
as a witness. Both the State and the defense have attested that there
is no reason to believe, or evidence to support, that Hughes was involved
in the murder of Walter Contreras. Hughes was never placed in the company
of the victim or in the vicinity of the crime. This is not
a case in which defense counsel will have to cross-examine a former client
or call to the stand a former client who may incriminate himself and
exculpate the present client.
Compare, e.g., Loyal, supra, 164 N.J. at 429-34; State
v. Catanoso,
222 N.J. Super. 641 (Law Div. 1987).
There is no suggestion in the record that Mann learned anything in her
representation of Hughes that would benefit defendant. Needless to say, if Mann discovered
any information during her attorney-client relationship with Hughes that would suggest even remotely
that he was involved in the crime, she would be duty-bound to withdraw
from her representation of defendant.
The State’s concern is based solely on the accounts of several witnesses who
allegedly observed Hughes wearing the same type of sweater that the State will
argue defendant discarded in flight from his crime. The sweater standing alone does
not make the case for the State or offer a direct link to
the crime. The sweater had no identifiable bloodstains from either the victim or
any other party and was found a mile from the murder scene. At
least fourteen other people were identified as having worn a similar sweater. Sweaters
of this very same style may have been sold in outlets in Morris
County and the surrounding areas. The sweater only becomes relevant in the context
of other compelling evidence offered against defendant, a confession in which defendant gave
details of the murder and forensic evidence matching his DNA to the semen
found in the underpants of the victim.
The heart of the case is the confession and the DNA evidence. Only
in light of the confession and the DNA evidence is the State able
to argue any meaningful connection between the sweater witnesses observed defendant wearing and
the murder of Walter Contreras. The State has not argued that in the
absence of the confession and DNA evidence the sweater is sufficient to tie
defendant to this crime. That a person other than defendant may have been
seen wearing a similar sweater, at most, nibbles away at the margins of
the State’s case. If the defense decides to pursue this strategy, it can
do so by establishing that fourteen other people were sighted wearing a similar
sweater. The evidence, however, no more implicates Ray Hughes in the commission of
the crime than the other thirteen people associated with the distinctive sweater.
Hughes’ threat to Jolene Proctor, apparently because her statement to the police led
to his interrogation, may have increased the level of interest in Hughes by
law enforcement authorities, but it did not implicate him in the murder. The
threat, in fact, was taken by the State as a crude expression of
pique by Hughes that his name was dragged into the investigation. Without any
evidence tying Hughes to the murder, the threat can hardly be deemed as
evidence of consciousness of guilt of the crime or, in other words, an
implicit admission that he committed the brutal slaying. Koedatich, supra, 112 N.J. at
306-08. The threat, at best, is insolubly ambiguous concerning the murder and devoid
of any evidential meaning in defendant’s case. The threat has no “tendency in
reason to prove or disprove any fact of consequence” to defendant’s culpability in
the crime and, therefore, would be inadmissible, given the record before this Court.
N.J.R.E. 401. Reasonable doubt can arise from the introduction of relevant third-party guilt.
There is no evidence, however, linking Hughes to the crime that would permit
such an argument. Koedatich, supra, 112 N.J. at 304 (stating that “‘[d]isconnected and
remote acts, outside the crime itself . . . which can have no
other effect . . . than to cast a bare suspicion on another,
or to raise a conjectural inference as to the commission of the crime
by another [are] not admissible’”) (quoting State v. LaRette,
648 S.W.2d 96, 103
(Mo.), cert. denied,
464 U.S. 908,
104 S. Ct. 262,
78 L. Ed. 2d 246 (1983)). See also State v. Loftin,
287 N.J. Super. 76, 103
(App. Div.) (affirming trial court’s exclusion of evidence where proffer of third-party guilt
was incapable of raising reasonable doubt on issue of defendant’s guilt), certif. denied,
144 N.J. 175 (1996). In conclusion, there is no more substance to the
third-party guilt defense in this case than in Sturdivant or Koedatich.
