Opinion
DOCKET NO. A-1164-13T1
06-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS J. KUTZNER, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-04-0310. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief). Deborah Bartolomey, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Bartolomey, of counsel and on the brief). PER CURIAM
Defendant Thomas J. Kutzner appeals from his conviction following a bench trial for fourth-degree aggravated assault on a police officer and third-degree resisting arrest. We affirm.
The testimony at the trial showed the following facts. In the late afternoon on November 16, 2011, Elizabeth Police Officer Frank MacNab was on patrol at the Elizabeth train station. Defendant was standing in a tunnel at the foot of stairs coming from a trackside platform, and he was impeding pedestrian traffic. MacNab asked defendant to "get out of the way" so that the rush-hour commuters would be able to pass through. Defendant ignored the officer's command.
MacNab approached defendant and again told him "to get moving." Defendant said he knew that the officer was "the FBI" and that he did not have to move. MacNab grabbed defendant's shoulder and tried to move him out of the way. Defendant hit Officer MacNab with an umbrella. MacNab told defendant he was under arrest and to place his hands behind his back. Defendant disobeyed and struggled with the officer. MacNab sprayed defendant with pepper spray, with little effect. During the struggle, defendant kicked Officer MacNab. Bystanders captured the incident on their cellphones, and someone uploaded the video to YouTube. The recording was entered in evidence and played at the trial.
After defendant was arrested, he was found to have on his person a four-page letter addressed to President Obama. In the letter, defendant said that, for the last fifteen years, about 2,500 FBI agents have been following him. He recounted numerous allegations of FBI interference in his life and requested that the President order the CIA to investigate the FBI. A receipt accompanying the letter indicated that defendant had faxed it to the White House on November 8, 2011. Defendant asked Officer MacNab to make sure President Obama received the letter.
At the trial, defendant testified that he had been at the train station to purchase a ticket to Newark. While in the tunnel, he had been watching pedestrians he suspected might be "walkers" for the FBI. According to defendant, a "walker" is someone who is not an FBI agent but is "paid by the FBI" to conduct "surveillance." Defendant testified that the officer approached him in the train station and told him it was "illegal to watch pedestrians" and then said that defendant was under arrest. Defendant started to walk away because he thought the officer was joking. Then, "three people . . . one officer and two walkers," grabbed defendant's arms and a struggle ensued until defendant was handcuffed. Defendant denied he was the man depicted in the video recording of the arrest.
The case was tried without a jury because defendant and his attorney requested a non-jury trial. After his arrest, defendant was denied admission into the Pretrial Intervention Program, see N.J.S.A. 2C:43-12 to -14 and R. 3:28, because he had failed to arrange for a psychological evaluation. In April 2012, a Union County Grand Jury indicted him on two counts: fourth-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1(b)(5), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a).
In July 2012, the court ordered a mental health examination to determine defendant's fitness to proceed in the case and whether he posed a danger to himself or others. A psychologist, Christine Joseph, Ph.D., interviewed defendant in September 2012. Dr. Joseph concluded that defendant suffered from "delusional disorder, persecutory type." She further advised that defendant did "not appear to be an immediate danger to self, others or property by reason of a mental illness," and recommended outpatient treatment. Regarding defendant's competency to stand trial, Dr. Joseph determined defendant had the "cognitive abilities needed to participate in an adequate presentation of his defense." He seemed to understand the nature of the court proceedings and the respective roles of the judge and jury.
At a pretrial conference on June 3, 2013, the judge explained to defendant that, even though he had been deemed competent to proceed, "that's not the same thing as saying there's no mental issues at all." After determining defendant wished to proceed to trial, the judge asked defendant, "[n]ow, your lawyer indicated that you might be willing to waive a jury and just be heard by a Judge. Is that what — to do?" Defendant answered "yes." The following discussion then occurred:
The Court: [Y]ou want to go to trial without a jury, right?
Defendant: Yes.
The Court: So, here's what we're going to do. You're going to come back next week on June the 10th, which is a week from today. And [a judge] will try you that week. To do that, you'll have to sign a Waiver of Trial by Jury Form which -- your lawyer will go over it with you.
Defendant: Okay.
The Court: And the Judge will have to talk to you on the record about your waiver. Okay? If he's satisfied that you can waive your rights, then he'll hear the case, probably next Tuesday morning. Okay?
Defendant: Okay.
The Court: Any questions?
Defendant: No.
The Court: All right. You want to go that road?
Defendant: Yes.
On June 12, 2013, defendant appeared with counsel before the trial judge. The judge explained defendant's options, including pleading guilty to a disorderly persons offense and being sentenced to a term of probation. The judge granted defendant additional time to confer with counsel and advised him "not [to] rush." After speaking with his attorney, defendant again chose to proceed to trial. The judge confirmed as follows that defendant would waive a jury trial:
The Court: [Y]ou wanted a bench trial, meaning not a trial in front of 14 people who would decide innocence or guilt but it would be a bench trial and the Court would decide whether or not you were not guilty or guilty of the charges you're facing, correct?
