State of New Jersey v. Dana Kearney ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2638-22
STATE OF NEW JERSEY APPROVED FOR PUBLICATION
September 18, 2024
Plaintiff-Respondent,
APPELLATIE DVISION
v.
DANA KEARNEY,
Defendant-Appellant.
Submitted September 12, 2024 – Decided September 18, 2024
Before Judges Sabatino, Berdote Byrne, and Jacobs.
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No. 16-
10-1645.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Erin M. Campbell, Assistant
Prosecutor, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
Defendant Dana Kearney, who was convicted of murder and other
offenses at his 2017 jury trial, appeals the trial court's denial of his petition for
postconviction relief ("PCR") without an evidentiary hearing. He alleges his
trial counsel was constitutionally ineffective in two respects.
In this opinion we afford substantial discussion as to one of those
claims: whether defendant's representation was compromised because his co-
parent and girlfriend, who was called at trial as a fact witness for the State,
paid for the legal fees of his private criminal defense attorney. Defendant
alleges the fee arrangement created an untenable conflict of interest.
For the reasons that follow, we affirm the PCR court's determination that
defendant was not deprived of effective representation of his counsel, who
represented him zealously at trial. In particular, defense counsel vigorously
cross examined the witness, who had paid his fees, about certain incriminating
statements she made regarding defendant to police detectives.
We agree with the PCR court that the fee arrangement, of which
defendant was surely aware, did not create a per se conflict of interest that
disqualified his counsel in the circumstances presented. Nor has defendant
shown he was actually prejudiced or subject to a great likelihood of such
prejudice.
I.
The background facts and procedural history are detailed in our 2020
unpublished opinion affirming the convictions of defendant and his two
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codefendants, Shane Timmons and Joseph Kearney. State v. Timmons, et al.,
A-2567-17, A-2843-27, A-4138-17 (App. Div. Jan. 7, 2020). We incorporate
those details here by reference.
Briefly stated, the indictment stemmed from the fatal stabbing of the
victim, Christopher Sharp, on August 18, 2013, at a house in Perth Amboy
where defendant's girlfriend and co-parent, Alicia Boone, resided with
defendant and her three children. Sharp was Boone's cousin. A party took
place at the house that night, at which defendant was present. An argument
between defendant and Sharp ensued. According to the State's proofs,
defendant stabbed Sharp three times sometime in the early morning.
The jury found defendant guilty of murder and other serious offenses
and also found his two codefendants guilty of charged offenses. The trial court
sentenced defendant to an aggregate fifty-year sentence with a forty-year
period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-
7.2.
Our lengthy unpublished opinion of January 7, 2020 affirmed the
convictions and sentences of all three defendants. Timmons, slip op. at 1. The
Supreme Court denied this defendant's petition for certification. State v. Dana
Kearney, 244 N.J. 349 (2020).
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In his PCR petition, defendant made two claims now before us alleging
his trial counsel—who is now deceased—was ineffective. First, he mainly
argues his attorney had a conflict of interest because his defense fees were paid
by Boone, who was called as a witness for the State at trial. Second, he claims
his lawyer failed to give him proper advice about his right to testify under the
Fifth Amendment. The PCR judge rejected both claims. On the conflict issue,
she found no per se ethical violation in the fee arrangement. On the Fifth
Amendment issue, she was satisfied the trial transcript clearly showed
defendant agreed on the record that counsel had advised him of his right to
testify.
In his brief on appeal, defendant advances the following arguments:
I. TRIAL COUNSEL'S INHERENT CONFLICT OF
INTEREST, THAT THE STATE'S MAIN WITNESS
HIRED AND PAID FOR DEFENDANT'S TRIAL
COUNSEL, CONSTITUTES PER SE
INEFFECTIVENESS AND MANDATES THAT
DEFENDANT'S CONVICTIONS BE REVERSED; IN
THE ALTERNATIVE, THIS MATTER MUST BE
REMANDED FOR AN EVIDENTIARY HEARING
BECAUSE DEFENDANT ESTABLISHED A PRIMA
FACIE CASE OF TRIAL COUNSEL'S
INEFFECTIVENESS.
II. TRIAL COUNSEL'S ABRIDGING DEFENDANT'S
CONSTITUIONAL RIGHT TO TESTIFY
CONSTITUTES INEFFECTIVENESS OF COUNSEL
AND MANDATES THAT DEFENDANT'S
CONVICTIONS BE REVERSED; IN THE
ALTERNATIVE, THIS MATTER MUST BE
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REMANDED FOR AN EVIDENTIARY HEARING
BECAUSE DEFENDANT ESTABLISHED A PRIMA
FACIE CASE OF TRIAL COUNSEL'S
INEFFECTIVENESS.
