Opinion
DOCKET NO. A-3642-11T1
08-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LITTLE L. HARRIS, JR., Defendant-Appellant.
Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief). Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Plaisted, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-10-2907. Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief). Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Plaisted, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
A jury found defendant Little L. Harris, Jr. guilty of first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault with a handgun, N.J.S.A. 2C:12-1(b)(2); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). After appropriate mergers, the judge sentenced him to twenty years' imprisonment on the attempted murder count subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed a concurrent twenty-year NERA term for the first-degree armed robbery, a concurrent one-year term for the fourth-degree aggravated assault, and a concurrent five-year term for the unlawful possession of a handgun with a two-year period of parole disqualification pursuant to the Graves Act, N.J.S.A. 2C:43-6.
Defendant presents the following issues on appeal:
I. THE TRIAL COURT DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL AND UNDERMINED HIS RIGHT TO PROCEED PRO SE.
A. . . . .
B. The Trial Judge Deprived Mr. Harris of His Sixth Amendment Right to Select His Own Private Counsel.
C. The Trial Court Failed to Determine if Defendant Properly Waived His Sixth Amendment Right to Counsel.
D. The Trial Judge Violated Defendant's 6th Amendment Rights When He Imposed Ms. Barnett As Standby Counsel and Directed Her to Act as His Counsel.
E. The Trial Court Abused Its Discretion by Failing to Provide the Defendant Adequate Time to Prepare.
F. Standby Counsel Provided Ineffective Assistance.
II. THE TRIAL COURT'S IMPROPER DENIAL OF DEFENDANT'S WADE MOTIONS DEPRIVED HIM OF A FAIR TRIAL SINCE THE UNDULY SUGGE[S]TIVE PHOTO SHOW[-]UP AND PHOTO LINE RESULTED IN UNRELIABLE IDENTIFICATIONS.
A. The State Engaged in an Unduly Suggestive Show-up Procedure that Rendered Unreliable Mr. Kwakye's Identification of Defendant as the Culprit.
B. The State Conducted an Unduly Suggestive Photo Array Which Caused an Unreliable Identification of Defendant.
C. The Court Must Find that the Unduly Suggestive Show-up and Unduly Suggestive Photo Lineup Were Not Reliable.
D. The Trial Court Failed to Consider
the Suggestive Impact of [Mr.] Rusch's Statement to His Coworker [Mr.] Kwakye that the Perpetrator Was "Someone Who Used to Work Here."
III. THE TRIAL JUDGE TAINTED THE ENTIRE JURY POOL WHEN HE INFORMED ALL PROSPECTIVE JURORS "THAT MR. HARRIS, ON THE 26TH DAY OF MARCH, 2009, DID COMMIT AN ACT OF ROBBERY WHILE USING . . . WHAT APPEARED TO BE A HANDGUN AGAINST ONE [MR.] RUSCH AND/OR [MR.] KWAKYE." (Not raised below).
IV. THE TRIAL COURT DENIED DEFENDANT'S RIGHT OF ALLOCUTION AND PRESENCE AT HIS SENTENCING WHICH REQUIRE A REMAND. (Not raised below).
A. The Defendant Was Denied His Right of Allocution.
B. The Trial Court Violated Defendant's Right to Presence At His Sentencing Hearing.
V. THE TRIAL COURT'S SENTENCE FAILED TO WEIGH MITIGATING FACTORS AND IMPOSED AN EXCESSIVE SENTENCE.
Defendant raises the following additional issues in his pro se supplemental brief:
POINT IHaving considered defendant's arguments in light of the applicable law, we affirm both his conviction and his sentence
THE TRIAL COURT DENIED DEFENDANT TIME TO PREPARE FOR TRIAL.
POINT II
THE TRIAL COURT DENIED TO TAKE REASONABLE STEPS TO ACCOMMODATE DEFENDANT'S BLINDNESS
POINT III
THE TRIAL COURT ERRED WHEN HE DENIED A MOTION FOR RECUSAL DUE TO HIS CONFLICT OF INTEREST.