Defendant: Yes, Your Honor.
Two weeks later, on June 26, 2013, defendant appeared with counsel for his bench trial and produced a signed Jury Waiver Form. The waiver form stated:
The defendant, who is charged with Agg Assault/Resisting Arrest, in violation of N.J.S.A. 2C:12-1b(5) 2C:29-2a being advised of the nature of the charge against him and
of his right to indictment and trial by jury, hereby waives prosecution and trial by jury and requests to be tried before this Court.The trial proceeded, and the testimony was concluded that same day.
On June 28, 2013, the judge found defendant guilty of the charges after taking note of defendant's mental illness. On August 2, 2013, the judge sentenced defendant to one year of probation on each count, to run concurrently, with a condition that defendant undergo a mental health evaluation and that he be supervised by a mental health probation officer. Minimum mandatory money penalties and a $2.00 per month probation supervision fee were also imposed.
On appeal, defendant's brief lists the following argument points:
POINT I
EVEN IF OUR SUPREME COURT OVERRULES THIS COURT'S RECENT DECISION IN STATE V. BLANN, 429 N.J. Super. 220 (App. Div. 2013), MR. KUTZNER'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE TRIAL COURT IMPROPERLY GRANTED HIS REQUEST TO WAIVE HIS RIGHT TO A JURY TRIAL WITHOUT FIRST ANALYZING THAT REQUEST IN ACCORDANCE WITH STATE V. DUNNE, 124 N.J. 303 (1991).
POINT II
IF THIS COURT'S OPINION IN BLANN IS AFFIRMED, MR. KUTZNER'S ENTITLEMENT TO RELIEF MOVES FROM CLEAR TO UNDENIABLE.
POINT III
UNDER INDIANA V. EDWARDS, 554 U.S. 164, 177-178 (2008), TRIAL COURTS ARE REQUIRED TO ENGAGE IN A HEIGHTENED LEVEL OF INQUIRY AS TO THE WAIVER OF THE SIXTH AMENDMENT RIGHT TO A TRIAL BY JURY BY A MENTALLY ILL CRIMINAL DEFENDANT.
In State v. Blann, 429 N.J. Super. 220 (App. Div. 2013), rev'd on dissent, 217 N.J. 517 (2014), we had vacated a conviction resulting from a bench trial on the ground that the court gave inadequate advice to the defendant about his right to a jury trial. The Supreme Court reversed our decision. So, defendant's second argument point is moot. At oral argument before us in this case, counsel for defendant continued to press his arguments that defendant did not knowingly and voluntarily waive his constitutional right to be tried by a jury, especially because his mental illness affected his ability to make such a waiver.
A criminal defendant has the constitutional right to a trial by an impartial jury of his or her peers. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444, 1447, 20 L. Ed. 2d 491, 496 (1968); State v. Dunne, 124 N.J. 303, 311-12 (1991). But a jury trial is not constitutionally mandated, and a defendant may waive a jury and be tried by a judge instead. Dunne, supra, 124 N.J. at 309-12 (citing Singer v. United States, 380 U.S. 24, 25, 85 S. Ct. 783, 784, 13 L. Ed. 2d 630, 632 (1965), and Patton v. United States, 281 U.S. 276, 297-98, 50 S. Ct. 253, 257-58, 74 L. Ed. 854, 862-63 (1930)).
For State prosecutions in New Jersey, Rule 1:8-1(a) provides in relevant part: "Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial." To be valid, the waiver must be "knowing and intelligent" in light of the totality of the circumstances. State v. Jackson, 272 N.J. Super. 543, 550 (App. Div. 1994), certif. denied, 142 N.J. 450 (1995).
It is within the trial judge's discretion whether to grant or deny a waiver of a jury trial. Dunne, supra, 124 N.J. at 312, 318. The trial judge should:
(1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel;
(2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and
(3) determine, with an accompanying statement of reasons, whether, considering all relevant factors, including those listed below, it should grant or deny the
defendant's request in the circumstances of the case.Explaining the "relevant factors," the Court in Dunne stated:
[Id. at 317.]
At one end of the scale, tilting in favor of jury trial, will be the gravity of the crime. The higher the degree of the crime, the greater the weight given to that factor. Other factors that will tip the scale will be the position of the State, the anticipated duration and complexity of the State's presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere . . . the presence of particularly-technical matters that are interwoven with fact, and the anticipated need for numerous rulings on the admissibility or inadmissibility of evidence.
[Ibid.]
Rule 1:8-1(a) requires that the waiver of a jury trial be in writing. See State v. Mazza, 330 N.J. Super. 467, 472 (App. Div. 2000); State v. Wyman, 232 N.J. Super. 565, 568 (App. Div. 1989). In this case, the court obtained from defendant a signed "Waiver of Trial by Jury." The form was also signed by defense counsel and the prosecutor, thus indicating the agreement of all counsel that the case would be tried without a jury, and the judge accepted the form and signed it as well.
A defendant who later disputes the validity of his waiver has the burden of making "a plain showing that such waiver was not freely and intelligently made." Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S. Ct. 236, 242, 87 L. Ed. 268, 275-76 (1942); accord Jackson, supra, 272 N.J. Super. at 551. We stated recently that "a defendant who has persuaded the trial court to grant his motion to waive the right to a jury trial may challenge that decision only if he can show that his waiver was not voluntary and knowing." State v. Jackson, 4 04 N.J. Super. 483, 490 (App. Div.), certif. denied, 199 N.J. 129 (2009). Defendant has not made such a showing.
Defendant's waiver complied with the dictates of Rule 1:8-1(a). At the time of defendant's trial, a more detailed oral colloquy was not required. See Jackson, supra, 272 N.J. Super. at 550, 553 (where a written waiver was provided, a confirmatory oral colloquy was not mandated by R. 1:8-1(a)); cf. Wyman, supra, 232 N.J. Super. at 568 (in the absence of a written waiver, verbal confirmation in open court was required to validate the waiver of a jury trial).
In May 2014, after defendant's trial, the Supreme Court exercised its supervisory powers over the courts, New Jersey Constitution, art. VI, § 2, par. 3, and required that an official jury waiver form containing four specific items be prepared for use in connection with Rule 1:8-1(a). State v. Blann, 217 N.J. 517, 518 (2014), rev'g on dissent, 429 N.J. Super. 220 (App. Div. 2013). The Court's ruling in Blann with respect to the contents of the waiver form applies prospectively. It does not apply to defendant's trial and conviction. Indeed, in Blann, the Supreme Court found to be valid a waiver of a jury trial where no written waiver had been submitted and the issue was whether the trial court's oral colloquy with the defendant was sufficient to demonstrate a knowing and voluntary waiver of the right to trial by a jury. Ibid.; see Blann, supra, 429 N.J. Super. at 227-28, 236-37.
The revised jury waiver form must state that: "(1) a jury is composed of 12 members of the community, (2) a defendant may participate in the selection of jurors, (3) all 12 jurors must unanimously vote to convict in order for a conviction to be obtained, and (4) if a defendant waives a jury trial, a judge alone will decide his/her guilt or innocence." Ibid.
In this case, the waiver form was "commonly in use" around the State, see Blann, supra, 429 N.J. Super. at 243 n.2, and this court had previously acknowledged without criticism a similar waiver form, State v. Campbell, 414 N.J. Super. 292, 295 (App. Div. 2010). Certainly, there was no requirement before the Supreme Court's directive in Blann that the written form contain more detailed information than was commonly in use in our courts.
There is nothing in the record before us to suggest that defendant's waiver was not knowing and voluntary. The different judges who presided over pretrial proceedings spoke to defendant personally on three separate occasions, and he unequivocally requested a non-jury trial each time. During a two-week interval before his trial began, he had the opportunity to consult with his attorney and to complete and sign the written waiver form. His attorney also signed the form, indicating counsel's participation in the decision. While a more extensive colloquy with defendant would have made a more complete record, the record as it exists does not support defendant's belated contention that his request for a non-jury trial was not knowing and voluntary.
In addition, we reject defendant's argument that the United States Supreme Court's decision in Indiana v. Edwards, 554 U.S. 164, 167, 128 S. Ct. 2379, 2381, 171 L. Ed. 2d 345, 350 (2008), should be extended to waiver of a jury trial. In Edwards, the issue was "whether the Constitution permits a State to limit [a] defendant's self-representation right by insisting upon representation by counsel at trial — on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented." Id. at 174, 128 S. Ct. at 2385-86, 171 L. Ed. 2d at 355. The primary concern of the Edwards Court was a mentally ill defendant's inability to "play the significantly expanded role required for self-representation[.]" Id. at 176, 128 S. Ct. at 2387, 171 L. Ed. 2d at 356. The Court held that "the Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so." Id. at 177-78, 128 S. Ct. at 2387-88, 171 L. Ed. 2d at 357. Here, defendant's role was not expanded from that of a defendant assisting his attorney at the trial simply because the judge rather than a jury would be the factfinder.
As indicated by the pretrial psychological evaluation, defendant was competent to waive his right to a jury trial. Cf. Godinez v. Moran, 509 U.S. 389, 391, 113 S. Ct. 2680, 2682, 125 L. Ed. 2d 321, 327 (1993) (equating competency to stand trial with the level of competency required to plead guilty). There was no error in permitting defendant to waive a jury and to be tried before a judge.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION