State v. Loyal

753 A.2d 1073, 164 N.J. 418, 2000 N.J. LEXIS 663

• Court: Supreme Court of New Jersey
• Decided: June 27, 2000
• Status: Published

Opinions

The opinion of the court was delivered by

STEIN, J.

This appeal requires us to determine whether it is an abuse of discretion for a trial court in a murder trial to declare a mistrial after discovering that defendant’s counsel previously represented a significant State witness. We hold that in the context of this prosecution for a drug-related homicide and other offenses defense counsel’s recent representation on drug charges of a material, recanting State’s witness constituted an appearance of impropriety that justified the trial court’s declaration of a mistrial. In the absence of prejudice to the defendant, or bad faith or inexcusable neglect by the prosecutor, we further hold that defendant’s retrial on charges of purposeful-or-knowing murder, aggravated assault and weapons offenses was permissible under the federal and state constitutions’ prohibitions against double jeopardy.

I

On February 7, 1996, Amedeo Delaeruz drove Wanda Colon and Carl Watson to Prince Street in Newark to purchase heroin. Watson had recently ingested methadone to reduce his craving for heroin, but his need continued. Because Watson was violently ill in the car and was apprehensive about the neighborhood, Colon volunteered to purchase heroin for him in an apartment building on Prince Street.

Colon saw Rahnzzan Johnson, Sharonda Posey and John Loyal in the hallway of that building. Colon did not know any of them prior to this encounter. Johnson asked Colon what she wanted and Colon told him that she wanted “a bag of dope.” Colon paid ten dollars for the bag of heroin. The transaction took place quickly and Colon left the building without looking in the bag.

Colon returned to the car and Delaeruz drove away. After Colon handed the bag to Watson, he opened it and discovered that it was empty. Watson convinced Colon and Delaeruz that they should return to the building. Delaeruz parked the car near the entrance to the building and Colon and Watson went inside. The same three individuals were present. Colon identified Johnson as the person who sold her the empty bag of heroin. After a brief argument between Loyal and Watson, Loyal gave Watson another bag that contained heroin. Watson then told Colon to leave the building.

As Colon exited the building, she heard Watson and Johnson talking to each other as they followed her towards the car. Loyal exited the building directly behind the two men. At that point, Johnson ordered Loyal to shoot Watson. Loyal took a gun out of his jacket and shot Watson several times, causing his death. Loyal then pointed the gun in Colon’s direction and warned her to leave before he “blew [her] head off.” Colon was shocked and immobilized until Johnson pushed her towards the street. Colon returned to the car to find Delaeruz terrified and unable to drive. Colon managed to drive the car away from the scene although she was in the passenger seat. When Delaeruz began to react, he drove to a nearby police station after Colon told him to do so.

Colon explained what had occurred to a lieutenant at the police station before going to a back room to calm down. After waiting about one-half hour, Detective Ronald Soto of the Newark Police Department interviewed Colon. Soto asked her what had happened and then asked her to look at two photo books to try to identify the shooter. Colon looked through the first book without success. On the first page of the second book, she misidentified a photo of Omar Smalls as the man who sold her the heroin. Soto, based on his street knowledge, knew that Smalls was connected to an individual nicknamed “Tank,” whose name was John Loyal. Soto had been actively investigating Loyal on. drug-related charges and had two warrants for his arrest. Soto decided to prepare a photographic array for Colon and took a picture of Loyal from the file on his desk relating to the drug investigation.

Colon completed her review of the second book without identifying the shooter. When Colon finished looking through the books, she stood up and walked over to Detective Soto’s desk. Colon saw the picture of Loyal on Soto’s desk and immediately identified Loyal as the shooter. When Soto asked her if she might be confused or still in shock, Colon insisted that Loyal was the shooter and said that she was sure.

Following jury selection, defendant’s trial for murder and other lesser charges commenced on April 16, 1997. Colon testified that she “can’t confuse [Loyal’s] face with nobody’s face,” and stated that she “would never forget that face” when she identified defendant as the shooter. On the following day, Colon finished her testimony and the State then called Sharonda Posey, the other woman present at the scene, as a witness. She testified differently from the description of the incident she had provided in her sworn statement to the police. Posey then testified that her police statement was false. The trial court stopped the proceedings and excused the jury to conduct a Gross hearing, see State v. Gross, 121 N.J. 1, 17, 577 A.2d 806 (1990), a procedure designed to determine whether a sworn statement given to the police is reliable and can be introduced substantively into evidence if the witness later recants the statement during his or her testimony.

During the three-day Gross hearing, both Johnson and Posey recanted the sworn statements that they gave to the police implicating Loyal as the shooter. Johnson’s description of the events leading up to the shooting was similar to the facts recounted in Colon’s testimony. Johnson, however, recognized the shooter as an “individual that comes in the neighborhood robbing, sticking up individuals, drug dealers.” Johnson testified that he decided to tell the police “what they wanted to hear” to avoid a charge of conspiracy to commit murder because Watson had been killed after purchasing drugs from Johnson. Johnson admitted that everything else in his sworn statement was true except for the identity of the shooter. Detective Manuel Garcia, the officer who took Johnson’s statement, refuted Johnson’s testimony and testified that he did not threaten Johnson or promise him anything in return for his sworn statement.