POINT IV
DEFENDANT'S RIGHTS WERE VIOLATED WHEN HE WAS NOT PROVIDED WITH DISCOVERY UNTIL THE EVE OF TRIAL.
POINT V
THE TRIAL COURT DENIED DEFENDANT'S RIGHT TO SUBPOENA EXPERT WITNESSES.
POINT VI
DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED BY A DENIAL OF DISCOVERY.
POINT VII
THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO SELECT HIS OWN JURY AS A PRO SE LITIGANT
POINT VIII
THE TRIAL COURT VIOLATED DEFENDANT'S 6TH AMENDMENT RIGHTS WHEN IT ATTEMPTED TO COERCE HIM AGAINST PRO SE REPRESENTATION.
POINT IX
THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUIONAL RIGHTS BY UNDERMINING HIS CRIMINAL DEFENSE.
On March 26, 2009, Messrs. Kwakye and Rusch were working the 11:00 p.m. to 7:00 a.m. shift at Security Park, a secure parking yard for overseas containers coming into the Port of Newark. Kwakye was a gate guard and Rusch a cashier. According to Kwakye, at about 3:00 a.m., a man whom he later identified as defendant, entered the office trailer, stood about an "arm's length" away and pointed a gun at him. Recognizing the man as someone he used to work with at Security Park, notwithstanding the cloth covering the lower part of his face, and believing the man was joking around, Kwakye asked "What's up?" Defendant did not respond. Realizing that defendant was not joking but was "very serious," Kwakye began screaming and ran outside. Defendant chased Kwakye with a gun around the trailer as he screamed for help.
Roused by the commotion, Rusch stepped outside to investigate. Kwakye yelled to him, "call the police, he's after me with a gun." As defendant ran toward Rusch, who had ducked inside, Kwayke ran to his car and drove out of the yard.
Defendant forced open the office door Rusch was trying to block with his body. Defendant, who had his shirt pulled up over his nose, said, "Give me the money." Rusch recognized defendant immediately, although he could not recall his name. He thought defendant was trying to disguise his voice, making it gruffer and harsher than his normal tone.
When defendant realized Rusch had recognized him, he let his shirt fall from his face and said, "You know I have to kill you now." Defendant pointed the gun at Rusch and tried to fire it, but it apparently jammed. Rusch tried to maneuver himself behind the door while asking defendant if he really meant to kill him over the $200 in the cash box or was he just kidding around. When defendant could not get the gun to work, he said, "yeah," and turned around and walked down the ramp out of the office.
Rusch closed the door and moved to a bank of security cameras to see where defendant was in relation to the door and the trailer but could not see him. Defendant returned to the door and called Rusch by name from the outside, asking for a ride home. When Rusch refused, defendant stepped back inside, muttering to himself, "I'm not going to jail tonight." As Rusch tried to get around defendant to escape through the door, defendant fired the gun. The first shot missed Rusch. Defendant put the gun to Rusch's neck and fired again. Rusch testified he instantly lost all feeling in his arms and legs and fell to the floor.
When Rusch hit the floor, he found himself unable to move, even to turn his head. His legs were apparently blocking the door and defendant's exit from the trailer. As Rusch struggled to breathe, defendant picked up Rusch's legs and pushed them up against the wall out of the doorway. He then kneeled down and grabbed Rusch's coat, picking him up and peering intently into his face before dropping him back to the floor. As Rusch lay immobile and bleeding, he heard defendant take his keys from his desk and empty the cash box before defendant stepped over him and left the trailer. Rusch heard his car door open, the engine turn over and his car drive away. Defendant made off with $19 8.
Shortly thereafter, Kwakye returned to the trailer frantic and discovered Rusch lying in a pool of blood. He called 9-1-1 and asked Rusch if he could make out the shooter. Kwakye testified that he had recognized defendant, although he could not recall his name, and "want[ed] to confirm that I saw the person that I [thought] I saw." Rusch said "yes, he used to work here." Both men described defendant to the police when they arrived as a tall, big man with big or "bulging" eyes. Rusch told them that the shooter used to work at Security Park and his employers would "know who I'm talking about" and have his name. Kwakye called his boss at the request of one of the officers. After describing defendant to her, she provided defendant's name and personnel file to the police.
