STATE OF NEW JERSEY VS. SERENITY A. DAVIS (2018-030, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2784-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SERENITY A. DAVIS,
Defendant-Appellant.
___________________________
Submitted June 17, 2020 – Decided July 21, 2020
Before Judges Koblitz and Gilson.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Municipal Appeal No.
2018-030.
Michael C. Meribe, PC, attorneys for appellant (Jeff
Edward Thakker, of counsel; Chuma Mike Meribe, on
the briefs).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Serenity A. Davis appeals from her January 22, 2019
disorderly persons conviction after a trial de novo on the record in the Superior
Court. She was convicted of simple assault, N.J.S.A. 2C:12-1(a)(1) arising
from an April 2017 apartment building dispute after a trial de novo on the
record. She received a conditional dismissal, N.J.S.A. 2C:43-13.1, was placed
on probation for one year and required to pay various financial penalties.
Defendant was represented at trial before the Essex County Special Remand
Court1 by a law student under the supervision of the Office of the Public
Defender (OPD). See R. 1:21-3(b). Because that law student also, at the
municipal court's direction, represented defendant's mother, who was
defendant's co-defendant at the joint trial, we now reverse. A lawyer, or law
student acting under the direction of a lawyer, may not represent co-defendants
at trial without a motion in the presence of both individuals. Such a clear
conflict represents a structural defect in the trial mandating reversal.
1
The Special Remand Court was established through cooperation of the Essex
County criminal division, the municipal division and the Essex County
municipal courts. It hears cases that involve criminal complaints that have
been downgraded to disorderly persons offenses, over which the county
prosecutor's office wishes to retain jurisdiction rather than return the cases to
the originating municipal court. The presiding judge is a municipal court
judge.
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Defendant and her mother were involved in a dispute with the residents
of the first-floor apartment while trying to gain access to the second-floor
apartment in a building with three apartments. We need not review the facts in
any detail. They were initially charged with indictable crimes that were
downgraded and sent back to the Special Remand Court where they were
represented by the same private lawyer. The lawyer then stated on the record
that he could not represent both defendants, choosing to continue representing
defendant's mother alone. The supervised law student was appointed to
represent defendant. When the mother's lawyer did not appear in court, the
municipal court judge had the law student represent defendant's mother as well
as defendant. Both were charged in the same incident with the same charges,
which involved assault, criminal mischief and defiant trespass. Defendant's
mother was acquitted of all charges while defendant was convicted of simple
assault only.
Defendant raises the following issues on appeal:
POINT I: THE LAW STUDENT'S JOINT
REPRESENTATION OF MOTHER AND
DAUGHTER CO-DEFENDANTS WAS PER SE
INEFFECTIVE ASSISTANCE. (Not raised below.)
POINT II: THE LAW DIVISIONS FINDINGS OF
SERENITY A. DAVIS'[] PURPOSE, AND THE
CONTENTIONS ABOUT SELF-DEFENSE, WERE
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ERRONEOUS AS A MATTER OF LAW; SHE WAS
ENTITLED TO AN ACQUITAL AND THIS COURT
SHOULD SO RULE.
POINT III: THE NEWARK MUNICIPAL COURT,
NOT THE ESSEX SPECIAL REMAND COURT,
WOULD HAVE HAD JURISDICTION OVER THE
DOWNGRADED CHARGES; THE LAW
DIVISION'S DECISION BASED ON A RECORD OF
AN ALLEGED TRIBUNAL WHICH LACKED
JURISDICTION, IS A NULLITY. (Not raised
below.)
We reverse based on the first point raised by defendant, which she raised
for the first time on appeal. We review this argument for plain error. Under
this standard, reversal of defendant's conviction is required if there was error
"clearly capable of producing an unjust result." R. 2:10-2. Rule 7:7-10, which
applies to the municipal court, states:
No attorney or law firm shall enter an
appearance for or represent more than one defendant
in a multi-defendant trial or enter a plea for any
defendant without first securing the court's permission
by motion made in the presence of the defendants who
seek joint representation. The motion shall be made
as early as practicable in the proceedings in order to
avoid delay of the trial. For good cause shown, the
court may allow the motion to be brought at any time.
Defendants are entitled to the effective assistance of counsel, which
requires "undivided loyalty and representation that is 'untrammeled and
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unimpaired' by conflicting interests." State v. Norman, 151 N.J. 5, 23 (1997)
(quoting State v. Bellucci, 81 N.J. 531, 538 (1980)).
Defendants did not privately retain the law student, nor agree on the
record to be jointly represented by him, nor were they informed on the record
of the possible pitfalls of sharing a lawyer. 2 Although they seemed to present
a cohesive defense, both denying all charges, we have no way of knowing
whether defendant's case would have been better presented by her own
individual lawyer, unimpeded by concerns for her co-defendant. One lawyer
should not be appointed by the court to represent co-defendants. Because
clients do not select who their appointed counsel is, they cannot truly be said
to have waived any potential conflict. The defendants here were not given a
choice. This enforced shared counsel is a structural error, requiring reversal
regardless of the fact that no objection was raised prior to appeal and no
specific harm was demonstrated. See State v. Camacho, 218 N.J. 533, 549
(2014) (discussing how deprivation of counsel is a structural error).
2
We note that advice from the mentor lawyer from the OPD, expressed in
coarse language, was captured on the record and reflected in the transcript we
reviewed. We suggest the OPD ensure that this inadvertent recording be
avoided in the future.
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Reversed and remanded for a new trial. We do not retain jurisdiction.
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