Posey testified that she was selling drugs with her boyfriend, Johnson, at the time of the shooting. Posey stated that Johnson and Watson were exiting the building together when someone came from the side of the building and shot Watson approximately ten times. Posey alleged that the police threatened her with life imprisonment if she did not identify Loyal as the shooter from a photo array. Posey testified that she implicated Loyal as the shooter because she thought she otherwise would go to jail and lose her children. Kirk Schwindel, an empldyee of the Essex County Prosecutor’s Office who was present when Posey made her statement, testified that Posey voluntarily identified Loyal as the shooter and that she was not threatened in any way.

Defense counsel argued that the Johnson and Posey statements were unreliable because they were induced by police officers who threatened potential criminal prosecutions. The State argued that Johnson and Posey testified voluntarily and that the specific testimony about the incident was substantially similar to Colon’s, except for the detailed description of the shooting. The court was satisfied that the statements were sufficiently reliable to be admitted into evidence.

After making that ruling, and before the jury returned to the courtroom, the court asked Posey whether she had ever been represented previously by defendant’s counsel, William Cucco, who was employed as an attorney for the Essex County Public Defender’s office. Posey replied that Cueco never represented her in any prior criminal matter. The prosecutor reminded Posey about her prior guilty plea on January 23,1995 for possession with intent to distribute a controlled dangerous substance within one thousand feet of school property, and her sentencing hearing on February 14, 1995 for that offense. She replied that she did not think that Cucco was her lawyer and recalled only that she was represented by the Public Defender’s office.

The prosecutor had investigated Posey’s prior convictions earlier that morning and learned that Cueco previously had represented Posey in his capacity as public defender. Cucco did not remember that representation but acknowledged that, because those events occurred over two years ago, he did not know for certain whether he had represented Posey. While investigating the Loyal case, Cucco interviewed Posey in prison and did not recognize her. Posey, likewise, did not recognize Cucco.

The trial court considered whether it should disqualify Cucco from representing Loyal. Cucco argued that the prosecutor had provided him with Posey’s Judgment of Conviction on the drug charges and that that document did not indicate that Cucco had represented Posey. Cucco also noted that Posey’s drug case was unrelated to the Loyal case, had been resolved years ago, and that neither party remembered the prior representation. The court ordered an independent attorney to advise Posey of her rights under RPC 1.7, the general rule governing conflicts of interest. Posey continued to insist that she had not been represented previously by Cucco, but agreed to waive any potential conflict of interest. After consulting with Cucco, Loyal also waived any potential conflict of interest that might arise during the cross-examination of Posey.

The prosecutor then requested a mistrial because Cucco had represented Posey in the past. The prosecutor noted that, if convicted, defendant would be able to argue that he received ineffective assistance of counsel because there was a conflict between Cuceo’s current representation of the defendant and his prior representation of the State’s witness. The court pointed out that both sides had waived any potential conflict, but the prosecutor did not believe that the Rules of Professional Conduct permitted the conflict to be waived. The prosecutor also contended that the jury needed to be informed of the prior representation, because it might be germane to the inconsistency between Posey’s testimony and her prior sworn statement. Desiring to research the issue independently, the court reserved decision on the motion for a mistrial. The jury then reentered the courtroom, and the prosecutor conducted his direct examination of Posey for the remainder of the morning.

That afternoon the prosecution withdrew its motion for a mistrial, noting that the record indicated that defendant made an intelligent and knowledgeable waiver of any potential conflict and that Cucco did not possess any confidential information about Posey. However, the court declared a mistrial sua sponte over defendant’s objection and despite the prosecutor’s election not to seek a mistrial. The court determined that State v. Needham, 298 N.J.Super. 100, 688 A.2d 1135 (Law Div.1996), mandated a mistrial, stating that that decision did not permit either party to waive a possible conflict. The court reasoned:

When an attorney’s former client is the State’s chief witness, it is beyond dispute that an appearance of impropriety is created requiring the attorney be disqualified. There is an appearance of impropriety.

Even though I don’t think Miss Posey could be classified as the — as the State’s chief witness, she clearly is a key witness in the fact that she indicates in a statement that the State is seeking to introduce that the defendant is the shooter. She says that. She is a key witness, though not the only key witness.

After discharging the jury, the court restated its reasons for declaring a mistrial:

First of all, as the Court stated in Needham, this Court does not take lightly its decision to disqualify Mr. Cucco, Mr. Loyal’s attorney. I do not and will not suggest or imply that Mr. Cucco did anything wrong or will do anything improper or unethical.

However, because of the very strong possibilities of the appearance of impropriety of a recanting eyewitness to a homicide being represented by defense counsel, I am satisfied that I must disqualify Mr. Cucco from continued representation of Mr. Loyal.

Cucco asked that the mistrial be declared with prejudice because Loyal’s right to a speedy trial had been compromised. The court informed Cucco of the necessity of filing a motion seeking that relief.

In May 1997, the trial court held a hearing on defendant’s motion for dismissal of the indictment based on a double jeopardy violation. The trial court again stated its reason for declaring the mistrial:

I did not find that Mr. Cucco was in [possession] of some specified, specific information that he learned from his representation of Miss Posey that would, one, lead him to a cross-examination based on information garnered while he was representing Miss Posey. I did not disqualify Mr. Cucco because I felt that because of that representation of Miss Posey, the cross-examination of Miss Posey while representing Mr. Loyal would be less than adequate. Less than vigorous. I specifically disqualified Mr. Cucco because of the appearance of impropriety.