Both Kwakye and Rusch identified defendant's picture in a photo array. Defendant was arrested at his home in Newark later that day. Rusch's car was recovered abandoned across town from defendant's home. Defendant's fingerprints were not found on the car, and the parties stipulated that no DNA evidence linked defendant to the crimes. The neurosurgeon that operated on Rusch testified that the bullet entered Rusch's neck under his left ear, fractured a number of vertebrae in his cervical spine and punctured an artery. Rusch is permanently disabled by nerve damage along the entire left side of his body, severely limiting the use of his left arm and leg.
Defendant contended at trial that he was misidentified as the shooter. Both he and members of his family testified that he is blind in one eye and cannot see clearly out of the other, and that his vision is so compromised that he had not driven a car in over ten years.
Defendant's central issue on appeal is that the trial court deprived him of his Sixth Amendment right to counsel, when it failed to determine that he properly waived his right to counsel, violated his rights by appointing his private counsel as standby counsel and abused its discretion by failing to provide him adequate time to prepare for trial. We reject each of these contentions.
We do not consider defendant's claim that standby counsel rendered ineffective assistance, finding the trial record inadequate and the claim better suited to post-conviction review. See State v. Preciose, 129 N.J. 451, 460-62 (1992).
To put this issue in context, some background is necessary. Shortly after his arrest defendant retained private counsel, who represented him for close to two years without incident. On March 21, 2011, the day before jury selection was scheduled to begin, defendant made a pro se motion to disqualify the judge. Defendant claimed the judge was biased against him, as evidenced by the pre-trial motions decided in the State's favor, and that the judge had an "unconfirmed marital and/or blood relationship" with the manager of Security Park based on the two having the same, relatively common, last name. Defendant claimed his counsel refused to file the motion on his behalf, necessitating his "pro se endeavor." Defendant's counsel confirmed that she refused to file the motion, finding no basis "allowing for us to have a motion" for recusal. After allowing defendant extensive argument in support of his motion, the court denied it in a comprehensive oral opinion.
Defendant then asked the judge whether the case would "proceed tomorrow without any type of investigation into — into what I said?" The judge explained there would be no investigation because the allegations "have no basis in fact." Defense counsel then advised the court that although she was ready for trial, her witness list served and "[a]ll subpoenas have been delivered and accepted," defendant has said "that he is not sure whether or not he wants to go pro se or not." Counsel explained to the court that defendant "indicated that [he] wanted . . . to go pro se and . . . wanted me to just sit here and go forward with the trial." Defendant then stated:
I don't know. I really don't know yet. I'm inexperienced. I have to speak . . . with my loved ones and see how we're gonna proceed as far as . . . this is concerned. I'm . . . not equipped to defend myself in the timeframe that I have to . . . go against a professional prosecutor. If I must, I will, but I would prefer not to.The judge responded that "[u]nless [he heard] otherwise," jury selection would begin the next morning with defense counsel representing defendant.
Although a jury was selected two days later, it was never sworn. For reasons not altogether clear, trial was adjourned and the parties apparently allowed more time to investigate defendant's vision problems.
When the parties again appeared for trial on August 2, defense counsel advised the court that although she was ready for trial and prepared to proceed, defendant had just announced in the holding cell "that there will be no trial, that he's not prepared to go forward because he doesn't have paperwork." Defendant then explained to the court that he "put in a motion a week ago to have my bail reduced and that's what I thought I was going to be coming here for, to hear a bail reduction. I didn't think I would be going to trial unprepared." Although defense counsel represented to the court that she had already twice provided defendant "with all the transcripts and the discovery," defendant claimed:
I don't have anything, any of the things that I need to go forward with this case. I don't have the bill of particulars, transcripts. I don't have the, uh, copy of the evidence ledger. I haven't even seen the film that supposedly has me doing a crime. Um, I don't have the ballistic report, and I don't have, uh, . . . oh, yeah who's coming to dinner list of witnesses who are going to be testifying against me.Defendant further explained that
And I would also like to see, uh, according to Rule 4:25-1(b)9, a list of exhibits that are going to be entered in as evidence against me.