Our dissenting colleagues take the position that the threat to Proctor was admissible
as evidence of Hughes’ consciousness of guilt of the Contreras murder, citing as
support State v. Rechtschaffer,
70 N.J. 395 (1976), and State v. West,
145 N.J. Super. 226 (App. Div. 1976), certif. denied,
73 N.J. 67 (1977). These
cases are inapposite. Rechtschaffer involved a defendant who had attempted a sale of
drugs to an undercover police officer. After his arrest, the defendant told a
police officer that if he learned the identity of the person who “‘informed
on him he would take his hunting knife and kill him.’” 70 N.J.
at 401. This Court upheld the admissibility of that threat because it established
defendant’s consciousness of guilt of the drug offense. Id. at 413, 415. In
Rechtschaffer, there was direct evidence linking the defendant to the underlying crime through
the testimony of the undercover police officer. Id. at 400-01, 413. Here, there
is no direct or circumstantial evidence tying Hughes to the Contreras murder. State
v. West, supra, offers little support to the dissent because it stands for
the unremarkable proposition that a declaration against interest that is relevant may be
admitted if it raises a reasonable doubt as to defendant’s guilt. 145 N.J.
Super. at 233.
It also bears mentioning again that defendant has the benefit of representation by
two lawyers. No one has questioned the independence or objectivity of Joseph Krakora,
an experienced and seasoned defense attorney, or suggested that he is compromised by
divided loyalty. Krakora is well versed in the practical realities of defending a
capital case and, at oral argument before this Court, expressed his view that
attempting to implicate Hughes on such threadbare evidence would impair the defense and
likely strip it of all credibility:
I don’t agree that the evidence is even admissible if offered to show
that Hughes participated in the crime. But beyond that, as a tactical matter,
my experience has taught me for years that to put up a defense
that is based on nothing, that doesn’t advance in any meaningful way to
a jury your client’s cause, is worse than not doing it at all.
To put in completely weak, unsubstantiated evidence, even if deemed relevant by a
trial judge, that somebody else participated in the crime, with no proof of
that whatsoever, in my view . . . is the worst possible approach.
A defense of third-party guilt, according to Krakora, does not hinge on the
outcome of a judicial determination on the admissibility of the confession or the
DNA evidence. He told this Court that “the case against Hughes doesn’t become
any better because some portion of the case against Jimenez is deemed to
be inadmissible.” The stakes are high in a capital case. A tactical blunder
—— proffering a specious defense —— can have fatal consequences.
We conclude that there is no actual conflict of interest or appearance of
impropriety in Mann’s serving as co-counsel to this capital defendant. Mann’s representation of
Jimenez was never materially adverse to her representation of Hughes, including when she
represented Hughes at the time of his plea. “An appearance of impropriety must
be ‘something more than a fanciful possibility’ and ‘must have some reasonable basis.’”
Loyal, supra, 164 N.J. at 429 (quoting In re Opinion No. 653,
132 N.J. 124, 132 (1993)). An “ordinary knowledgeable citizen acquainted with the facts” would
not have any reasonable basis to believe that there is a plausible third-party
guilt case involving Hughes and, therefore, Mann’s remaining as counsel in this case
will not disserve the interests of defendant, Hughes, or the public.
The motion judge inquired of defendant, although not at great length, whether he
wished Mann to continue as his attorney. Defendant gave his consent. Although the
rationale of our decision does not require consent under the Rules of Professional
Conduct, we add these words of caution. Given the interests at stake in
this capital case, prudence dictates that the judge should conduct a colloquy on
the record and determine that defendant knows the full circumstances of Mann’s prior
representation of Hughes. Defendant should be informed that several witnesses identified Hughes as
having worn the distinctive sweater that the State will argue defendant abandoned after
the murder; that Hughes threatened a person who caused him to be interviewed
by the police; and that Hughes pled guilty to harassing that person. Defendant
should also be informed on the record why defense counsel does not intend
to pursue a defense of third-party guilt involving Hughes. With a complete knowledge
and understanding of the import of these facts, defendant may then voluntarily consent
to have Mann continue to represent him.
The defense attorneys in this case know that falsely implicating Hughes in the
murder is a bad strategy that will damage their credibility and increase the
likelihood of irreparably harming their client. The Rules of Professional Conduct cannot compel
the removal of an attorney because, as a tactical matter, she should keep
open the option of a third-party guilt defense where there is no reasonable
basis to assert the defense.
We therefore affirm the judgment of the motion judge and remand for consideration
in accordance with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO and ZAZZALI join in JUSTICE ALBIN’s opinion.
JUSTICE LONG filed a separate dissenting opinion in which JUSTICES COLEMAN and LaVECCHIA
join.
SUPREME COURT OF NEW JERSEY
A-115-
01 September Term 2001
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
PORFIRIO JIMENEZ,
Defendant-Respondent.
LONG, J., dissenting.