Let’s remember what was happening: Miss Posey was on the stand recanting, indicating that this defendant was not the shooter. Her boyfriend had already recanted and clearly, there was a jury question established as to who this jury was going to believe; or, what part of the testimony they were gonna believe. Were they going to believe Miss Colon, who identified Mr. Loyal as the shooter? Were they going to believe Miss Posey? And if so, were they going to believe the sworn statement given? Were they going to believe the testimony that she was about to proffer as to why she gave the sworn statement? That is, that she was forced to.

... I don’t sit here in a vacuum. I’m well aware of the family of the deceased sitting in the courtroom. The justice system does not need a not guilty verdict when, in fact, there are grounds that — I mean, yes, I do not know what the jury was going to say. I do not know what the jury was going to believe. But what the State and — does not need, what the court system does not need is a not guilty verdict. Because, perhaps, the family of the victim believes that Mr. Cucco or Mr. Loyal got some special advantage because Mr. Cucco had represented both Mr. Loyal and the recanting witness.

The appearance of impropriety was such that in the interest of justice, once it was determined that the recanting witness was represented by Mr. Cucco, I was satisfied that I must declare a mistrial. So that when a jury makes a determination as to the guilt or innocence of Mr. Loyal, there is not the specter of Mr. Loyal getting an advantage if he’s found not guilty because defense attorney also represented an eyewitness.

The only issue that concerned the court at the hearing was whether Cucco was provided a complete copy of Posey’s Judgment of Conviction by the prosecutor. The court reserved decision on whether or not there was prosecutorial misconduct that would require defendant’s indictment to be dismissed because double jeopardy had attached.

The court subsequently denied defendant’s motion for dismissal of the indictment based on double jeopardy. The court again explained the reasons for declaring a mistrial:

I made a determination that the appearance of having a recanting witness now testifying in favor of defendant^-in a way favorable to the defendant, who is represented by a defense attorney, gave the appearance that if, in fact, there was a not guilty verdict, I can see something — somebody saying, boy, something smelly there; something is fishy with this thing. She’s now recanting. I felt that it was appropriate to declare the mistrial and have a new attorney appointed.

The court relied primarily on State v. Nappo, 185 N.J.Super. 600, 450 A.2d 604 (Law Div.1982), and State v. Laganella, 144 N.J.Super. 268, 865 A.2d 224 (App.Div.), appeal dismissed, 74 N.J. 256, 377 A.2d 652 (1976), in holding that the prosecutor’s actions or inactions did not rise to the level of bad faith or inexcusable neglect, and that the inadvertent failure to notify Cucco that he had previously represented a State’s witness did not warrant the extreme sanction of dismissal of the indictment.

Loyal’s second trial began in July 1997. Johnson testified that parts of his sworn statement were false and that Loyal did not shoot Watson. Johnson’s testimony mirrored the testimony he gave during the Gross hearing at Loyal’s initial trial. Detective Garcia testified about the investigation and the procedures used to acquire Johnson’s voluntary sworn statement. Colon’s testimony at the second trial described the incident and implicated Loyal as the shooter. Posey did not testify at defendant’s second trial.

The jury convicted defendant of murder, aggravated assault, and related weapons offenses. Prior to being sentenced, defendant renewed his motion for dismissal of the indictment and argued that double jeopardy barred the convictions because prosecutorial misconduct created an opportunity for a mistrial, or alternatively, because there was not a manifest necessity to declare a mistrial based on the potential conflict. The trial court denied the motion and sentenced defendant to life imprisonment with a thirty-year parole ineligibility period on the murder charge, and to concurrent sentences on the remaining charges. The Appellate Division affirmed defendant’s convictions and sentence in an unreported opinion. We granted certification. 162 N.J. 198, 743 A.2d 850 (1999).

II

A

Attorneys who practice law in New Jersey are required to comply with strict ethical rules concerning actual or possible conflicts of interests. Bruce A. Green, Conflicts of Interest in Legal Representation: Should the Appearance of Impropriety Rule Be Elmininated in New Jersey — Or Revived Everywhere Else?, 28 Seton Hall L.Rev. 315, 318-19 (1997). In the case of a former client, attorneys must comply with RPC 1.9:

(a) A lawyer who has represented a client in a matter shall not thereafter: (1) represent another client in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation with the former client; or (2) use information relating to the representation to the disadvantage of the former client except as RPC 1.6 would permit with respect to a client or when the information has become generally known.

(b) The provisions of RPC 1.7(c) are applicable as well to situations covered by this rule.

[Emphasis added.]

RPC 1.7(c) is part of the general rule that prohibits an attorney from representing a client when that representation would create a conflict of interest. RPC 1.7 forbids an attorney from representing a client in a situation that would create an appearance of impropriety, even if there were no actual conflict:

(c) This rule shall not alter the effect of ease law or ethics opinions to the effect that: (1) in certain cases or categories of cases involving conflicts or apparent conflicts, consent to continued representation is immaterial, and

(2) in certain cases or situations creating an appearance of impropriety rather than an actual conflict, multiple representation is not permissible, that is, in those situations in which an ordinal’ll knowledgeable citizen acquainted unth the facts would conclude that the multiple representation poses substantial iisk of disservice to either the public interest or the interest of one of the clients.

[Emphasis added.]