I would like to see these things before I go forward into a trial. Now I can't stop you all from having a trial, but I can request these things before you proceed further. But you must know that if you — if you do proceed without providing me with these things, you are in violation of my rights. Manifest injustice. I need these things. I must have them. These are must haves.
When the court asked defendant whether he would be willing to proceed with defense counsel if he got all those things, defendant replied: "No, I need them before trial 'cause I need to have time to prepare 'cause I don't know if [defense counsel is] going to be representing me, like I said."
The court proceeded to ensure that defendant got each of the documents he was seeking and played the clip from the surveillance cameras for defendant in the courtroom, prompting defendant to remark: "So far it's like Christmas. I'm getting the things I'm asking for." The court proceeded to conduct a searching inquiry into whether defendant understood the charges against him, the penalties he faced if convicted, the elements of the offenses, the defenses he possessed, the disadvantage posed by his lack of legal training, the risks of self-incrimination in the dual roles of attorney and accused and that by representing himself he could not later assert an ineffective assistance claim. The court inquired into the extent of defendant's education (ninth grade), his experience with the criminal justice system (almost none), and confirmed he had never been hospitalized for any emotional or mental illnesses. The court explained the sequence of the trial, cautioned defendant that he would be obligated to follow the Court Rules and the Rules of Evidence and repeatedly and specifically advised defendant that the case was defensible, and it would be a mistake not to accept the assistance of counsel.
Although defendant unequivocally stated that "[his] decision [was] to go forward pro se," and asserted the decision to represent himself was made completely voluntarily, he also claimed that his counsel and the court had pressured him into the decision. When the court asked him to explain, defendant replied:
Um, well okay. You opened the worms. I don't trust this court. I don't trust the participants in this court. From what's been demonstrated so far towards me, the candor of this court has seemed very partial. And this part - and this partiality has also tainted my representation.Assuming that were true for purposes of their discussion, the court asked defendant to explain how "giving up your lawyer [is] going to help your situation?" To which defendant responded: "'Cause in the end, all one have is themselves. And that's all I have, just myself. So, I have to represent myself in order to get an honest defense."
Reviewing its extended colloquy with defendant, the court stated that it believed defendant understood the nature of the charges against him, the punishment he faced if convicted, the technical problems associated with self-representation, and the disadvantages he would suffer because he did not have legal training. The judge noted defendant had been before him on several occasions, that he found him competent, well schooled in his case and with no evidence of mental illness. Finding that defendant had made a knowing and voluntary waiver of his right to counsel, the court permitted him to represent himself.
The court also, over defendant's objection, appointed defense counsel to serve as standby counsel at trial. Defendant complained his counsel "had not assisted me so far," that "the problems [he was] having with his counsel" were based on the "influence" of "the court and the prosecution," and that continuing with her as back-up counsel "means that I'm still basically at the whims of the court." The court responded: "I understand what you're saying, but I'm telling you now that if we go to trial here today, she will be standby counsel, she'll be here to assist you." That led to the following colloquy:
DEFENDANT: And that's the question. Why are we going to trial today?
THE COURT: We're going to trial today because this case is an old case. It's ready for trial. [Defense counsel] was prepared. I'm ready to go to trial. If you want to represent yourself, you represent yourself under one -
DEFENDANT: I have no choice.
THE COURT: - condition, that you go to trial today.
DEFENDANT: Okay, let's go.
After the court determined that defendant would indeed be allowed to represent himself at trial, it relented on making him immediately go forward. Instead, the judge inquired as to how much time defendant believed he needed to prepare for trial. Defendant answered: "[T]wo months at least would be great, at least two months. Two months would give me time to prepare a proper defense." The court allowed the time requested and set the trial date for early October.