Whether Dolores Mann’s affront to our ethic rules was a conflict, a potential
conflict, or an appearance of impropriety may be subject to dispute; what is
not open to question is that she should have been disqualified from continuing
to represent defendant, Porfirio Jimenez, as he fights for his life in this
capital murder case.
On June 8, 2001, Jimenez was charged with the kidnapping and murder of
Walter Contreras, and Dolores Mann became his lawyer. Thereafter, simultaneous with her representation
of Jimenez, Mann became counsel for Raymond Hughes who was also a suspect
in the Contreras killing. Hughes had been charged with terroristic threats arising out
of the investigation of the murder case and on July 18, 2001, with
Mann at his side, entered a plea to harassment.
Hughes had been tied to the murder case through a sweater that the
police thought was worn by the killer. He submitted to a polygraph examination
that did not exonerate him. Thereafter, he threatened a witness that he believed
had given the police information about his connection to the homicide. That was
the source of the terroristic threats charge.
Those threats were legally admissible evidence of Hughes’s consciousness of guilt of the
murder. State v. Rechtschaffer,
70 N.J. 395, 413 (1976) (stating that defendant’s statement
that he would kill person who informed against him was admissible as statement
against interest); State v. West,
145 N.J. Super. 226, 232-33 (App. Div. 1976)
(holding rule applicable to witness), certif. denied,
73 N.J. 67 (1977). Thus, when
Mann represented Hughes at the plea and allowed him to place on the
record a benign explanation for the threats, her actions directly contravened the interests
of Jimenez.
The State recognized the problem of dual representation in which Mann had become
embroiled and moved to disqualify her. To extricate herself from the situation, Mann
then took the position that she would not use a third-party guilt defense
involving Hughes in her representation of Jimenez. That did not eliminate the conflict
but only highlighted it.
The majority appears to accept the notion that Mann was free to forswear
use of third-party guilt because the defense is not a viable one. I
agree that it is doubtful that the terroristic threats would have been admissible
at the trial of Jimenez without further evidence linking Hughes to the murder.
However, at the incipient stage of the case at which Mann jettisoned third-party
guilt, she had no way to predict whether industrious investigation would uncover such
a link. By forswearing possible defenses at such an early stage, no matter
how weak they might have appeared, for reasons external to the merits and
related to her representation of Hughes, Mann was in a position of conflict.
As a confidante and representative of both defendants, she could not be faithful
to either. The interdiction of that kind of simultaneous conflicting representation is hornbook
law, reaffirmed by us as recently as last month in State in the
Interest of S.G., ___ N.J. ___, ___ (2003) (slip op. at 7-11) (citing
RPC 1.7). It may be, as the majority suggests, that at this point,
the defense can say with assurance that third-party guilt cannot be advanced. That
simply does not validate Mann’s prior conduct.
At the very least, this case involves an appearance of impropriety. See RPC
1.7(c) (setting forth appearance of impropriety rule). Although debate is raging over the
continued vitality of that concept in other contexts, it is a critical factor
in a capital case, where public confidence in the fairness of the proceedings
leading to the verdict is a paramount consideration. State v. Loyal,
164 N.J. 418, 430 (2000) (observing that when appearance of impropriety is found in criminal
matter, disqualification of attorney is regularly required); State v. Rivera,
232 N.J. Super. 165, 177-78 (App. Div.) (recognizing that attorneys may be disqualified under conflict of
interest rules where defendant’s right to counsel of choice is outweighed by need
to preserve public confidence in judicial system), certif. denied,
117 N.J. 169 (1989).
Mann’s actions will shadow the trial of this case. If there is a
conviction, we will see this issue again on direct appeal and post-conviction relief,
as will the federal court. Standing alone, that is a matter that Mann
should have taken into account in her ill-considered dual representation of Jimenez and
Hughes. Failing that, our courts should have intervened at the early stages of
the case.
Justices Coleman and LaVecchia join in this dissent.
SUPREME COURT OF NEW JERSEY
NO. A-115 SEPTEMBER TERM 2001
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
PORFIRIO JIMENEZ,
Defendant-Respondent.
DECIDED February 27, 2003
Chief Justice Poritz PRESIDING
OPINION BY Justice Albin
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Long
CHECKLIST
Footnote: 1
Without addressing whether the Jimenez and Hughes matters are substantially related, the defense
conceded during oral argument before this Court that a viable defense of third-party
guilt would likely require Mann’s disqualification from the case.