State v. Rivera

• Decision Date: 23 March 1989
• Citation: 232 N.J.Super. 165,556 A.2d 1227
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Rafael M. RIVERA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 165

232 N.J.Super. 165

556 A.2d 1227

STATE of New Jersey, Plaintiff-Respondent, v. Rafael M. RIVERA, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Feb. 6, 1989.

Decided March 23, 1989.

Alfred A. Slocum, Public Defender, for defendant-appellant (Rebecca R. Pressman, Designated Counsel, of counsel, and on the brief).

Rafael M. Rivera, filed a supplemental pro se brief.

Donald R. Belsole, Acting Atty. Gen. (Catherine A. Foddai, Deputy Atty. Gen., of counsel, and on the brief).

Before Judges J.H. COLEMAN, DEIGHAN and BAIME.

PER CURIAM.

The crucial issue raised in this appeal is whether two attorneys assigned to represent defendant in a capital murder trial were properly removed from the case. The trial judge concluded that the two attorneys had created an actual conflict of interest by participating in a scheme to have the chief prosecution witness marry defendant to deprive the State of her testimony pursuant to the marital privilege, Evid.R. 23(2). He ordered their removal from the case. We agree and affirm.

Essex County Indictment 2578-8-3 charged defendant Rafael M. Rivera with knowing or purposeful murder by his own conduct, contrary to N.J.S.A. 2C:11-3a(1) or (2) (Count One); felony murder, contrary to N.J.S.A. 2C:11-3a(3) (Count Two); robbery, contrary to N.J.S.A. 2C:15-1 (Count Three); aggravated sexual assault, contrary to N.J.S.A. 2C:14-2 (Count Four); and burglary, contrary to N.J.S.A. 2C:18-2 (Count Five). At the conclusion of a lengthy jury trial in which the State sought the death penalty, defendant was found guilty on Counts One, Three, Four and Five. He was acquitted of felony murder, Count Two. In the capital sentencing phase of the trial, the jury was unable to reach a unanimous verdict, thereby precluding the death penalty.

Following the denial of defendant's motion for a new trial, the trial judge granted the State's motion to impose an extended term on Count Four. Defendant was sentenced to life with 30 years of parole ineligibility for the murder. He was sentenced to a consecutive extended term of life with 25 years of parole ineligibility for the aggravated sexual assault. The court imposed concurrent custodial terms on the two remaining counts.

In a brief filed by counsel on behalf of defendant, and in a pro se supplemental brief, the following contentions have been raised:

I JUDGE DIOS ERRED BY REMOVING BROEGE AND GRAVES AS DEFENDANT'S TRIAL ATTORNEYS.

II JUDGE DIOS ERRED IN ADMITTING DEFENDANT'S ATTEMPT TO MARRY DIANE SANDERS AS EVIDENCE OF DEFENDANT'S CONSCIOUSNESS OF GUILT.

III JUDGE DIOS ABUSED HIS DISCRETION BY REFUSING TO GRANT DEFENDANT'S MOTION FOR A MISTRIAL.

IV JUDGE DIOS ERRED BY SENTENCING DEFENDANT TO A CONSECUTIVE TERM ON THE COUNT FOUR AGGRAVATED SEXUAL ASSAULT CONVICTION.

I

On July 16, 1983, Elizabeth Cornwall, a 78 year old widow who used a cane for ambulation, was murdered in the bedroom of her second floor apartment located at 143 Flemming Avenue, Newark. She lived on Social Security payments and benefits from the Veterans Administration. Defendant, his girlfriend Diane Sanders, and their three children resided in a second floor apartment located next to the victim. The victim regarded defendant and his family as part of her extended family. She would baby-sit for defendant's children at times. The three children called the victim "grandmother."

The victim visited Sanders in Sanders' apartment several times on July 16. The last time was about 4:15 p.m. Defendant came home at approximately 4:30 p.m., while the victim was visiting, and left 15 minutes later saying he was going out with friends. The victim went home at about 5:05 p.m. A short while later, Sanders and her son James placed their ears against a common wall which separated Sanders' bedroom from the victim's bedroom after hearing suspicious noises. They heard what sounded like a bed squeaking. James also heard a man's voice in the victim's bedroom. Defendant returned home shortly after the noise ended. When Sanders told defendant about the bed squeaking and the man's voice, defendant responded that he had been in the victim's apartment looking for money when the victim walked in and surprised him. Defendant told Sanders that he struck the victim several times. In an effort to check on the victim, Sanders entered the victim's apartment through an unlocked door. From the kitchen, she saw the victim lying on the bed with her head back.