When the day for trial arrived, defendant requested yet another continuance to review a discovery package that the State had attempted to serve on him the previous day. The court denied the request finding that it was the same discovery defendant had already received twice before. Defendant proceeded to complain that the court was violating his rights by denying his request for a continuance and accused the judge of "rigging" the trial. When the court advised defendant that it had ruled and there would be no continuance, defendant responded:
Okay. When you bring the jury in here, I'm going to tell them I'm being forced into trial and I am not prepared. I am being bullied into trial. I am not prepared and these people here are rigging this trial and this is how they're doing it. The trial is rigged. You're forcing me into it, you know what I'm saying, without any fairness whatsoever and in violation of my
Constitutional rights, my legal rights, and also my civil and human[] rights, also.
The judge proceeded to put an oral opinion on the record ruling on defendant's newly-filed motion to dismiss his counsel. The court began by recounting defendant's refusal to leave the holding cell several days earlier for a pre-trial hearing on motions for adjournment and for a competency hearing unless his defense counsel was barred from the courtroom. The court explained that it acquiesced in defendant's demand to allow the hearing to go forward, and denied both motions. Finding no legal authority for the absolute right of a defendant to bar standby counsel's unsolicited participation, McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 949, 79 L. Ed. 2d 122, 131 (1984), the court, quoting State v. Reddish, 181 N.J. 553, 587 (2004), stated that "[t]here may be times . . . when the defendant [will] be required to cede control of his defense to protect the integrity of the State's interest in fair trials and . . . permit [courts] to ensure that their judgments meet the high level of reliability demanded by the Constitution."
The judge noted that "the right to proceed pro se does not provide either 'a license to abuse the dignity of the courtroom' or the right to refuse 'to comply with relevant rules of procedural and substantive law.'" State v. Drew, 383 N.J. Super. 185, 200 (App. Div.) (quoting Faretta v. California, 422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 2541 n.46, 45 L. Ed. 2d 562, 581 n.46 (1975)), certif. denied, 187 N.J. 81 (2006). Finding that defendant's conduct and threatened conduct jeopardized his pro se status, the court denied defendant's motion to dismiss and ruled that defense counsel
will continue as standby counsel and will only be available to assist if Defendant Harris specifically requests same. [Defense counsel] will remain in the courtroom, but sit outside the well of the courtroom. If the defendant persists in his demands to exile standby counsel, the court has no alternative but to deem [defendant's] unreasonable demands and actions as voluntarily absenting himself from the trial; a voluntary decision and a waiver of his right to be present. See Rule 3:16(b). If the court is placed in that untenable predicament, the sole alternative, in the interest of justice, would be to have [defense counsel] conduct [defendant's] defense.
Defendant complained that the court was forcing him to accept defense counsel as his attorney, despite the court's repeated instruction that she would sit in the back of the courtroom and do nothing unless he asked her to, and he refused to be present in the courtroom if she were present. Defendant chose to absent himself from trial, and the court ordered defense counsel to represent defendant in his absence.
Defense counsel conducted jury selection on defendant's behalf, opened to the jury and cross-examined the State's witnesses on the first day of trial. After jury selection and first day of trial, defendant resumed his role as counsel, conferring with standby counsel on numerous occasions. The two continued to work together for the remainder of the trial; standby counsel participated at defendant's request and delivered the closing argument to the jury.
Defendant argues that he was denied the right to counsel of his choice because after he notified the court that he did not want to proceed to trial and did not know if his privately-retained counsel would be representing him, the court told him that his only choice was to allow defense counsel to represent him or to proceed pro se. The court did not give him the option to secure another private attorney. We find no error.
The federal and State constitutions provide a defendant in a criminal case the right to legal counsel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. This right requires a defendant to receive "a fair opportunity to secure counsel of his own choice," so long as the defendant secures counsel on his or her own and does not require counsel to be appointed by the court. State v. Miller, 216 N.J. 40, 62 (2013) (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58, 77 L. Ed. 158, 162 (1932) and citing United States v. Gonzalez-Lopez, 548 U.S. 140, 151, 126 S. Ct. 2557, 2565, 165 L. Ed. 2d 409, 421 (2006)), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). The right to choose one's attorney is violated when the defendant is "erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received." Ibid. (quoting Gonzalez-Lopez, supra, 548 U.S. at 148, 126 S. Ct. at 2563, 165 L. Ed. 2d at 419).
