STATE OF NEW JERSEY VS. ANTHONY SHULER(16-04-0604, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1941-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY SHULER,
Defendant-Appellant.
_________________________________
Submitted September 12, 2017 – Decided October 18, 2017
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
16-04-0604.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mary J. Ciancimino, First
Assistant Deputy Public Defender, of counsel
and on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Karen Kazanchy,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant was indicted for homicide and attempted homicide
arising from a 2010 gang-related shooting. While the trial was
pending, defendant and others were charged in a superseding
indictment with witness tampering and conspiracy to commit murder
of two witnesses (collectively "witness tampering") related to the
shooting. The indictment also incorporated the homicide and
attempted homicide charges against defendant. When a co-defendant
filed a motion to sever the trial of the witness tampering charges
from the 2010 shooting charges, defendant joined the motion and
his counsel argued that severance was appropriate because counsel
was a potential witness for defendant in the witness tampering
charges. Counsel was mentioned in defendant's intercepted
telephone call with his co-defendant in which the State contended
they were arranging the murder of witnesses to prevent them from
testifying against defendant. In response, the State filed a
motion seeking to disqualify counsel under RPC 3.7.
On December 8, 2016, the trial judge granted the State's
motion to disqualify defense counsel because of her argument in
support of the trial severance. We subsequently granted
defendant's motion for leave to appeal.
Before us, defendant contends:
POINT I
THE TRIAL COURT WRONGLY APPLIED RULE OF
PROFESSIONAL CONDUCT RPC 3.7 BY GRANTING THE
STATE'S MOTION TO DISQUALIFY DEFENDANT'S
ATTORNEY, CAUSING SUBSTANTIAL HARDSHIP AND
IRREPARABLE HARM TO DEFENDANT.
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A. The Trial Court Wrongly Applied The
"Likely To Be a Necessary Witness" Test.
B. The Trial Court Wrongly Applied RPC
3.7 By Disqualifying Defense Counsel Before
Trial Had Commenced-Disregarding That The Rule
Provides Only That A Conflicted Lawyer "Shall
Not Act As Advocate At Trial."
C. The Trial Court Failed To Apply
Subsection (3) Of The Rule, That
"Disqualification Of The Lawyer Would Work
Substantial Hardship On" Defendant.
For the reasons that follow, we affirm.
On June 28, 2010, Darren Edwards and Shareef Allen were shot
in Jersey City based upon the State's theory of a Bloods gang
dispute. Edwards died, but Allen survived. T.R.,1 then thirteen
years old, witnessed the shooting and gave a video-recorded
statement to the police identifying defendant as the shooter.
Although Allen did not initially identify defendant as the shooter,
he eventually did so in 2012. The case was originally listed for
trial on September 8, 2015, but was adjourned at the State's
request due to a witness's unavailability.
The State's witness problems continued when it was not able
to locate Allen, and T.R. was afraid to testify because his life
was threatened and he was shot at numerous times. The State's
motion to admit T.R.'s statement under N.J.R.E. 804(b)(9),
1
We use initials to protect the privacy of the witnesses.
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Forfeiture by Wrongdoing, was denied because the motion judge
determined there was insufficient evidence linking the threats to
defendant - T.R. did not identify who threatened him, only
testifying that they were defendant's friends. We denied the
State's motion to stay the trial and granted leave to file an
interlocutory appeal.
When the trial had been stayed pending our decision on leave
to appeal, the State discovered what it believed was additional
evidence of witness tampering. While incarcerated at the county
jail, defendant's recorded telephone conversation with Robert
Dawson allegedly revealed their plan to keep T.R. and another
witness M.R. from testifying against him at the 2010 shooting
trial. Defendant also referred to a meeting with his trial
counsel. The conversation, together with other wiretapped
telephone calls and intercepted text messages, resulted in a
superseding indictment incorporating defendant's 2010 shooting
charges and new witness tampering charges that included defendant,
Dawson, and two other co-defendants.
Thereafter, defendants filed motions for speedy trial and
severance of the trial for the homicide and attempted homicide
charges from the witness tampering charges. In joining co-
defendant's severance motion, defendant's counsel Mary Ciancimino
argued in her brief that because she was mentioned in the telephone
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conversation between defendant and Dawson, she was a potential
witness for defendant in the witness tampering charges and
severance should be granted to "ensure . . . defendant receives a
fair trial and has all possible witnesses available to him at [the
witness tampering] trial." She further added that the situation
needed court intervention.
In response to Ciancimino's argument, the State filed a motion
under RPC 3.7 to disqualify her as defendant's counsel. In
opposing the application, Ciancimino retracted her argument that
she may be a potential witness for defendant, and contended instead
that she would only be a witness for the State should the State
"open the door on the issue." The judge found no merit to
Ciancimino's attempt to retract her earlier unequivocal assertion.