We reject these arguments, having applied the relevant legal principles
to the record.
II.
Our analysis applies well established standards that govern a criminal
defendant's claims of ineffective assistance of counsel. Under the Sixth
Amendment of the United States Constitution, a person accused of crimes is
guaranteed the effective assistance of legal counsel in that person's defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Cottle, 194 N.J.
449, 466 (2008). To establish a deprivation of that right, a convicted
defendant must satisfy the two-part test prescribed in Strickland by
demonstrating that: (1) counsel's performance was deficient, and (2) the
deficient performance actually prejudiced the accused's defense. Strickland,
466 U.S. at 687; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland two-part test in New Jersey).
With respect to the first prong of deficient performance, "the test is
whether counsel's conduct fell below an objective standard of reasonableness."
State v. Savage, 120 N.J. 594, 614 (1990) (citing Strickland, 466 U.S. at 688).
"[A] defendant challenging assistance of counsel must demonstrate that
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counsel's actions were beyond the 'wide range of professionally competent
assistance.'" Ibid. (quoting Strickland, 466 U.S. at 690).
Courts apply a strong presumption that defense counsel "rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment." Strickland, 466 U.S. at 690. Given that
presumption, "complaints 'merely of matters of trial strategy' will not serve to
ground a constitutional claim of inadequacy." Fritz, 105 N.J. at 54 (quoting
State v. Williams, 39 N.J. 471, 489 (1963)); see also State v. Echols, 199 N.J.
344, 357-59 (2009). "The quality of counsel's performance cannot be fairly
assessed by focusing on a handful of issues while ignoring the totality of
counsel's performance in the context of the State's evidence of defendant's
guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall,
123 N.J. 1, 165 (1991)). "To rebut that presumption, a defendant must
establish that trial counsel's actions did not equate to 'sound trial strategy.'"
State v. Chew, 179 N.J. 186, 203 (2004) (quoting Strickland, 466 U.S. at 689).
"In evaluating a defendant's claim, the court 'must judge the reasonableness of
counsel's challenged conduct on the facts of the particular case, viewed as of
the time of the attorney's conduct.'" Ibid. (quoting Strickland, 466 U.S. at
690).
"[T]o satisfy the second prong—that a defendant has been prejudiced by
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counsel's actions—there must be a 'reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.'" Savage, 120 N.J. at 614 (quoting Strickland, 466
U.S. at 694). "[T]he ultimate focus of inquiry must be on the fundamental
fairness of the proceeding whose result is being challenged." Strickland, 466
U.S. at 696.
Here, as is often the case, defendant's claims of counsel's ineffectiveness
have been asserted through a PCR petition. A defendant must establish by a
preponderance of the credible evidence entitlement to the relief requested in
the petition. State v. Nash, 212 N.J. 518, 541 (2013). To sustain that burden,
the defendant must allege and articulate specific facts that "provide the court
with an adequate basis on which to rest its decision." State v. Mitchell, 126
N.J. 565, 579 (1992). "[B]ald assertions" of deficient performance are simply
insufficient to support a PCR application. State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999); see also R. 3:22-10(b); State v. Porter, 216 N.J.
343, 355 (2013) (reaffirming these principles in evaluating which of a
defendant's various PCR claims warranted an evidentiary hearing).
With these general principles in mind, we turn to defendant's specific
claims.
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A.
Defendant's conflict of interest argument warrants our more extensive
discussion. His specific claim that his trial counsel was per se compromised
because a prosecution witness paid his defense counsel's fees has not
previously been the subject of a published opinion in our State. The following
circumstances in the record inform our analysis.
1.
As we noted above, this criminal case arose from the stabbing death of
Sharp at the home of Boone. The stabbing occurred in the early morning hours
of August 18, 2013, following a gathering that began at the home the day
before. Boone lived in Perth Amboy with her three children, and the youngest
child's father, defendant. Timmons, slip op. at 6. Boone, the witness who is at
issue on appeal, was defendant's then-girlfriend and co-parent of her youngest
child, and Sharp's cousin. Boone did not observe the stabbing, as she had left
for her mother's house with her children beforehand. Boone had given
defendant a ride to her mother's house and then had a conversation with
defendant about him needing to go back to her house to check on Sharp.
Boone learned later of Sharp's death.
