STATE OF NEW JERSEY VS. SHAHEED L. BROWN (18-11-0671 AND 19-04-0235, MERCER COUNTY AND STATEWIDE) ( 2020 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0654-19T2
    STATE OF NEW JERSEY,
    Plaintiff-Appellant,
    v.
    SHAHEED L. BROWN,
    Defendant-Respondent.
    ______________________________
    Argued December 16, 2019 – Decided January 24, 2020
    Before Judges Rothstadt and Mitterhoff.
    On appeal from an interlocutory order of the Superior
    Court of New Jersey, Law Division, Mercer County,
    Indictment Nos. 18-11-0671 and 19-04-0235.
    Michael D. Grillo, Assistant Prosecutor, argued the
    cause for appellant (Angelo J. Onofri, Mercer County
    Prosecutor, attorney; Michael D. Grillo and Randolph
    E. Mershon III, Assistant Prosecutor, of counsel and on
    the brief).
    Edward Harrington Heyburn argued the cause for
    respondent.
    PER CURIAM
    In this interlocutory appeal arising out of one homicide and one attempted
    murder prosecution, the State contests the trial court's order denying its motion
    to disqualify Edward Harrington Heyburn as counsel for defendant Shaheed L.
    Brown.    Heyburn has continuously represented defendant in the subject
    prosecutions, including appearing as counsel at three trials, at which the juries
    could not reach a verdict. The State contends that Heyburn is disqualified from
    continuing to represent his client under Rule of Professional Conduct (RPC)
    3.7(a) because he is allegedly a "necessary witness" at trial, and his withdrawal
    from the case will not create a substantial hardship for defendant. The trial court
    rejected that contention, and so do we.
    I.
    A.
    In order to give context to the State's application, we briefly review the
    procedural history that existed at the time of the State's motion. This matter
    arose from separate indictments charging defendant with crimes associated with
    the shooting of K.J.1 on May 25, 2014, and the murder of E.S. on July 12, 2014.2
    1
    We use initials to protect the privacy of the witnesses and the decedent's
    family.
    2
    According to the State, its ballistics reports confirmed the same handgun was
    used in both shootings.
    A-0654-19T2
    2
    The first indictment was returned in November 2014 and it charged
    defendant with the first-degree murder, N.J.S.A. 2C:11-3(a)(1), of E.S. and with
    three second-degree weapons offenses. These were the charges presented at the
    three trials at which Heyburn represented defendant, and each time the jury was
    unable to reach a verdict as to any of the charges. After the third trial, Heyburn
    filed a motion on defendant's behalf to dismiss that indictment. Before the
    motion was decided, on November 16, 2018, a Grand Jury returned a
    superseding indictment, charging defendant and a co-defendant with the first-
    degree murder of E.S. and weapons offenses. Defendant filed a motion to
    dismiss the superseding indictment, and the State filed opposition on April 16,
    2019. As we understand the record, that motion is still pending.
    In the meantime, on January 22 and 28, 2019, defendant was charged by
    police with new offenses related to the May 25, 2014 shooting of K.J. and
    tampering with a witness on December 27, 2018. In April 2019, a Grand Jury
    returned an indictment charging defendant with first-degree attempted murder
    of K.J., N.J.S.A. 2C:11-3 and 2C:5-1; second-degree aggravated assault under
    N.J.S.A. 2C:12-1(b)(1); second-degree unlawful possession of a handgun under
    N.J.S.A. 2C:39-5(b)(1); second-degree possession of a firearm for an unlawful
    purpose under N.J.S.A. 2C:39-4(a); first-degree tampering with a witness under
    A-0654-19T2
    3
    N.J.S.A. 2C:28-5(a); and second-degree certain persons not to possess a firearm
    under N.J.S.A. 2C:39-7.
    B.
    On June 14, 2019, the State filed its motion to disqualify Heyburn from
    representing defendant in either of the pending matters. The facts leading to the
    motion as derived from the motion record are summarized as follows.
    The State's contentions about Heyburn relate to his conversation in 2019
    with G.V., a witness to the May 25, 2014 shooting of K.J. On April 24, 2019,
    Heyburn sent a letter to the State providing a copy of a handwritten statement
    dated January 15, 2019, that he received from G.V. In his statement, G.V.
    explained he was present when K.J. was shot and, at the time, he could not see
    the shooter's face because the shooter was wearing a hooded sweatshirt over his
    face, which could also have been a mask.