Based upon our interpretation of RPC 3.7 in State v. Dayton, 292
N.J. Super. 76 (App. Div. 1996), the judge found the State's motion
was timely, and that, although the State never asserted Ciancimino
would be a witness to establish defendant tampered with witnesses,
the State met its burden by showing that she is or could be a
necessary witness based upon her initial assertion. The judge
also rejected Ciancimino's contention that, even if she is a
necessary witness, the substantial hardship on defendant in
obtaining new counsel over six years after he was indicted does
not justify her disqualification by a mechanical application of
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RPC 3.7(a)(3). The judge reasoned that the prejudice defendant
might face in finding new counsel is far outweighed by his right
to a fair and effective counsel.
This court's "determination of whether counsel should be
disqualified is, as an issue of law, subject to de novo plenary .
. . review." City of Atl. City v. Trupos, 201 N.J. 447, 463
(2010). A defendant is constitutionally entitled to choose which
lawyer will represent him or her, so long as that counsel is not
court-appointed. State v. Kates, 426 N.J. Super. 32, 43 (App.
Div. 2012), aff'd, 216 N.J. 393 (2014). "In other words, the
Sixth Amendment 'commands . . . that the accused be defended by
the counsel he believes to be best.'" Ibid. (alteration in
original) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140,
146, 126 S. Ct. 2557, 2562, 165 L. Ed. 2d 409, 418 (2006)). The
United States Supreme Court has classified the erroneous
deprivation of that right as a "structural error," regardless of
the quality of representation of substitute counsel, requiring
reversal because it affects "the framework within which the trial
proceeds." Gonzalez-Lopez, supra, 548 U.S. at 150, 126 S. Ct. at
2564-65, 165 L. Ed. 2d at 420 (citations omitted); see Kates,
supra, 216 N.J. at 395-96.
The right to select counsel is not absolute, and can be
curtailed by certain restrictions, including the court's
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"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, supra, 548 U.S. at 152, 126 S. Ct. at 2566, 165 L. Ed. 2d
at 421-22 (citation omitted).
In a motion to disqualify counsel, the moving party bears the
burden of proving that disqualification is appropriate. Kaselaan
v. D'Angelo Assoc., Inc., 144 F.R.D. 235, 238 (D.N.J. 1992).
"[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) (citations omitted). 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 potential
conflicts of interest are highly speculative." United States v.
Lacerda, 929 F. Supp. 2d 349, 360 (D.N.J. 2013) (citation omitted).
RPC 3.7 states in pertinent part:
(a) A lawyer shall not act as advocate at a
trial in which the lawyer is likely to be a
necessary witness unless:
(1) the testimony relates to an uncontested
issue;
(2) the testimony relates to the nature and
value of legal services rendered in the case;
or
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(3) disqualification of the lawyer would work
substantial hardship on the client.
It is undisputed that the exceptions in RPC 3.7(a)(1) and (2)
do not apply here. Our analysis thus hinges upon whether
defendant's counsel is "likely to be a necessary witness" at trial,
and if so, whether the attorney's disqualification would inflict
a "substantial hardship" upon his 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).
In this case, the State carried the burden of demonstrating
a likelihood that Ciancimino would testify at trial. While the
State did not contend it would call Ciancimino to establish that
defendant and Dawson planned to keep T.R. and M.R. from testifying
against defendant regarding the 2010 shooting, we agree with the
trial judge that her initial assertion creates the likelihood that
she may be a witness at the witness tampering trial because she
was mentioned in defendant's telephone conversation in which the
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State's tampering charges are based. Counsel's attempt to
backpedal from her initial assertion that she is a potential
witness for defendant is unpersuasive.
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.
Vicchairelli, 827 F. Supp. 300, 306 (D.N.J. 1993). Considering
that defendant and Brooks would likely not testify, Ciancimino is
the only potential witness that can shed light on her conversation
with defendant that was part of the intercepted telephone
conversation. Yet, even if defendant and Dawson were to testify,
their testimony might not be given the same weight as Ciancimino,
thereby reinforcing the need for her testimony. See Dayton, supra,
292 N.J. Super. at 86.
Balancing the overwhelming interests at stake for defendant
in choosing his counsel and having all possible witnesses testify
in his defense warrants disqualification of Ciancimino so that she
would be available to testify in his defense. The consequence
that defendant will have to retain new counsel does not overcome
the need for a fair trial. The trial court should give defendant's
new counsel adequate time to understand the issues at hand and
prepare for trial.
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Lastly, under the circumstances here, there is no merit to
defendant's contention that should RPC 3.7 apply to disqualify
Ciancimino, it only disqualifies her from representing him at
trial, and not pretrial proceedings. While RPC 3.7 only mentions
"[a] lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a necessary witness unless[,]" we see no
logic to apply the rule so that a criminal defendant would have
separate counsel for pretrial motions and trial. To allow
Ciancimino to continue to handle defendant's pretrial matters
could prevent new defense counsel from implementing the trial
strategy that he or she envisions. Furthermore, waiting to
substitute counsel could further delay the trial, as new counsel
would have to review discovery and pretrial proceedings, identify
witnesses, and prepare for trial. Defendant's interests are best
served the sooner new counsel assumes representation.
Affirmed.
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