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Boone's Three Interviews and Statements to Police
Following the homicide, Police Detective Marcos Valera and Police
Sergeant Jose Rodriguez interviewed Boone three times at the Perth Amboy
police station. Timmons, slip op. at 17. Boone's first statement to police
occurred on the morning of August 18, 2013, a few hours after Sharp's death.
At trial, Boone acknowledged she told the police in her first interview
that, shortly after the incident, defendant had told her he needed to return to
her house because "Chris got cut," referring to the victim.
Boone's second statement to the police took place later that afternoon. In
her second statement, Boone expressed concerns for her family "because
[defendant] was 'mean.'" Timmons, slip op. at 18. "She said her first
statement to the officers was '90 percent true.'" Ibid. Boone acknowledged
"initially telling detectives that [defendant] said he thought [Sharp] was 'cut,'
but told them in her second statement that [defendant] said he 'poked' Sharp or
'another word like that.'" Ibid.On August 21, Boone voluntarily returned to the police station and gave
a third statement. Ibid. She recounted in that third statement that defendant
admitted to her, "'I poked Chris.'" Ibid.Boone's Trial Testimony
The State called Boone as a witness at trial, essentially to confirm the
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substance of her statements to the police. The State specifically elicited
Boone's recounting during her second and third interviews that defendant told
her he had "poked" Sharp.
During Boone's cross-examination, defendant's counsel 1 zeroed in on the
seven hours between Boone's first and second statements to the police.
Defendant's counsel elicited testimony from Boone that she had been scared
after an off-the-record conversation with another Police Detective, Carlos
Rodriguez, which occurred in between her first and second statements, in
which that detective allegedly "insinuated [Boone] wasn't going home."
Boone agreed with counsel's query that she changed her statement regarding
defendant because of that intimidation, and that "in a sense the[] [police] kind
of broke [her]."
On redirect, Boone was vague in her recollection of the timing of her
interaction with Detective Carlos Rodriguez and how and why her demeanor
changed for the second statement. In this regard, Boone testified that
[e]veryone had left. So, I asked Detective [Carlos]
Rodriguez, I said,—I said, everybody's leaving. And
he said, yeah. And I said, am I being locked up? No.
I said, is there—I said, everyone's—I said, am I being
1
Counsel for the two other codefendants also questioned Boone, but less
extensively, after this defendant's counsel's cross-examination. They did not
avail themselves of re-cross. Throughout this opinion, the counsel at issue in
this appeal will be identified as "defendant's counsel" or "his counsel."
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locked up for something? And he said, well why do
you ask that? And I said, because you let everyone
leave but me. And he said, now that's a good
observation. I insinuated that meant I was not going
home, because all he had to say was yes or no. And
that's not what he said.
Boone elaborated further about her conversation with the detective:
Then he told me, come on, Alicia. He said,
come on, you got something else to tell me. I said, no
I don't have anything else to tell you. I said, I told you
everything. He said, no, come on, you got something
else. I said, Detective,—I was telling him, look, I
don't. And then he—I mean he went on and on with
that, and on. And then I said to him, look,
[defendant]—and I said this. I said, look, [defendant]
is—is mean. And then he said, he's mean. And I said
yeah. And I said, I'm not going—I don't want to go in
there and say—and he said, come on. He said, it's
going to be all right, you know, I'm telling you it's
going to be cool. I said, you know what. And then I
didn't even agree actually. He said to the other
detectives, you know what, I think Alicia has
something else she want[s] to tell you guys. And
that's when I went in there and made my second
statement.
After her testimony on redirect, Boone's second recorded statement was
played for the jury. The prosecutor then elicited testimony from Boone that
she "was crying [during her second statement] because she was afraid of . . .
[defendant]." Boone testified that, apart from telling her lawyer,2 her cross-
2
Although she was not a party to the case or charged with any offenses,
Boone retained a lawyer to advise her and represent her interests. That
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examination on the previous day was the first time she had spoken about her
interactions with, and alleged mistreatment by, Detective Carlos Rodriguez.
Boone further testified that, by comparison, both Detective Valera and
Sergeant Jose Rodriguez were "very good to [her]." The prosecutor also
reaffirmed with Boone her third statement to Detective Valera and Sergeant
Jose Rodriguez on August 21, 2013, in which she again told the police "that
[defendant] said that he poked Chris."
On re-cross, defendant's counsel resumed his attack on the credibility of
Boone's second and third statements to the police. Perhaps most significantly,
defendant's counsel elicited dramatic testimony from Boone on a second re-
cross in which she proclaimed, "my family and I are very much aware of who
killed my cousin. We are much aware that it was not Dana Kearney."