    G.V.'s statement was consistent with K.J.'s initial report to the police that
    he made a few days after the shooting in 2014. K.J. told the police that he was
    sitting on a porch when a male wearing a mask began shooting toward him.
    However, in January 2019, K.J. positively identified the shooter as defendant in
    another formal statement taken by police. In his new statement, K.J. explained
    that he and G.V. were sitting on the porch when defendant noticed him, walked
    A-0654-19T2
    4
    in front of the house, pulled out a gun, and fired at him. K.J. thought defendant
    was shooting at G.V. and pushed his friend out of the way. It was then that
    defendant wounded K.J.
    Although K.J. did not initially know who shot him, he claimed he
    recognized defendant's face when he later saw his photo in the newspaper report
    about the murder of E.S. K.J. explained in 2019 that he did not initially come
    forward after recognizing defendant as the man who shot him because he did not
    want to confront the situation. He later did so when he became concerned for
    his safety after defendant appeared at his place of employment on December 27,
    2018, threatened him directly, and otherwise caused others to convey threats on
    defendant's behalf.
    Against this backdrop, and after receiving Heyburn's April 2019 letter
    with G.V.'s January 15, 2019 statement, detectives met with G.V. and recorded
    his statements to them. According to G.V., he wrote his statement sometime
    around February after Heyburn had contacted him.           G.V. confirmed that
    Heyburn had not asked him to write the letter and after the detectives showed
    him the document, he confirmed it was his and that the January 15, 2019 date
    was correct. Notably, the date preceded defendant's arrest on charges related to
    K.J. by seven days.
    A-0654-19T2
    5
    According to Heyburn, and despite the earlier date on G.V.'s statement,
    he called G.V. in early February 2019, and after determining that G.V. would
    not give him or his investigator a statement in person, he asked G.V. to write a
    statement and send it to him, which G.V. agreed to do. After some time passed
    without receiving G.V.'s statement, Heyburn made several calls trying to see if
    G.V. was going to follow through with their earlier conversation. After Heyburn
    was able to speak to G.V. again, he delivered the statement to Heyburn's office,
    at Heyburn's request. Heyburn then sent a copy to the prosecutor.
    In light of the possibility that defendant would call G.V. at trial, the State
    decided that it would need to call Heyburn as a witness to rebut G.V.'s testimony.
    Specifically, the State thought that through Heyburn, it could impeach G.V.'s
    testimony that the statement was not written at Heyburn's request and that the
    date of the letter that G.V. confirmed to be accurate was inconsistent with
    Heyburn's statement that he did not have any contact with G.V. until February
    2019, which was after the letter was supposedly written by G.V. For that reason,
    the State sought Heyburn's disqualification.
    On August 28, 2019, the trial court considered oral argument on the State's
    motion to disqualify Heyburn before denying the motion and placing its reasons
    on the record that day. The court first determined that in deciding whether
    A-0654-19T2
    6
    Heyburn was a "necessary witness" under RPC 3.7(a), the word "necessary"
    meant that there was "no other possible way to obtain the same information to
    which the attorney would be likely to testify." Given that the central issue was
    the alleged inconsistencies between the date on G.V.'s handwritten letter and
    Heyburn's statement that G.V.'s statement was provided at a slightly later date,
    the court found "it would seem more logical to conclude that any inconsistency,
    if any, would be the result of a dating error on the part of G.V. and not on . . .
    Heyburn's."
    The trial court concluded that Heyburn was not a necessary witness
    because neither Heyburn nor G.V. made any statements, assertions, or
    implications suggesting Heyburn had any prior knowledge or input into the
    drafting of G.V.'s written statement. The court stated there was no suggestion
    that the statement was "manufactured or even influenced by . . . Heyburn," and
    "since . . . Heyburn did not create the statement or have any personal knowledge
    regarding the statement itself or the information provided in it, the necessary
    witness [was G.V.] not . . . Heyburn." For that reason, the trial court concluded
    that G.V. and not Heyburn was a necessary witness and Heyburn "would be
    offered as an impeachment witness for the [S]tate [at] best."
    A-0654-19T2
    7
    The trial court also found that even if Heyburn was considered a necessary
    witness, his removal would cause the type of substantial hardship contemplated
    by RPC 3.7(a)(3). The court observed that because Heyburn was "intimately
    familiar with" and was "consistently involved in the defendant's initial case" for
    numerous years, it would present a "substantial hardship on the defendant to
    recuse . . . Heyburn and require a new attorney to become as intimate and
    familiar with the details of the case without having been involved from the
    beginning." Moreover, the court noted that since the State was arguing that both
    indictments were intertwined, "it would not be possible to recuse . . . Heyburn
    without causing substantial hardship to . . . defendant in terms of the knowledge
    and experience that the defense counsel could use for both files."