Having reviewed this voluminous record, we see nothing to indicate defendant ever made a specific request of the court to obtain new counsel. Thus it is difficult to understand defendant's argument that the court deprived him of his counsel of choice. Defendant cites no case, and we are aware of none, that would obligate a trial court to instruct a defendant that he or she has a Sixth Amendment right to counsel of choice when the defendant voices concerns with his counsel's representation or expresses a desire to discharge counsel and proceed pro se. We decline to impose such a requirement on the trial court.
Defendant was undoubtedly aware of his right to secure counsel of his own choice because he did so in this case. Moreover, the right to counsel of choice is not absolute. State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985). It is subject to the court's need "to control its own calendar and the public's interest in the orderly administration of justice." Ibid.; accord State v. Kates, 216 N.J. 393, 396 (2014). The court's concern over the age of the case and defendant's ongoing requests to put off the trial obviously and appropriately shaped its response to defendant's expressed desire to discharge his counsel and proceed pro se. Because defendant never voiced any consideration of replacing his counsel with anyone other than himself, we find no error in the court addressing only the two options defendant presented, proceeding with his counsel or becoming self-represented. Defendant's argument that such a response deprived him of his constitutional right to choose his own counsel is without merit.
Our review of the record likewise compels rejection of defendant's argument that the court erred in finding that he knowingly and voluntarily waived his right to counsel. Although it is well settled that "[t]he corollary to the right of a criminal defendant to be represented by an attorney is the defendant's right to represent himself," State v. King, 210 N.J. 2, 16 (2012) (quoting Faretta, supra, 422 U.S. at 814, 95 S. Ct. at 2530, 45 L. Ed. 2d at 570), a court may only accept a defendant's request to proceed pro se if it concludes that the defendant's choice to waive the right to counsel is knowingly and intelligently made. Id. at 18. A trial court must
inform a defendant of the charges to be tried, the statutory defenses to those charges, and the potential sentencing exposure that accompanies those charges. [State v. Crisafi, 128 N.J. 499, 511 (1992)]. A court should also inform a defendant of the risks he faces and problems he may encounter. Id. at 511-12. . . . [T]he court should explain that a defendant representing himself remains as obligated to follow the applicable rules of procedure and evidence as would a licensed attorney. Id. at 512. Further, a court should stress the difficulties inherent in proceeding without an attorney and "specifically advise the defendants that it would be unwise not to accept the assistance of counsel." Ibid.The court should instruct the defendant on
[Ibid.]
whether [the] defendant will experience difficulty in separating his roles as defendant and counsel; whether [he] understands that he not only has the right not to testify, but also the right not to incriminate himself in any manner; whether he understands that he could make comments as counsel from which the jury might infer that he had knowledge of incriminating evidence (and the difficulty in avoiding such comments); and whether he fully understands that if he crosses the line separating counsel from witness, he may forfeit his right to remain silent and subject himself to cross-examination by the State.The court must also advise the defendant that in the event he is convicted he "will not be able to seek post-conviction relief alleging he had been deprived of the effective assistance of counsel." King, supra, 210 N.J. at 19.
[Reddish, supra, 181 N.J. at 594.]
Our review of the record convinces us that the trial court engaged in precisely the sort of searching inquiry required. Defendant expressed his understanding, in his own words, of the crimes he was charged with, what the State had to prove and the defense he would assert at trial. The court took pains to explain the disadvantages defendant would face representing himself and answered defendant's questions about his right to pursue an ineffective assistance claim post-conviction. Defendant was aware of the penalties he faced if convicted and that he risked exposure to consecutive sentences. Although defendant lacked a high school education, the record revealed an intelligent person pursuing a deliberate course. We cannot find on this record that the trial court abused its discretion in finding a knowing and voluntary waiver. See State v. DuBois, 189 N.J. 454, 475 (2007).