After returning home in a frightened state, Sanders called Eddie Golda, the owner of a nearby bar who was also friendly with the victim. Golda and Sanders entered the victim's apartment and he checked the victim's pulse. Being unable to feel a pulse, he concluded the victim was dead. An ambulance was called; it arrived at about 7:20 p.m. The victim was taken first to University Hospital where she was pronounced dead. She was then taken to the morgue.

At or about the time the victim was taken to the morgue, defendant was visiting with another girlfriend, Jeanel Daniels, who lived on Hawkins Court in Newark. Defendant told her that he had murdered an old lady with his hands. He said he strangled her.

An autopsy was performed on July 17. It revealed the victim's face and neck were covered with bruises. There were pressure marks on the left side of her jaw. Marks on the right side of the face indicated linear abrasions surrounded by bruising. Hemorrhaging was found under the tongue, behind the eye and underneath the cheek. Bruises were located on her forearms and mid-back. Tiny abrasions were found on her lips. Gross examination of the rib cage revealed two fractured ribs. Hemorrhaging as well as black and blue marks were found which were caused by multiple impacts, probably inflicted by slapping, punching or a series of blows to the victim. The cause of death was asphyxiation due to pressure being applied to the neck and throat, commonly called strangulation.

In addition, the autopsy revealed that the victim had been sexually assaulted. Her vagina was torn in the back and was oozing blood. There was bruising of the mucous membrane and the area near the urethra. These injuries were caused by an object at least three inches in diameter such as the cane used by the victim for ambulation or defendant's hand.

Based on the autopsy report, a homicide investigation was undertaken by Detectives Jack Eutsey and Charles Conte of the Newark Homicide Squad. Detective Eutsey took a statement from Sanders on July 17 [556 A.2d 1230] and 18. Sanders also gave statements to Investigator Roger Spain of the Essex County Prosecutor's Office on July 17, 18 and 19, 1983. In her first statement, Sanders identified a male named Dennis as the only suspect and she did not indicate that defendant lived with her. But when detective Eutsey spoke to defendant a second time, he said "I killed her." Defendant was arrested and charged with the various crimes. He gave a written statement which was admitted as evidence during the trial.

II

The first three points raised by defendant are interconnected and will be discussed together because they all implicate evidence of defendant's attempt to marry Sanders. Defendant contends the trial judge erred when he ordered the removal of his two prior attorneys "because of a conflict of interest caused by their involvement with attempts to have defendant marry Sanders and because of the potential that they would be witnesses." Defendant also contends the trial judge should have excluded evidence that he attempted to marry Diane Sanders to prevent her from testifying against him. Defendant argues that if this evidence had been excluded, there would have been no basis for removal of the attorneys. Finally, defendant asserts that even if the attorneys were potential witnesses, his waiver of a conflict of interest should have been accepted by the trial judge thereby enabling the attorneys to continue in the case.

A

The facts pertinent to these contentions have a distasteful, if not unprofessional and criminal, overtone. The indictment was returned on August 25, 1983. Shortly thereafter, E. Carl Broege and William Graves were assigned to represent defendant charged with a capital offense. At some point prior to July 20, 1984, the prosecutor obtained information that defendant was attempting to marry Sanders to make her unavailable as a witness to the State pursuant to Evid.R. 23(2). Armed with that information, on July 20, 1984, the Essex County Prosecutor argued a motion before the assignment judge seeking to restrain defendant from marrying Diane Sanders, a key prosecution witness. While defendant was confined to the Essex County Jail pending the trial, he told Correction Officer Joseph Rilli that he planned to marry Sanders and that he needed to have a premarital application form signed by a doctor. An affidavit of Officer Rilli formed the basis for an application for a restraining order. On July 20, the assignment judge issued a Show Cause Order. He temporarily restrained defendant from marrying Sanders. The Show Cause Order was made returnable for August 17, 1984.

The return date on the Show Cause Order was adjourned until October 19, 1984. On that date counsel for defendant agreed to continue the restraints pending the trial. On the same date, the judge conducted an Evid.R. 8 hearing at the request of the State to determine whether Sanders would testify at the trial and what her testimony would be. This application was made because the Public Defender, at the request of Broege, had assigned an attorney to represent Sanders ostensibly because Sanders gave conflicting statements to police officers on July 17 and 18, 1983. Sanders' attorney served notice of representation of Sanders on the prosecutor on January 25, 1984. The prosecutor alleged that after Sanders obtained counsel, he was unable to confer with her. During the hearing, Sanders testified that in the summer of 1984, she made plans to marry defendan...