An appearance of impropriety must be “something more than a fanciful possibility” and “must have some reasonable basis.” In re Opinion No. 653, 132 N.J. 124, 132, 623 A.2d 241 (1993) (quoting Higgins v. Advisory Comm. on Prof 'l Ethics, 73 N.J. 123, 129, 373 A.2d 372 (1977)). The appearance of impropriety “alone may be sufficient to present an ethical problem even though no actual impropriety exists.” Higgins, supra, 73 N.J. at 129, 373 A.2d 372. The doctrine’s purpose is “to bolster the public confidence in the integrity of the legal profession.” State v. Catanoso, 222 N.J.Super. 641, 648, 537 A.2d 794 (Law Div.1987) (citing In re Cipriano, 68 N.J. 398, 403, 346 A.2d 393 (1975)). Although the doctrine’s imprecision has provoked criticism and requests for its rescission as applied to private civil litigation, see Report of the Professional Responsibility Rules Committee, 158 N.J.L.J. 472 (1999), the doctrine’s relevance in criminal matters and to issues of public-entity representation remains unchallenged. Thiá Court recently declined to implement a recommendation to eliminate the appearance of impropriety standard from the Rules of Professional Conduct. See Notice to the Bar, 159 N.J.L.J. 843 (2000).

In determining whether there is a reasonable basis for finding an appearance of impropriety, we must view the conduct as would an “ordinary knowledgeable citizen acquainted with the facts.” Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 216, 536 A.2d 243 (1988)(quoting RPC 1.7(c)(2)). That inquiry is highly fact-sensitive; it does not occur in a vacuum. In re Opinion No. 415, 81 N.J. 318, 325, 407 A.2d 1197 (1979). Where there exists an appearance of impropriety in an attorney’s representation of a client, that representation generally must cease. In re Petition for Review of Opinion No. 569, 103 N.J. 325, 334-35, 511 A.2d 119 (1986); Ross v. Canino, 93 N.J. 402, 409-10, 461 A.2d 585 (1983); Opinion No. 415, supra, 81 N.J. at 325, 407 A.2d 1197. Once an appearance of impropriety is found, “only in extraordinary cases should a client’s right to counsel of his or her choice outweigh the need to maintain the highest standards of the profession.” Dewey, supra, 109 N.J. at 220, 536 A.2d 243.

When an appearance of impropriety is found in a criminal matter, disqualification of an attorney routinely is required. In State v. Morelli, 152 N.J.Super. 67, 74, 377 A.2d 774 (App.Div. 1977), defendant’s counsel was disqualified because his firm represented an important prosecution witness and employed an attorney who had worked in the prosecutor’s office while the defendant was being investigated. The Appellate Division, citing caselaw as well as opinions of the Advisory Committee on Professional Ethics, concluded that a defense attorney must be disqualified when there is a “risk of the unacceptable appearance of possible impropriety.” Id. at 72, 377 A.2d 774 (citing State v. Lucarello, 135 N.J.Super. 347, 343 A.2d 465 (App.Div.), aff'd o.b., 69 N.J. 31, 350 (1975); State v. Jaquindo, 138 N.J.Super. 62, 350 A.2d 252 (App.Div.), aff'd sub nom., State v. Rizzo, 69 N.J. 28, 350 A.2d 225 (1975); In re Opinion 361, 100 N.J.L.J. 1 (1977); In re Opinion 340, 99 N.J.L.J. 610 (1976); In re Opinion 276, 96 N.J.L.J. 1461 (1973); In re Opinion 207, 94 N.J.L.J. 451 (1971)). Defendant’s waiver of his right to appeal a possible conviction based on a claim of ineffective assistance of counsel was found to be irrelevant. Morelli, supra, 152 N.J.Super. at 74, 377 A.2d 774.

In In re Garber, 95 N.J. 597, 598, 472 A.2d 566 (1984), this Court suspended an attorney from the practice of law for one year because he represented a murder witness who recanted a positive identification of the defendant, an individual whom the attorney had represented earlier in matters unrelated to the murder indictment. Id. at 605, 472 A.2d 566. The Court held that a “recanting witness is confronted by enormous legal pitfalls and thus is particularly in need of careful, objective and sound legal advice.” Ibid. The Court found that the attorney’s “intertwined connections” with both parties “presented an indelible appearance of impropriety that breaches ethical standards.” Id. at 610, 472 A.2d 566. The Court also was concerned with “the attendant public perception that, as a consequence of respondent’s compromised position, professional probity has been diluted and the administration of justice perverted.” Id. at 611, 472 A.2d 566. See also In re Cohn, 46 N.J. 202, 213, 216 A.2d 1 (1966) (noting that public knowledge of attorney’s dual representation of defendant and witness testifying against that defendant “would engender, at the least, a serious doubt about the integrity of the proceeding."). The Garber Court found that the witness’s consent was immaterial and ineffective because “[tjhere are certain conflicts that are so egregious that they cannot be cured by consent.” Id. at 613-14, 472 A.2d 566.

Likewise, in Catanoso, supra, the Law Division found that if the defendant’s counsel acted as a zealous advocate, he would have had to “breach the duty of loyalty that he owes to his former client,” the State’s main witness against the defendant. 222 , 537 A.2d 794. Therefore, although the defendant was willing to waive the right to cross-examine the State’s witness so that he could maintain his choice of counsel, the Law Division observed that the defendant’s counsel’s prior representation of the witness may have permitted him to acquire confidential information that could be used favorably by the defendant. Id. at 645, 537 A.2d 794. See also Reardon v. Marlayne, Inc., 83 N.J. 460, 473, 416 A.2d 852 (1980) (holding that presumption of access to and knowledge of confidential information between attorney and former client, notwithstanding attorney’s declarations to the contrary, may not be rebutted). The Law Division found that defendant’s counsel created a “high risk of impropriety” when the State’s witness “stands to be discredited, on cross-examination, by his former attorney.” Catanoso, supra, 222 N.J.Super. at 648, 537 A.2d 794. The court concluded that “[i]f there is an ‘adequate factual basis’ for an informed citizen to conclude that there would be a ‘high risk’ of impropriety if [the] defendant’s lawyer continued to represent his client, then the lawyer must be disqualified.” Ibid, (citing In re Opinion No. 569, supra, 103 N.J. at 331, 511 A.2d 119). See also Reardon, supra, 83 N.J. at 471, 416 A.2d 852 (stating that “[i]f there be any doubt as to the propriety of an attorney’s representation of a client, such doubt must be resolved in favor of disqualification.”).

In Needham, supra, a case relied on by the trial court in the matter before us, the issue was “whether a defense attorney must be disqualified upon motion by the State when that attorney represented one of the chief prosecution witnesses in an entirely unrelated matter.” 298 N.J.Super. at 102, 688 A.2d 1135. The defendant was charged with multiple offenses and Officer Warner was expected to testify against the defendant. Ibid. The defendant’s counsel had represented Warner in an indictable criminal matter seven years earlier and, more recently, in an internal affairs investigation that did not culminate in formal charges. Id. at 102-03, 688 A.2d 1135. The Law Division held that that prior representation created an appearance of impropriety and warranted the disqualification of the defendant’s counsel because “[w]hen an attorney’s former client is the State’s chief witness, it is beyond dispute that an appearance of impropriety is created.” Id. at 103, 688 A.2d 1135.

The Needham court found that “[i]f the defendant is acquitted as a result of the trial, an inference of wrongdoing is created by the perception that the acquittal was the result of the relationship or influence between [the defendant’s counsel] and Officer Warner.” Id. at 105, 688 A.2d 1135. The court also was concerned that Warner could provide strategic information to assist his former attorney, that the defendant’s counsel might not cross-examine his former client vigorously, or that the defendant’s attorney might use confidential information from the prior attorney-client relationship to cross-examine his former client. Id. at 105-06, 688 A.2d 1135. The court concluded that an adequate factual basis existed for an informed citizen to perceive an appearance of impropriety and that the defendant’s attempt to waive the appearance of impropriety did not cure the disqualification of his attorney. Id. at 107, 688 A.2d 1135. The court did not “intend to suggest or imply that [the defendant’s counsel] has done, or will do, anything improper or unethical” but “because the possibilities of impropriety are so strong and because there is a risk that [the] defendant will not be adequately represented,” the court disqualified the defendant’s attorney. Ibid.

That defendant was prepared to waive any potential conflict of interest resulting from his counsel’s prior representation of Posey does not absolve the trial court of the responsibility for assuring the fairness and reliability of the trial. In Wheat v. United States, 486 U.S. 153,108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), the defendant in a drug conspiracy prosecution requested that the attorney for two of his co-defendants represent him in place of his original counsel, informing the court of that request two days before trial. The prosecution objected because of the potential for conflict between counsel’s obligations to the co-defendants and his proposed responsibility as defendant’s trial counsel. Defendant and the co-defendants agreed to waive any conflict, and defendant emphasized his right to select his own counsel. The district court denied the requested substitution because of counsel’s conflict of interest. Defendant was tried and convicted, represented by his original counsel. The Ninth Circuit Court of Appeals affirmed the conviction. U.S. v. Wheat, 813 F.2d 1399 (1987). The United States Supreme Court affirmed, rejecting defendant’s contention that the waivers by the defendant and co-defendants adequately addressed the conflict issue:

Federal courts have an 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____ Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation.

Nor does a waiver by the defendant necessarily solve the problem, for we note, without passing judgment on, the apparent willingness of Courts of Appeals to entertain ineffective-assistance claims from defendants who have specifically waived the right to conflict-free counsel.

For these reasons we think the district court must be allowed substantial latitude in refusing waiver's of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.

[Id. at 160-63, 108 S.Ct. at 1698-99, 100 L.Ed.2d at 149-51.]

To the same effect is United States ex. rel. Stewart v. Kelly, 870 F.2d 854 (2d Cir.1989). There, the Court of Appeals reversed the district court’s grant of a habeas corpus petition and sustained the trial court’s refusal to permit defendant to be represented by his preferred counsel because of that counsel’s prior representation of a prosecution witness. Rejecting defendant’s contention that his waiver of counsel’s conflict should be controlling, the Court of Appeals observed:

There is a presumption in favor of a defendant’s choice of counsel, but this may be overcome “by a showing of a serious potential for conflict.” ... In balancing what can be competing interests of the Sixth Amendment, the trial court has “an independent duty to ensure that criminal defendants receive a trial that is fair.” Id, at 856 (quoting Wheat, supra, 486 U.S. at 161, 164, 108 S.Ct. at 1697, 1699, 100 L.Ed.2d at 150, 152).

B

Individuals are constitutionally protected against being tried twice for the same offense. The United States Constitution states: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Likewise, New Jersey’s Constitution provides: “No person shall, after acquittal, be tried for the same offense.” N.J. Const, art. I, ¶ 11. Additionally, N.J.S.A. 2C:1-9 states:

A prosecution of a defendant for a violation of the same provision of the statutes based upon the same facts as a former prosecution is barred by such former prosecution under the following circumstances:

d. The former prosecution was improperly terminated. Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the jury was impaneled and sworn____ Termination under any of the following circumstances is not improper:

(3) The trial court finds that the termination is required by a sufficient legal reason and a manifest or absolute or overriding necessity.