Defendant's argument that the court erred in appointing defense counsel as standby counsel is without merit. When a defendant waives the right to counsel, the court "should" appoint standby counsel to assist the defendant. State v. Sinclair, 49 N.J. 525, 552 (1967); accord State v. Slattery, 239 N.J. Super. 534, 549 (1990). The purpose of appointing standby counsel is to provide "a 'safety net' to insure that the litigant receives a fair hearing and to allow the trial to proceed without the undue delays likely to arise when a layperson represents his own case." State v. Ortisi, 308 N.J. Super. 573, 591 (App. Div.), certif. denied, 156 N.J. 383 (1998). Whether to appoint standby counsel is within the trial court's discretion. Sinclair, supra, 49 N.J. at 552.
When standby counsel is appointed, the pro se defendant must, nonetheless, "be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial." McKaskle, supra, 465 U.S. at 174, 104 S. Ct. at 949, 79 L. Ed. 2d at 131. A pro se defendant has no right to bar participation by standby counsel. Id. at 176, 104 S. Ct. at 950, 79 L. Ed. 2d at 132. Indeed, standby counsel may "participate in the trial proceedings, even without the express consent of the defendant, as long as that participation does not 'seriously undermin[e]' the 'appearance before the jury' that the defendant is representing himself." DuBois, supra, 189 N.J. at 466-67 (quoting Martinez v. Court of Appeal of Cal., 528 U.S. 152, 162, 120 S. Ct. 684, 691, 145 L. Ed. 2d 597, 607 (2000)).
Here, defendant's limited education, obvious vision problems and lack of familiarity with the criminal justice system militated in favor of appointment of standby counsel to ensure a fair trial. Although defendant objected to defense counsel being appointed, she was an experienced criminal defense attorney who had twice prepared the case for trial. She was certainly better positioned to ensure defendant received a fair trial than a lawyer with no familiarity with the case would have been, and to do so without delay. In sum, we find no error in the appointment of defense counsel to serve as standby counsel for defendant.
Defendant's argument that the court violated his Sixth Amendment right to represent himself when it ordered his counsel to defend him in his absence requires only brief comment. "The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law." Faretta, supra, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46, 45 L. Ed. 2d at 581 n.46. Thus, a "trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct." Ibid. Here, the record is replete with examples of defendant's unreasonable demands regarding the presence of standby counsel in the courtroom and his explicit threat to make statements before the jury clearly calculated to force a mistrial. In light of defendant's conduct, the trial judge did not abuse his discretion in ordering defense counsel to assume defendant's defense in his absence.
Nor do we find the court erred in denying defendant's requests for an adjournment of the trial. Adjournment requests are committed to the trial court's sound discretion. Miller, supra, 216 N.J. at 47. We will not reverse absent a showing of prejudice. Ibid. The discovery the State attempted to serve on defendant the day before trial was the same discovery that defendant had already received on two prior occasions, which defendant had already been allowed an adjournment of two months' time to review. Defendant has not identified any documents admitted into evidence not part of discovery and has not established any proof that he suffered prejudice by the court's failure to further adjourn the case.
Defendant's remaining arguments with regard to his conviction are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Regarding the identification testimony, the court correctly applied the two-part test focusing on impermissible suggestiveness and the reliability of the witness's identification. See State v. Adams, 194 N.J. 186, 203 (2008). The photo arrays were consistent with the Attorney General's Guidelines and not impermissibly suggestive. Both victims testified to recognizing defendant as their former co-worker. Defendant's challenges go to the credibility of the witnesses and not the reliability of their identifications based on past association. Because there is sufficient credible evidence in the record to support the court's findings that the identifications were reliable, we do not disturb them. Id. at 203.
Although the single photo shown to Kwakye hours after the crime could be considered impermissibly suggestive, Kwakye's testimony that he recognized defendant immediately as someone who used to work at Security Park easily established the reliability of his identification of defendant. "Reliability is the linchpin in determining" admissibility. State v. Madison, 109 N.J. 223, 232 (1988) (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). --------
Defendant's challenge to the court's initial instruction to potential jurors on the robbery charge, because the judge did not make clear that its instruction related to the first count of the indictment, is without merit. The context of the court's remarks left no doubt that it was providing the jurors with the charges against defendant and not stating or implying that defendant was guilty of robbery.
Defendant challenges his sentence on the grounds the court imposed sentence in his absence and without affording him the right of allocution, and erred in weighing the aggravating and mitigating factors. We disagree.
Defendant spoke on his own behalf at sentencing. He complained that the State had overstated the seriousness of the case noting no one was killed, and that "[i]t's not that severe." He expressed the view that consecutive sentences were unwarranted and that the court "owes [him] some more leniency" in light of the trial he had to endure. He complained that he was forced "to trial with an attorney I fired" and "went into trial without a full discovery offered to me the day you selected the jury." He contended the State had never negotiated a plea but only made one offer two years ago.
When the court spoke to remind defendant that the parties had spent the day before trial attempting to negotiate a plea, defendant interrupted him saying, "You did what? You did what, turned down every motion I put forward?" When the judge noted that defense counsel made efforts on his behalf, defendant angrily retorted, "No, she did not. That's not true."
When the judge invited defendant to finish his statement, defendant began to raise his voice, claiming: "On top of that, there's also been a whole lot of tampering with evidence, witnesses, and a whole lot of other things. A whole lot of rehearsal, whole lot of dress rehearsal. It was a big old show. My doctors didn't even show up." The judge asked him to keep his voice down and repeated his request two more times. Defendant paid no attention, instead continuing to rant that his doctors did not show up to testify for him, "because they were kept away by you and everyone else in the whole —[.]"
The judge warned defendant at that point that if he continued, he would be removed from the courtroom. When defendant shot back that "You about to do it any old way you would, the whole —," the judge had the sheriff's officers remove him from the courtroom. As defendant was being escorted out, he continued to accuse the court of corruption, yelling "You got what you paid for." The court then heard from defendant's mother and imposed sentence in defendant's absence.
The State and federal constitutions guarantee a criminal defendant "the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "Essential to that guarantee is the right of the accused to be present in the courtroom at every stage of the trial," including sentencing. State v. Luna, 193 N.J. 202, 209-10 (2007). At a sentencing hearing, a defendant also has the right to allocution, or to address the court on his or her own behalf and request leniency. State v. Blackmon, 202 N.J. 283, 297-98 (2010).
The rights to address the court and to be present at sentencing are not absolute. A defendant can expressly or implicitly waive these rights, Luna, supra, 193 N.J. at 210; R. 3:16(b), and a court is free to remove a disobedient or belligerent defendant from the courtroom to maintain order and decorum. State v. Spivey, 122 N.J. Super. 249, 255-56 (App. Div. 1973) (discussing Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 1061, 25 L. Ed. 2d 353, 359 (1970), where the Court said that "trial judges confronted with disruptive, contumacious, stubborn, defiant defendants must be given discretionary power to meet the circumstances of a case" and might bind and gag a defendant, hold the defendant in contempt of court, or remove the defendant from the courtroom), rev'd on other grounds, 65 N.J. 21 (1974).
Although defendant was removed from the courtroom, we cannot agree that he was denied his right of allocution. The court provided defendant the opportunity to address the court on his own behalf. Defendant expressed his belief that the prosecutor had overstated the severity of the case and recounted the reasons why he believed he was deserving of leniency from the court. Defendant was only removed after he began to raise his voice, and only after being warned that he would be removed if he persisted in using his presence to disrupt the proceedings instead of addressing the court. Although defendant was not present at sentencing as he should have been, we cannot find on this record that the fault lay with the trial judge. Defendant effectively waived his right to be present at sentencing by refusing to control his behavior.
We also reject defendant's argument that his sentence is excessive. "Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We are satisfied that the judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Defendant's remaining arguments as to his conviction and sentence are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2)
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION