State v. Land

• Decision Date: 25 March 1977
• Parties: STATE of New Jersey, Plaintiff-Respondent. v. Ted LAND and Joan Land, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 24

73 N.J. 24

372 A.2d 297

STATE of New Jersey, Plaintiff-Respondent. v. Ted LAND and Joan Land, Defendants-Appellants.

Supreme Court of New Jersey.

Argued Nov. 22, 1976.

Decided March 25, 1977.

Michael A. Querques, Orange, for appellant Ted Land.

Donald S. Goldman, East Orange, for appellant Joan Land (Goldman, Goldman & Caprio, East Orange, attorneys).

Michael A. Graham, Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

The opinion of the court was delivered by

SCHREIBER, J.

The central issue is the propriety of one attorney representing two defendants charged with the same crimes. Ted and Joan Land, husband and wife, were each indicted for possession of more than 25 grams of marihuana, possession of cocaine, and possession with intent to distribute those substances. Mr. Land was found guilty of all counts. Mrs. Land was found guilty of the possession charges, but not of the possession with intent to distribute. The Appellate Division affirmed. 136 N.J.Super. 354, 346 A.2d 411 (1975). We granted certification, 69 N.J. 390, 354 A.2d 318 (1976).

About 6:00 a.m. on July 26, 1972, five detectives, armed with a search warrant, went to the defendants' one family house at 832 E. Blancke Street, Linden, New Jersey. Mr. Land had already left for work, but Mrs. Land was home and permitted the detectives to enter and search the house. In the master bedroom, the detectives discovered a metal box and a gram scale in a closet, and some tinfoil packets of cocaine and a bag of marihuana in a dresser. They also found a pipe useable for marihuana, a strainer and two measuring spoons. When Mrs. Land said she had no key to the box, the officers broke it open and found over 500 grams of cocaine and 175 grams of dextrose.

One attorney represented both defendants throughout the trial. Aside from disputing the identity and definitional quality of the controlled dangerous substances, the defense attempted to establish Joan Land's innocence and inferentially her husband's guilt. She was the only defense witness and she sought to exculpate herself by claiming that she was unaware of the metal box in the closet. She maintained that the closet was exclusively used by her husband. A detective testified that Joan Land had stated that she did not possess the key to the metal box before it was broken open. She said that she knew nothing of the existence of the marihuana and tinfoil cocaine packets found in the dresser drawers which she asserted were used by her husband alone. She denied knowledge of any of the other narcotic related items and claimed the spoons and strainer were a part of her kitchen utensils. Since she stated that only her four infant children and husband resided in their house, her testimony obviously inculpated her husband.

Nothing in the record indicates that the defendants were advised by their attorney or the trial court of the potential conflict in engaging one attorney to defend them. It was not until the appeal had been filed that separate attorneys were retained. The Appellate Division did not reject the claim that the parties were entitled to and should have been represented by separate counsel, but held that no harm resulted because '(t)here is nothing in the record which would suggest that separate counsel would have achieved another result.' 136 N.J.Super. at 358, 346 A.2d at 413.

The Sixth Amendment to the Federal Constitution, which is applicable to the States by virtue of the Fourteenth Amendment, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), requires that in a criminal prosecution the 'accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.' The New Jersey Constitution contains almost identical language. Art. I, par. 10. ¹

Mere literal compliance, that is representation by an attorney, may not be enough to satisfy these constitutional mandates. The constitutional right to the 'assistance of counsel' contemplates that the attorney's position as an advocate for his client should not be compromised before, during or after trial. In representing more than one defendant, where divergent or conflicting positions may exist, an attorney's representation will probably not be as effective as it might have been if he had one client. ² The inherent difficulty in representing more than one defendant in a criminal proceeding and in steering a course which will promote the interests of each, but which will not be to the detriment of any one, exposes the infirmity of dual representation.

Furthermore, the principle of attorney-client confidentiality imposes the inviolability of a sacred trust upon the attorney. It has been said that the right to counsel 'would be meaningless if the defendant were not able to communicate freely and fully with the attorney.' M. Freedman, Lawyers' Ethics In An Adversary System 8 (1975). Representing two defendants involved in the same or related transactions could place the attorney in the impossible position of receiving and respecting confidential communications which may assist one defendant and harm another. Not only does this possibly inhibit the freedom of the client to cooperate completely, it also may curtail the ability of the attorney to be a vigorous partisan for each defendant.

Where the attorney cannot or may not be able to pursue an unrestrained course of action in favor of a defendant because he represents a codefendant, his effectiveness as counsel has been hampered. Under those circumstances, it cannot be said that the defendant's interests are being 'protected to the fullest extent consistent with . . . the standards of professional conduct.' ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function 145--146 (Approved Draft 1971). As one commentator has written:

A conflict of interests, then, need not necessarily consist of an obvious inconsistency of defenses among multiple defendants. It is quite sufficient to constitute a fatal conflict if counsel is precluded, because of diverging interests of codefendants, from representing either defendant with that degree of proficiency and forcefulness of defense which he would exhibit if either were his sole client. Where an attorney is impeded from doing his best, he is not only inadequate, but constitutionally in 'effective.' (Note, Conflict of Interests in Criminal Proceedings, 23 Ark.L.Rev. 250, 255 (1969) (footnotes omitted))

The spirit and intent of the federal and state constitutional requirement, effective assistance of counsel, would in that manner be compromised and violated.

Ample precedents support this proposition. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941), the Supreme Court reversed a conviction where an attorney, who was already representing one defendant charged with conspiracy to defraud, was designated by the court at the commencement of the trial to represent a codefendant. The Court wrote that it was:

clear that the 'Assistance of Counsel guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.' (315 U.S. at 70, 62 S.Ct. at 465, 86 L.Ed. at 699)

In Government of Virgin Islands v. Hernandez, 476 F.2d 791 (3d Cir. 1973), in a factual pattern strikingly similar to the instant case, a husband and wife who had one attorney were convicted of possession with intent to distribute heroin. After reversing the convictions because of an improper charge, the court questioned the appropriateness of having one attorney because 'counsel may understandably be inhibited in his efforts to demonstrate that one or the other defendant was the guilty party.' Id. at 794. It was suggested that on retrial the trial judge warn each defendant of the possible dangers of joint representation and afford each the opportunity of selecting separate counsel.

In State v. Green, 129 N.J.Super. 157, 322 A.2d 495 (App.Div.1974), two defendants charged with unlawful possession of the same controlled dangerous substance were represented by one attorney. The Appellate Division reversed the convictions and commented that 'a defendant should have nothing less than the undivided loyalty of his counsel.' Id. at 161, 322 A.2d at 497.

Underlying the principle that an attorney should represent only one client is the assumption that a conflict exists or may exist between codefendants. Although not apparent, the conflict may surface during the course of the trial. However, there may be circumstances where no conflict exists. Or, even if the possibility of divergence is present, the defendants tactically may desire one counsel. Since a single attorney eliminates reciprocal attacks and a joint defense may have a certain jury appeal, defendants may desire joint representation irrespective of the possible conflict. It is their right to have such representation, for parties may surrender their constitutional right to independent counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937).

Initially, it is the attorney's obligation when he first meets with his prospective clients to advise them of possible conflicts and of their constitutional rights. Some guidelines are prescribed in the Disciplinary Rules. DR 5--105 reads that:

(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5--105(C).

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5--105(C).

(C) In situations covered by DR 5--105(A) and (B) except as...