Termination of a trial after jeopardy attaches does not automatically bar subsequent re-prosecution. State v. Lynch, 79 N.J. 327, 342, 399 A.2d 629 (1979). Only improper termination of proceedings by a trial court bars a retrial. State v. Gallegan, 117 N.J. 345, 353, 567 A.2d 204 (1989); State v. Dunns, 266 N.J.Super. 349, 363, 629 A.2d 922 (App.Div.), certif. denied, 134 N.J. 567, 636 A.2d 524 (1993); State in the Interest of D.P., 232 N.J.Super. 8, 13, 556 A.2d 335 (App.Div.1989). Where the court finds a sufficient legal reason and manifest necessity to terminate a trial, the defendant’s right to have his initial trial completed is subordinated to the public’s interest in fair trials and reliable judgments. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949).

Whether “manifest necessity” or “the ends of .public justice” require declaration of a mistrial depends on the unique facts of the case and the sound discretion of the trial court. That test was first articulated in United States v. Perez, 22 U.S. (9 Wheat.) , 6 L.Ed. 165, 165 (1824), where the Supreme Court observed that

the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.

That standard has guided judges in making the discretionary decision whether particular trial conditions warrant a sua sponte mistrial declaration. Arizona v. Washington, 434 U.S. 497, 505-06, 98 S.Ct. 824, 830, 54 L.Ed.2d 717, 728 (1978); United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543, 554 (1971); Gori v. United States, 367 U.S. 364, 367-68, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901, 904-05 (1961); State v. Rechtschaffer, 70 N.J. 395, 405, 360 A.2d 362 (1976); State v. Farmer, 48 N.J. 145, 170, 224 A.2d 481 (1966), cert. denied, 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967).

Under the standard enunciated in Perez, supra, a trial court has wide discretion in granting a mistrial. See, e.g., Illinois v. Somerville, 410 U.S. 458, 462, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425, 429 (1973); Gori, supra, 367 U.S. at 368, 81 S.Ct. at 1526, 6 L.Ed.2d at 904; Farmer, supra, 48 N.J. at 171, 224 A.2d 481. Where a trial court declares a mistrial because of a substantial concern that the trial’s result may be tainted, “the trial judge’s determination is entitled to special respect.” Arizona v. Washington, supra, 434 U.S. at 510, 98 S.Ct. at 833, 54 L.Ed.2d at 731. “Where ... the trial court acts sua sponte, over the objections of both parties, propriety of the mistrial depends upon the sound exercise of the court’s discretion.” Rechtschaffer, supra, 70 N.J. at 406, 360 A.2d 362. In Rechtschaffer, we discussed substantial United States Supreme Court precedent that established pertinent standards to determine whether declaration of a mistrial was proper:

The common threads that run through the Supreme Court eases are centered about the propriety of the trial court’s granting sua sponte the mistrial and its cause. Did the trial court properly exercise its discretion so that a mistrial was justified? Did it have a viable alternative? If justified, what circumstances created the situation? Was it due to prosecutorial or defense misconduct? Will a second trial accord with the ends of public justice and with proper judicial administration? Will the defendant be prejudiced by a second trial, and if so, to what extent?

[Id. at 410-11, 360 A.2d 362. (citation omitted).]

In that ease, we concluded that neither manifest necessity nor the ends of public justice warranted the grant of the partial mistrial because the mistrial was not justified and the defendant was prejudiced by the mistrial declaration. Id. at 415, 360 A.2d 362.

In Arizona v. Washington, supra, the Supreme Court examined whether a mistrial was a manifest necessity where defendant’s counsel made an improper and prejudicial comment during his opening statement. 434 U.S. at 498, 98 S.Ct. at 826, 54 L.Ed.2d at 723. The federal District Court had concluded that the trial court did not adequately consider alternatives to a mistrial and did not make a finding of manifest necessity; the Court of Appeals for the Ninth Circuit affirmed. Id. at 501-02, 98 S.Ct. at 828, 54 L.Ed.2d at 725-26. The Supreme Court reversed the Ninth Circuit and concluded that the trial court exercised sound discretion when it declared a mistrial because it was concerned about the possibility of a double jeopardy violation, and that the trial court did not act precipitously in response to the prosecutor’s request for a mistrial. Id. at 514-15, 98 S.Ct. at 835, 54 L.Ed.2d at 733-34. Similarly in Illinois v. Somerville, supra, the Supreme Court held that if a mistrial vindicates a significant state policy and “aborts a proceeding that at best would have produced a verdict that could be upset by one of the parties,” a defendant’s interest may be outweighed by the “equally legitimate demand for public justice.” 410 U.S. at 471, 93 S.Ct. at 1074, 35 L.Ed.2d at 435.

New Jersey’s double jeopardy jurisprudence is coextensive with federal law. Lynch, supra, 79 N.J. at 340, 399 A.2d 629; Rechtschaffer, supra, 70 N.J. at 404, 360 A.2d 362; Farmer, supra, 48 N.J. at 168, 224 A.2d 481. In Farmer, supra, the defendant’s first trial for murder ended when the trial court declared a mistrial sua sponte over the objections of both the State and defendant. 48 N.J. at 167, 224 A.2d 481. The mistrial was declared on the first day of trial at which evidence was presented to the jury, because the prosecutor committed a good faith violation of a discovery order. Id. at 173, 224 A.2d 481. On appeal, we noted that

[a] wide range of discretion is recognized in the trial judge, who has his finger on the pulse of the proceedings. If in his judgment emergent conditions come into being which persuade him that the ends of justice for the defendant and the State cannot be achieved without aborting the trial, neither the Federal nor the State Constitution proscribes such an order. This is particularly true where the circumstances which to him compel the order do not bespeak bad faith or oppressive conduct by the prosecution or a desire or effort to improve the chances of conviction at a subsequent trial.

[Id. at 171, 224 A.2d 481.]

We balanced the defendant’s and the State’s interests in determining whether the defense of double jeopardy barred the retrial of defendant for murder:

If some unexpected, untoward and undesigned incident or circumstance arises which does not bespeak bad faith, inexcusable neglect or inadvertence or oppressive conduct on the part of the State, but which in the considered judgment of the trial court creates an urgent need to discontinue the trial in order to safeguard the defendant against real or apparent prejudice stemming therefrom, the Federal and State Constitutions do not stand in the way of declaration of a mistrial____ Moreover, if an incident or circumstance of that nature moves the court to order a mistrial not only to safeguard the right of the defendant to a full and fair trial, but also to protect the right of society to have its trial processes applied fully and fairly in the due administration of the criminal law, there is even less basis for a claim of trespass upon the privilege against double jeopardy. Clearly the societal right to have the accused tried and punished if found guilty stands side by side with the right of the accused to be prosecuted fairly and not oppressively.

[Id. at 174-75, 224 A.2d 481 (citations omitted).]

We noted that “there is no over-all formula, no hard and fast rule for determining when an order of mistrial will cause the jeopardy bar to spring into being, [and that] each case must depend upon its own facts and the urgency of its circumstances.” Id. at 177, 224 A.2d 481. After a careful review of the record, we concluded that the trial court’s

reluctant declaration of a mistrial constituted a reasonable exercise of judicial discretion, and that it represented the most sensible balancing of the interests of the defendant and the public. We have no doubt it came from a conscience acutely aware not only of the sacredness of the life at stake before him, but also of the sacredness of the life that was taken.

[Id. at 174, 224 A.2d 481.]

In this case, the trial court relied on Laganella when it denied defendant’s motion for dismissal of the indictment prior to defendant’s second trial. In Laganella, supra, the defendant’s motion for a mistrial was granted by the trial court. 144 N.J.Super. at 277, 365 A.2d 224. The Appellate Division found that “the dismissal of the indictment below was a mistaken exercise of discretion.” Id. at 283, 365 A.2d 224. In remanding the case for a new trial, the Appellate Division held “that important interests other than those of defendant alone are involved in the trial of criminal cases.” Id. at 287, 365 A.2d 224. The Appellate Division rejected following a “hard and fast rule” or “ritualistic formula” and noted that “mere empanelment of a jury and commencement of a case does not automatically provide a criminal defendant with a bar to further prosecution.” Id. at 286-87, 365 A.2d 224. Because the trial court and the State had acted in good faith, and the defendant would not be subjected to significant.annoyance, harassment or expense, the judgment of dismissal was reversed. Id. at 288-90, 365 A.2d 224. The Appellate Division concluded that

[t]o apply the bar of double jeopardy in the instant matter, absent compelling considerations of fairness to [the] defendant or for the purpose of protection against governmental action found by us not to be arbitrary, would disserve [the public interest], for there still has been no trial on the merits.

[Id at 290, 365 A.2d 224.]

III

Against this jurisprudential backdrop we must determine whether defense counsel’s prior representation of Sharonda Posey created an appearance of impropriety and whether the trial court properly declared a mistrial. In considering whether a lawyer’s responsibility to a client is compromised by his representation of a former client and constitutes an appearance of impropriety, we address the issue from the perspective of “a reasonable and informed citizen.” Opinion No. 653, supra, 132 N.J. at 132, 623 A.2d 241. We also consider whether the representation posed a “substantial risk of disservice either to the public interest or the interest of one of the clients.” Dewey, supra, 109 N.J. at 216, 536 A.2d 243 (quoting RPC 1.7(e)(2)).

The trial court correctly found that Cueeo’s representation of defendant created an unacceptable appearance of impropriety. The trial court reasoned that Cucco may have obtained confidential information during his prior representation of Posey that he could now use to impeach her credibility on cross-examination. We note that Posey’s prior conviction was drug-related and that defendant Loyal was charged with a murder that occurred during a drug transaction. Additionally, because of their prior relationship, the trial court may have been concerned that Cucco would cross-examine Posey less vigorously at the expense of defendant’s interests. Moreover, Posey’s decision to recant her statement implicating defendant enhanced the trial court’s concerns. The prosecutor had contended that the jury would have to be notified of Cuceo’s prior representation of Posey in order to assess the proper weight to be given to both Posey’s testimony and her statement to police. Both Posey’s interest and defendant’s interest may have been disserved by counsel’s prior relationship with Posey.

Additionally, the public interest would have been disserved by Cueco’s continued representation of defendant. The trial court noted that an independent observer might believe that “something is fishy” when a witness who was previously represented by defendant’s counsel recants a prior statement that identified defendant as the shooter. As we stated in Garber:

The public itself has the greatest stake in the propriety of the legal relationships that are created to properly administer criminal justice____ Clearly, the public interest in the administration of criminal justice in the circumstances of this case compelled the unbiased and unstinted representation of [the witness].

[Garber, supra, 95 N.J. at 614, 472 A.2d 566 (quotation omitted).]

In the context of this prosecution for a drug-related murder and other offenses, we are convinced that an appearance of impropriety existed where defendant’s counsel previously had represented on drug charges a material recanting State’s witness. Cucco’s and Posey’s failure to recall that prior representation or to recognize each other prior to trial is of no consequence.

Under those circumstances, we are persuaded that there was manifest necessity to declare a mistrial, considering the “ends of justice for the defendant and the State.” Farmer, supra, 48 N.J. at 171, 224 A.2d 481. In our view, the trial court exercised sound discretion in declaring a mistrial and that decision is entitled to deference. Ibid, (noting that “appellate courts must realize that under our system the conduct of a trial is committed to the trial judge, and that in appraising the exercise of his discretionary action a wise and tolerant restraint must be practiced if the separate levels of the judicial process are to be maintained.”). See also Arizona v. Washington, supra, 434 U.S. at 515-16, 98 S.Ct. at 835-36, 54 L.Ed.2d at 734 (holding that trial court’s responsible and deliberate actions supported mistrial declaration); State v. Modell, 260 N.J.Super. 227, 239, 615 A.2d 1264 (1992)(recognizing “that the trial judge must be given a wide range of discretion in determining whether a mistrial should be declared.”).

Our dissenting colleague disagrees, expressing the view that a trial court cannot “unilaterally discontinue a criminal trial to vindicate [the appearance of impropriety rule], without regard for the Double Jeopardy Clause.” Post at 458, 753 A.2d at 1096. That observation misperceives the interest vindicated by the trial court’s declaration of a mistrial. As the United States Supreme Court observed in Wheat, supra, 486 U.S. at 160, 108 S.Ct. at 1698, 100 L.Ed.2d at 149-50 (1988):

Federal courts have an 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____ Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation.

Other courts have recognized the necessity for declaring a mistrial to preclude a lawyer’s actual or potential conflict of interest from tainting the fairness of a criminal trial. In In re Hoang, 245 Kan. 560, 781 P.2d 731 (1989), the Kansas Supreme Court upheld the declaration of a mistrial by a trial court “confronted with facts indicating that defense counsel in a criminal ease may have a conflict of interest due to prior representation of a prosecution witness.” Id. at 732. Observing that the trial court “had a duty ‘to maintain the integrity of the administration of the justice system,’ ” id. at 733, the court rejected defendant’s double jeopardy challenge on the basis that the mistrial declaration satisfied the “manifest necessity” standard. Id. at 738.

Similarly, in Commonwealth v. Diehl, 532 Pa. 214, 615 A.2d 690 (1992), the Pennsylvania Supreme Court upheld a trial court’s mistrial declaration after the trial court learned that the district attorney had previously represented the defendant in a custody proceeding. The trial court was concerned after “the jury learned that the person who was seeking [defendant’s] conviction was the same person who ... had advised him with regard to [a] visitation order.” Id. at 692. Rejecting defendant’s contention that principles of double jeopardy precluded a retrial, the Pennsylvania Supreme Court observed that

the ends of public justice would have otherwise been defeated without the trial court’s sua sponte declaration of a mistrial. The trial court was insuring that Appellant would receive a trial by a fair and impartial jury which would return a verdict based solely on evidence adduced at trial. This is an interest which is to be protected not only for defendants, but also for the public, which has a compelling interest in justice for all.

[Ibid.]

In United States v. Simonetti 998 F.2d 39 (1st Cir.1993), the Court of Appeals rejected defendant’s doubie jeopardy challenge to his retrial on drug distribution charges and concluded that his counsel’s conflict of interest that precluded his effective representation of defendant without a waiver from another client potentially implicated in the drug offenses justified the trial court’s grant of a mistrial over defendant’s objection. Finding that “manifest necessity” required the grant of a mistrial, the Court of Appeals observed that the “manifest necessity” standard protects not only a defendant’s interests but also “ ‘the public’s interest in fair trials designed to end in just judgments.’ ” Id. at 41 (quoting Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982)) (quoting Wade v. Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837, 93 L.Ed. at 978 (1949)). See also People v. McNally, 107 Cal.App.dd 387, 165 Cal.Rptr. 715, 718-19 (1980) (rejecting defendant’s double jeopardy challenge and upholding trial court’s mistrial declaration over defendant’s objection because of counsel’s disabling conflict of interest).

Those precedents demonstrate that the primary basis for the trial court’s declaration of a mistrial in this matter was the vindication of the public interest in a fair trial. Contrary to our dissenting colleague’s view, post at 459-60, 753 A.2d at 1097, the mistrial was not mandated because counsel may have violated the appearance of impropriety standards. An ethical violation in a criminal trial ordinarily will not require a declaration of a mistrial. State v. Feaster, 156 N.J. 1, 85-87, 716 A.2d 395 (1998). As the cited cases demonstrate, however, in some circumstances a lawyer’s conflict of interest may jeopardize not only the defendant’s right to effective representation, but also “the institutional interest in the rendition of just verdicts in criminal cases,” Wheat, supra, 486 U.S. at 160, 108 S.Ct. at 1698, 100 L.Ed.2d at 149.

We are fully persuaded that the trial court correctly concluded that defense counsel’s prior representation of a material recanting witness posed a significant risk to the reliability of the outcome of defendant’s trial. Additionally, the trial court found no evidence of misconduct, bad faith or inexcusable neglect on the part of the State. Defendant does not appear to have been prejudiced by the delay in the criminal proceedings. Based on the interests of the parties and the'public in the proper administration of the criminal justice system, the trial court acted appropriately and within its wide range of discretion in declaring a mistrial over the objection of both the prosecution and defense counsel.

IV

The judgment of the Appellate Division is affirmed.