    The trial court concluded that it was "not satisfied that the State . . . met
    its heavy burden required for a recusal, and that the recusal of . . . Heyburn [was]
    unnecessary and would work substantial hardship to the defendant . . . ." This
    appeal followed.
    II.
    A.
    A trial court's decision to grant or deny a motion to disqualify an attorney
    "is made as a matter of law." Twenty-First Century Rail Corp. v. N.J. Transit
    A-0654-19T2
    8
    Corp., 
    210 N.J. 264
    , 274 (2012). For that reason, the decision is subject to our
    "de novo plenary review." 
    Ibid. (citing City of
    Atl. City v. Trupos, 
    201 N.J. 447
    , 463 (2010)).
    The United States Constitution's "Sixth Amendment 'commands . . . that
    the accused be defended by the counsel he believes to be best.'" State v. Kates,
    
    426 N.J. Super. 32
    , 43 (App. Div. 2012) (alteration in original) (quoting United
    States v. Gonzalez-Lopez, 
    548 U.S. 140
    , 146 (2006)).                 The erroneous
    deprivation of that right as a "structural error" requires reversal because it affects
    the "framework within which the trial proceeds." 
    Gonzalez-Lopez, 548 U.S. at 150
    (first quoting Sullivan v. Louisiana, 
    508 U.S. 275
    , 282 (1993); and then
    quoting Arizona v. Fulminante, 
    499 U.S. 279
    , 310 (1991)); see also State v.
    Kates, 
    216 N.J. 393
    , 395-96 (2014). For that reason, it is beyond cavil that a
    defendant's right to counsel of his or her choosing is a paramount value in our
    criminal justice system.
    A defendant is entitled to have "a fair opportunity" to counsel of his or her
    choice.   State ex rel. S.G., 
    175 N.J. 132
    , 140 (2003).             A defendant is
    constitutionally entitled to choose which lawyer will represent him or her, so
    long as that counsel is not court-appointed. 
    Kates, 426 N.J. Super. at 43
    .
    However, the right to select counsel is not absolute, and can be curtailed by
    A-0654-19T2
    9
    certain restrictions, including the court's "independent interest in ensuring that
    criminal trials are conducted within the ethical standards of the profession and
    that legal proceedings appear fair to all who observe them." 
    Gonzalez-Lopez, 548 U.S. at 152
    (quoting Wheat v. United States, 
    486 U.S. 153
    , 160 (1988)).
    In a motion to disqualify counsel, the moving party bears the burden of
    proving that disqualification is appropriate. Dewey v. R.J. Reynolds Tobacco
    Co., 
    109 N.J. 201
    , 221-22 (1988). "[D]isqualification is considered a 'drastic
    measure which courts should hesitate to impose except when absolutely
    necessary.'" Alexander v. Primerica Holdings, Inc., 
    822 F. Supp. 1099
    , 1114
    (D.N.J. 1993) (quoting Schiessle v. Stephens, 
    717 F.2d 417
    , 420 (7th Cir.
    1983)); see also Cavallaro v. Jamco Prop. Mgmt., 
    334 N.J. Super. 557
    , 572 (App.
    Div. 2000) (stating that the disqualification of an attorney selected by a client
    "is a harsh discretionary remedy which must be used sparingly."). Importantly,
    "a defendant's 'choice of counsel is not to be dealt with lightly or arbitrarily.
    That choice should not be interfered with in cases where [the reasons for
    disqualification] are highly speculative.'" United States v. Lacerda, 
    929 F. Supp. 2d
    349, 360 (D.N.J. 2013) (quoting United States v. Flanagan, 
    679 F.2d 1072
    ,
    1076 (3d Cir. 1982)).
    A-0654-19T2
    10
    B.
    With those guiding principles in mind, we turn to the State's contention
    that it met its burden to establish Heyburn was a necessary witness under RPC
    3.7(a) because "the unresolved timeline of the communication between [G.V.]
    and . . . Heyburn, and the discrepancy surrounding when and how the statement
    was created, rather than the content of the statement" required his testimony.
    Significant to the State's argument is that if G.V. is to be believed, as compared
    to Heyburn, defense counsel spoke to G.V. weeks before G.V. wrote the note
    that is dated seven days before J.K. even gave his statement to police identifying
    defendant as his shooter and prior to defendant's arrest later that day. The State
    argues that Heyburn's testimony may be used to prove G.V.'s statement was
    fabricated and additionally, to prove that Heyburn's testimony is "an attempt to
    alter the date on which [G.V.] wrote his statement." In order to prove G.V.'s
    statement was fabricated, the State argues it "must call . . . Heyburn to fully
    develop the contradictory versions of the communication between [G.V.]
    and . . . Heyburn." We disagree.
    RPC 3.7 provides, in pertinent part, that "[a] lawyer shall not act as
    advocate at a trial in which the lawyer is likely to be a necessary witness
    unless . . . disqualification of the lawyer would work substantial hardship on the
    A-0654-19T2
    11
    client." "The ethical prohibition is not against being a witness, but against acting
    as trial attorney in a case where it is likely that the attorney's testimony will be
    necessary." State v. Tanksley, 
    245 N.J. Super. 390
    , 393 (App. Div. 1991).
    Importantly, the rule does not require certainty that a lawyer will testify, only "a
    likelihood that a lawyer will be a necessary witness." J.G. Ries & Sons, Inc. v.
    Spectraserv, Inc., 
    384 N.J. Super. 216
    , 230 (App. Div. 2006). RPC 3.7 is meant
    to protect the client's interest to make sure that all evidence to advance his or
    her position is available and used in a trial to further a just result. See Freeman
    v. Vicchiarelli, 
    827 F. Supp. 300
    , 306 (D.N.J. 1993).
    Although RPC 3.7 does not require certainty that an attorney will testify
    to warrant disqualification, the requisite "likelihood" must be that the attorney
    will be a "necessary witness," i.e., that the attorney can provide evidence that is
    not available through other means. J.G. Ries & Sons, 
    Inc., 384 N.J. Super. at 230
    (mere representation that the adversary will call an attorney as a witness
    "does not satisfy the threshold requirements of RPC 3.7, which specifies a
    likelihood that a lawyer will be a necessary witness."). Testimony is considered
    "necessary" if concealing it would prejudice the client or prevent the court from
    making a just decision. State v. Dayton, 
    292 N.J. Super. 76
    , 86 (App. Div.
    1996).
    A-0654-19T2
    12
    Applying these definitions, we agree with the trial court that Heyburn is
    not a necessary witness. There is nothing presented by the State to establish that
    Heyburn will contradict G.V.'s statement that the assailant was wearing a mask,
    and there is nothing to prevent it from cross examining G.V. about
    inconsistencies that are not disputed about the date or questioning whether it
    was prepared at Heyburn's request. Moreover, the State has not established that
    Heyburn was involved with the drafting of G.V.'s statement or suggesting what
    it should say.
    Even if Heyburn is a necessary witness, we agree with the trial court that
    weighing the prejudice of the State's possible need for Heyburn to testify about
    G.V.'s statement's date or whether it was prepared at Heyburn's request do not
    outweigh the substantial prejudice defendant will experience if Heyburn is
    removed as his attorney. Whether an attorney's disqualification constitutes a
    substantial hardship to his or her client depends, among other things, on the
    amount of time and money invested by the client in his counsel, and the
    proximity to trial. See 
    Freeman, 827 F. Supp. at 304-05
    ; see also 
    Dewey, 109 N.J. at 218-19
    (denying a motion to disqualify under RPC 1.7 and 1.9 because
    counsel had expended over 1800 hours in case preparation and the proximity of
    A-0654-19T2
    13
    trial rendered it too difficult for a new attorney to familiarize themselves with
    the matter).
    Here, it is undisputed that Heyburn has been representing defendant for
    five years through three trials and numerous motions without charging defendant
    for his services. Although there is no trial date set for this matter, the intricacies
    of the indictments necessitate permitting Heyburn to remain as defendant's
    counsel. The State's contention that the lack of a trial date would provide
    defendant with ample opportunity to obtain a new counselor or to have a public
    defender appointed fails to acknowledge the length of time Heyburn has been
    representing defendant, the associated time that he has invested into defendant's
    matters, his knowledge of the cases, and defendant's logical choice to have
    Heyburn continue to represent him. We see no equitable reason to deprive
    defendant of his trial attorney at this late juncture. See RPC 3.7(a)(3).
    Affirmed.
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    14