Boone's Testimony About Her Payment of Defendant's Legal Fees and
Interactions with His Counsel
Apart from their focus on Boone's police interviews, counsel also
developed on the record certain facts relating to Boone's payment of
defendant's legal fees. During her redirect by the State, Boone testified she
had previously met defendant's trial counsel "[a]t his office" about "[t]hree
_________________
separate attorney was not defendant's counsel. In fact, as the PCR judge
found, defendant's attorney advised Boone to obtain her own counsel.
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times" where they discussed "[p]ayment." Boone testified that defendant's
counsel "wouldn't talk about the facts of the case" and she did not think anyone
had gone with her to those meetings. At the end of the redirect, the prosecutor
elicited the following testimony from Boone:
Q. Ms. Boone, you love [defendant], right?
A. Yes. I love all of them actually, but yes I do love
[defendant].
Q. Like you told us before, you hired Mr. Duffy to
represent him, right?
A. Yes.
Q. And you're paying for his services?
A. Yes.
Q. And [defendant] is the father of your child, right?
A. Yes.
Q. And since this incident, you've spoken to him
thousands of times. Is that fair to say?
A. Yes.
Q. You've seen him hundreds of occasions, right?
A. Yes.
Q. You don't want to see anything bad to happen to
him, right?
A No.
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Q. Certainly not because of anything that you say,
right?
A. Exactly.
On re-cross, defendant's counsel asked Boone about her visits to his
office, prompting the following exchange:
Q. Now, the Prosecutor brought out that you have
been to my office and that you had paid my legal fee.
A. Yes.
Q. When was the last time you were at my office?
A. I don't know. I mean, I don't—maybe 2014. . . .
Maybe 2014. Maybe possibly. A few years ago.
....
Q. So, after you paid my legal fee, we really had no
other direct communication?
A. No.
On a second re-cross, defendant's counsel asked Boone if she was
"coloring [her] testimony because [she] d[id]n't want anything bad to happen
to [defendant]," to which Boone responded "No."
Other Witnesses
Other trial witnesses, including Boone's daughters, goddaughter, and
mother's boyfriend, provided incriminating evidence regarding defendant's
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actions. We refer in this regard to our discussion of the strength of the State's
case in our 2020 opinion on direct appeal. Timmons, slip op. at 6-8, 23.
The Defense Summation
During his summation, defendant's counsel addressed at length Boone's
statements to police. Counsel delved into her credibility and potential motives
for changing her initial statement about defendant's alleged words to her on the
day of her cousin's death. He argued Detective Carlos Rodriguez had
pressured Boone, and that her recollection of defendant telling her that he had
"poked" Sharp had been "manufactured" and was not credible:
[I now turn to] [t]he handling of Alicia Boone
by the police. All right. She's brought to the police
station at about 3 a.m. She's placed in somewhat
solitary confinement. Nobody could really get to her
except the police. Once again, we return to the issue
of statement integrity. Not only was statement
integrity violated by allowing witnesses for at least an
hour at the crime scene itself to talk to her, [and] her
mother, it also was violated at police headquarters.
....
So let's examine Alicia's first statement to the
police. You saw her. She was calm. She disclosed
exactly what was stated to her concerning the issue of
what [defendant] told her about the nature of the
injury.
[Defendant] said he wanted to return to the
house. Why? Chris got cut, or words to that effect.
Chris got cut, or words to that effect. Compare that
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with her statement some seven hours later. "I poked
Chris," or words to that effect.
Now, [the] first statement is extremely different
from the second statement, in what regard? Well, the
first statement suggests facts that Alicia relied upon in
reaching that conclusion. What were those facts?
Glass was on the floor. In fact, Alicia indicated that
her first reaction was that Chris must have cut himself
on the glass on the floor. That was her initial reaction.
Seems relatively straightforward, there's glass on the
floor, he cut himself on that glass. Okay.
Then we go to the second one. What did that
demonstrate? Well, the prosecutor is going to argue to
you that the second statement, the second statement
really was about the fact that he's mean. That was the
point of the second statement, that he's mean? Or was
that justification for the second statement. He's mean.
What possible, what possible, I don't know,
what possible statement could that be, he's mean?
Gone was that Chris got cut, and it was replaced by I
poked him, or words to that effect. . . .
....
Okay. At the end of the day, you have two
dramatically different statements. You have the
statement "Chris got cut" or words to that effect or "I
think I poked Chris" or words to that effect. You must
decide which of those statements are more reliable.
It's on you. You must decide whether or not Alicia
Boone, having sat in Perth Amboy Police Department
for hours, changed up her statement for any other
reason than well, [defendant]'s mean.
Now if you believe that Chris got cut, or words
to that effect, then your duty is obvious; you must vote
to acquit. If you believe that Chris got cut or words to
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that effect, presents a reasonable alternative
explanation to the State's theory, your duty is obvious;
you must acquit. If you believe that "I poked Chris" is
a reasonable, well, then, what can I tell you. You've
already convicted.
....
Didn't you expect Sergeant [Jose] Rodriguez to
have stopped Alicia when she changed her statement
regarding cut versus poked and ask her why she
changed the statement? Didn't you expect Sergeant
[Jose] Rodriguez to question Alicia about why she
thought she was the only member of her family not to
go home for all those 15 hours? After all, she was
there voluntarily. Listen, I can go on for quite awhile,
but I think at the end, you will be forced to conclude
that the State manufactured a great deal in this case.
[(Emphasis added).]
2.
The PCR Proceedings and the Court's Ruling on the Conflicts Issue
After hearing oral argument, the PCR court issued an order and
accompanying written decision on February 1, 2023 denying all relief apart
from vacating court-imposed restitution.
The PCR court specifically rejected defendant's contention that his trial
attorney had a disqualifying conflict of interest. The PCR court found that
"based on th[e] limited interaction between Boone and trial counsel, it cannot
be said that there was an actual conflict of interest. The record reflects . . .
Boone interacted with trial counsel solely for the purpose of paying his legal
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fees. Without more, these limited interactions did not create an actual
conflict." Thus, "[b]ased on the totality of the circumstances, there was no per
se conflict or improprieties as to trial counsel's responsibilities towards the
petitioner."
In reaching this conclusion, the PCR court observed that "[w]hile it may
be atypical for a victim's cousin and the State's main witness to pay for the
petitioner's legal fees, those facts alone do not create an actual conflict of
interest." The PCR court relied on the following series of pivotal facts
reflecting the absence of a true conflict:
The interactions between trial counsel and
Boone were limited in nature; arising early in the
litigation when Boone made payments to trial counsel
for his services. Boone is not alleged to have
discussed the substance or case strategies with trial
counsel. Nor did her communications with trial
counsel extend beyond discussing payment. This case
went on for several years, without any indication of
further communication between Boone and trial
counsel. Additionally, trial counsel's decision to refer
Boone to another attorney, showcases his attempts to
prevent any appearance of impropriety, and to a
greater extent, any actual conflict of interest and
protect the petitioner.
Rejecting the alleged necessity of an evidentiary hearing, the PCR court
found that "[t]he record below is clear relative to the issues raised in this PCR
[and that] [w]ithout showing how the results would have been different, an
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evidentiary hearing is not warranted." 3 The PCR court further concluded that
"[f]or the reasons addressed above as to each of his claims, the [defendant] has
not made out a prima facie case to warrant an evidentiary hearing."
3.
In analyzing defendant's allegations that his trial attorney was
compromised by Boone's payment of his legal fees, we are guided by both case
law and principles of legal ethics.
General Conflict of Interest Principles Affecting Criminal Defendants
Generally, for counsel to be "effective" under our State Constitution,
counsel must provide the client "undivided loyalty, '"unimpaired" by
conflicting interests.'" State v. Cottle, 194 N.J. 449, 466-67 (2008) (quoting
State v. Norman, 151 N.J. 5, 23 (1997)). "There is no greater impairment of a
defendant's constitutional right to counsel than that which can occur when his
attorney is serving conflicting interests. The resulting representation may be
more harmful than the complete absence of a lawyer." State v. Bellucci, 81
N.J. 531, 538 (1980); accord State v. Sheika, 337 N.J. Super. 228, 244 (App.
Div. 2001).
3
The PCR court also made findings rejecting defendant's claim that his
counsel failed to provide him with adequate advice concerning his right to
testify, which we discuss, infra, in Part II(B).
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Even so, "a great likelihood of prejudice must be shown . . . to establish
constitutionally defective representation of counsel." Cottle, 194 N.J. at 467-
68. The conflict must be based in fact, rather than merely create the
appearance of impropriety. State v. Hudson, 443 N.J. Super. 276, 289 (App.
Div. 2015) ("Disqualification must be based on an actual conflict or potential
conflict of interest, as now defined by the RPCs.") (emphasis added).
This court's "evaluation of an actual or apparent conflict . . . does not
take place in a vacuum, but is, instead, highly fact specific." State v. Harvey,
176 N.J. 522, 529, (2003) (citations and internal quotation marks omitted). "In
that respect, the [c]ourt's attention is directed to something more than a
fanciful possibility." Ibid. "To warrant disqualification in this setting, the
asserted conflict must have some reasonable basis." Ibid.Similarly in this regard, under federal law, the mere "possibility" of a
conflict of interest "is insufficient to impugn a criminal conviction." Cuyler v.
Sullivan, 446 U.S. 335, 350 (1980). To avoid the prejudice inquiry under
prong two of Strickland, a defendant bringing an ineffective assistance of
counsel claim under the Sixth Amendment must prove an "actual" rather than a
mere "potential" conflict of interest and also that "the conflict adversely
affected counsel's performance." Mickens v. Taylor, 535 U.S. 162, 170
(2002).
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To be sure, New Jersey courts have departed from their federal
counterparts and "have exhibited a much lower tolerance for conflict -ridden
representation under the New Jersey Constitution than federal courts have
under the United States Constitution," and have accordingly found that "certain
attorney conflicts render the representation per se ineffective," warranting a
presumption of prejudice. Cottle, 194 N.J. at 470; see also State v. Drisco, 355
N.J. Super. 283, 292 (App. Div. 2002) ("New Jersey's constitutional standard
thus provides broader protection against conflicts than does the Federal
Constitution.").
Is There a Per Se Conflict?
Under New Jersey's "two-tiered approach in analyzing whether a conflict
of interest has deprived a defendant of his state constitutional right to the
effective assistance of counsel," courts must first determine whether the
alleged conflict is a "per se conflict." Cottle, 194 N.J. at 467. If a per se
conflict is found, "prejudice is presumed in the absence of a valid waiver, and
the reversal of a conviction is mandated." Ibid. In addition to that
presumption, there is also a strong presumption against waiver of a defendant's
"constitutional right to independent counsel." Bellucci, 81 N.J. at 544.
The "per se analysis is reserved for those cases in which counsel's
performance is so likely to prejudice the accused that it is tantamount to a
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complete denial of counsel." Savage, 120 N.J. at 616; see also State v. Miller,
216 N.J. 40, 70 (2013) ("[O]nly an extraordinary deprivation of the assistance
of counsel triggers a presumption of prejudice."). For a conflict of interest to
trigger a per se deprivation of the right to counsel there must be an "overriding
concern of divided loyalties." Cottle, 194 N.J. at 467 n.8. For these reasons,
our Supreme Court "has never presumed prejudice . . . in a situation . . . in
which the defendant was represented by competent counsel with no conflict of
interest." Miller, 216 N.J. at 60-61.
Courts have generally "limited the per se conflict on constitutional
grounds to cases in which 'a private attorney, or any lawyer associated with
that attorney, is involved in simultaneous dual representations of
codefendants.'" Cottle, 194 N.J. at 467 (quoting Norman, 151 N.J. at 24-25).
See, e.g., State ex rel. S.G., 175 N.J. 132, 134-35 (2003) (holding that a law
firm's simultaneous representation of a shooting suspect and the estate of the
shooting victim constituted an unwaivable conflict of interest); State v.
Murray, 162 N.J. 240, 250 (2000) (holding that the defendant made a prima
facie showing of a per se conflict warranting an evidentiary hearing, where the
attorneys for defendant and a codefendant shared "office space and a phone
number"); Bellucci, 81 N.J. at 544 ("Whenever the same counsel including
partners or office associates represents more than one [co]defendant, both the
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attorney and the trial court must explain the possible consequences of joint
representation to each defendant."). Here, that particular situation did not exist
because defendant's two codefendants had their own attorneys.
Given these principles, we must consider whether the payment of
defendant's legal fees by a person who is called as a witness for the
prosecution should be regarded inherently as creating a per se conflict. That
leads us to consider principles of legal ethics that address the payment of a
client's legal fees by a third party.
Payment by Third Parties
Under New Jersey's Rules of Professional Conduct (the "RPCs"),
"lawyer[s] shall not accept compensation for representing a client from one
other than the client unless: (1) the client gives informed consent; (2) there is
no interference with the lawyer's independence of professional judgment or
with the lawyer-client relationship; and (3) information relating to
representation of a client is protected." RPC 1.8(f).
Our Supreme Court has noted that "RPC 1.8(f) does not exist in a
vacuum: two other RPCs directly touch on the question presented." In re
State Grand Jury Investigation, 200 N.J. 481, 494 (2009). "First, RPC 1.7(a) .
. . recognizes '[a] concurrent conflict of interest . . . if: . . . there is a
significant risk that the representation of one or more clients will be materially
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limited by the lawyer's responsibilities to . . . a third person or by a personal
interest of the lawyer." Ibid. (quoting RPC 1.7(a)(2)). "Second, RPC 5.4(c)
provides that '[a] lawyer shall not permit a person who recommends, employs,
or pays the lawyer to render legal services for another to direct or regulate the
lawyer's professional judgment in rendering such legal services.'" Ibid.In In re State Grand Jury Investigation, the Court found that "[a]
synthesis of RPCs 1.7(a)(2), 1.8(f) and 5.4(c) yield[ed] a salutary, yet practical
principle: a lawyer may represent a client but accept payment, directly or
indirectly, from a third party provided each of the six conditions is satisfied."
200 N.J. at 495. Those six conditions are:
(1) The informed consent of the client is secured. In
this regard, "'[i]nformed consent' is defined as the
agreement by a person to a proposed course of
conduct after the lawyer has communicated adequate
information and explanation about the material risks
of and reasonably available alternatives to the
proposed course of conduct."
(2) The third-party payer is prohibited from, in any
way, directing, regulating or interfering with the
lawyer's professional judgment in representing his
client. . . .
(3) There cannot be any current attorney-client
relationship between the lawyer and the third-party
payer.
(4) The lawyer is prohibited from communicating with
the third-party payer concerning the substance of the
representation of his client. . . .
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(5) The third-party payer shall process and pay all
such invoices within the regular course of its business,
consistent with manner, speed and frequency it pays
its own counsel.
(6) Once a third-party payer commits to pay for the
representation of another, the third-party payer shall
not be relieved of its continuing obligations to pay
without leave of court brought on prior written notice
to the lawyer and the client. . . .
[Id. at 498-97 (internal citations omitted).]
The last five of these six conditions were clearly not violated here. As
the PCR court found, Boone did not direct or interfere with defendant's
counsel's representation of his client. Nor is there evidence she communicated
with his counsel concerning the substance of the case. As described by Boone
in her testimony, she had three meetings with counsel at the outset of his work
to discuss and arrange payment, and that was essentially the end of their
contact. No billing disputes or payment problems were identified. And
defendant's counsel had no attorney-client relationship with Boone. To the
contrary, as the PCR court found, defendant's counsel recommended Boone
secure her own attorney to represent her interests—which she did.
As to the first condition concerning defendant's informed consent, we
acknowledge the record contains no documentation of such express consent.
Defendant alleges in his petition that counsel "never advised him or sought a
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waiver" of a potential conflict. 4 Because defendant's counsel is now deceased,
the veracity of that claim cannot realistically be disproved.
But we decline to hinge a finding of a per se conflict and constitutional
violation upon such a "bald assertion." See Cummings, 321 N.J. Super. at 170.
We reach that conclusion for several reasons. First and foremost, the non -
compliance with an ethics requirement, while relevant, does not automatically
trigger per se civil or criminal consequences. Baxt v. Lilola, 155 N.J. 190,
197-98 (1998). Second, it is readily inferable from the record that defendant
must have been fully aware that his co-parent Boone had paid his legal fees, as
was adduced in open court by Boone's trial testimony. Third, counsel's
behavior, as we will discuss in more detail, demonstrated that he acted as a
zealous advocate of defendant's interests and exhibited loyalty to his client.
See RPC 1.7; Cottle, 194 N.J. at 463. Counsel advocated fiercely to negate
Boone's second and third police statements about defendant "poking" the
victim. He elicited extremely favorable testimony from her attesting that she
did not believe defendant killed Sharp. Any conceivable division of counsel's
4
Notably, defendant does not claim he was unaware that Boone was paying
his defense counsel's fees. And when the State brought out in Boone's trial
testimony that she had paid the fees, and defendant's counsel adduced further
information about the fee arrangement in cross-examination, the transcript
lacks any indication that defendant was surprised by this disclosure to the jury
or that he sought a mistrial.
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loyalties that could be the subject of a waiver was, in retrospect, purely
hypothetical.
We take judicial notice it is not unusual that a defendant's family and
friends will pay a private defense lawyer's fees to represent a loved one or
close acquaintance who is accused of a crime. Such private defense counsel
perform a vital institutional role in supplementing the services provided by the
Office of the Public Defender to clients who personally cannot afford counsel.
In a few instances, as here, that payer may also be a potential fact witness for
the State at the ensuing criminal trial. We discern no per se constitutional
prohibition on such fee arrangements if they are disclosed and with the assent
of the defendant and where the counsel's vigorous representation of the client
is not being materially limited by the payer.
That said, going forward, we recommend that private criminal defense
counsel document the client's informed consent with a written
acknowledgment or some other recorded means at the time the fee arrangement
is made. See RPC 1.8(f)(1). There may, of course, be instances in which the
payer's testimony for the State is anticipated to be so hostile to a defendant's
interests that the lawyer is, in fact, materially limited. This is not one of them.
We also reject any notion that defendant's counsel here was materially
limited by the fact that Boone paid his legal fees. The record contains not a
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shred of evidence that defendant's counsel was restrained by Boone in his
advocacy of his client. There are no indicia that counsel was timid in his
repeated cross-examinations of Boone. To the contrary, he vigorously
endeavored to show the critical portions of her second and third police
statements were not truthful.
Actual Conflict Analysis
Having concluded that there was no per se conflict here, case law
instructs us that "the potential or actual conflict of interest must be evaluated
and, if significant, a great likelihood of prejudice must be shown in that
particular case to establish constitutionally defective representation of
counsel." Norman, 151 N.J. at 25 (emphasis added); accord Cottle, 94 N.J. at
467-68 (quoting same). In this non-per se context, prejudice is not presumed.
Norman, 151 N.J. at 25.
A "great likelihood of prejudice" is itself a lower standard than prong
two of the Strickland test, which requires showing that counsel's errors
actually "prejudiced defendant." Fritz, 105 N.J. at 66. "If [such] a great
likelihood of prejudice is found, then we presume that actual prejudice has
resulted in constitutionally defective representation." Drisco, 355 N.J. Super.
at 292-93.
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For reasons we have already canvassed, there was no actual conflict of
interest here, and certainly no "great likelihood of prejudice." See Fritz, 105
N.J. at 66. We repeat that defendant's counsel advocated his interests
forcefully. Counsel stridently endeavored to undermine the incriminating
portions of Boone's police statements. His lengthy parries in Boone's cross -
examination prompted the State to respond with extensive questioning on
redirect. He spotlighted the problems in the State's case in a forceful
summation.
We realize counsel's strategic efforts failed in the end, given the
strengths of the State's other proofs, which we noted on direct appeal. But, as
case law instructs, trial counsel's strategic choices, even if they fail, are
generally inadequate to establish constitutional ineffectiveness. Marshall, 123
N.J. at 165; Sheika, 337 N.J. Super. at 243.
To sum it up, we affirm the PCR court's sound rejection of defendant's
conflict of interest argument. No evidentiary hearing on the issue was required
in these circumstances. State v. Preciose, 129 N.J. 451, 462-63 (1992).
B.
Defendant's other claim of his counsel's ineffectiveness, i.e., that he was
allegedly deprived of adequate advice about his right to testify at trial,
warrants little discussion.
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The PCR court found defendant's contention regarding his counsel's
failure to advise him about his right to testify unavailing because "the trial
record amply demonstrates that defendant knew he had the right to testify and
voluntarily waived that right." The PCR court found "[a]dditionally, the
record reflects that the [defendant] told the judge that he had adequate time to
discuss the potential of testifying with his lawyer [and that] [f]ollowing the
judge's questioning, the [defendant] waived his right to testify."
The PCR court concluded that "[n]otwithstanding any alleged failure by
trial counsel to discuss [defendant's] right to testify—which is belied by the
[defendant's] sworn testimony that he did discuss [testifying]—the trial judge's
voir dire was sufficient to notify the defendant of his rights, which he
ultimately waived."
The PCR court further addressed the possibility of trial strategy, noting
that "[t]he [trial] court's colloquy with [defendant] included advising the
[defendant] that he could be cross-examined about his prior record of
conviction." The PCR court found that "[i]t would fall within the realm of trial
strategy decisions to avoid testifying in light of [defendant's] record." Citing
the "well-established" law that counsel's "strategic choices made after
thorough investigation of law and facts relevant to plausible options are
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virtually unchallengeable," the PCR court found that "without more, a trial
strategy's failure does not render performance deficient."
We fully adopt these findings. Defendant's second argument is utterly
without merit, and no evidentiary hearing about it was necessary.
III.
In conclusion, we affirm the trial court's dismissal of defendant's PCR
petition for the abundant reasons we have stated. Defendant's now-deceased
trial counsel had no per se or actual conflict of interest arising from the fee
arrangement with Boone. Moreover, defendant was manifestly advised
sufficiently about his right to testify.
Affirmed.
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