Opinion
DOCKET NO. A-5785-08T1
01-30-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRIAN WAYNE SAMUELS, a/k/a POP, BRYAN SAMUELS and JEFFREY SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-08-1368.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a remand from the Supreme Court for a new trial on specified counts of an indictment, a jury found defendant Brian Wayne Samuels guilty of first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. The judge sentenced defendant on those convictions and on a conviction for aggravated assault by pointing a firearm, N.J.S.A. 2C:12—1b(4), that had survived his prior appeal and petition for certification. State v. Samuels, 189 N.J. 236 (2007). We affirmed the new convictions and defendant's sentence. State v. Samuels, No. A-5785-08 (App. Div. Aug. 12, 2011).
Subsequently, the Supreme Court granted defendant's second petition for certification and summarily remanded to this court for us to reconsider, in light of its recent decision in State v. King, 210 N.J. 2 (2012), defendant's claim that the trial court erroneously denied his right to self-representation. State v. Samuels, ____ N.J. ____ (2012). After considering the record in light of King and the parties' supplemental briefs on the issue, we conclude that reversal is required.
The trial judge heard argument on defendant's motion to represent himself on August 21, 2008. The court commenced the motion hearing by summarizing the proceedings since the Court's remand, which included case management conferences and assigned counsel's efforts to obtain an expert and pre-trial motions to dismiss the indictment, as well as defendant's pro se motions, submitted to the court through counsel, to obtain discovery and suppress trial testimony.
In describing the procedural history since remand, the trial court noted that defendant's pro se motions had "no basis or relevance" and some "dealt with issues directly addressed or indirectly addressed by the Supreme Court." In the trial court's view, those motions demonstrated that "obviously [the defendant] was not familiar enough with the court rules and the procedures, otherwise he wouldn't have filed those motions." The trial court further advised defendant that he would not appoint substitute counsel just because defendant "doesn't like the attorney that [has] been assigned to him."
That said, the trial court informed defendant that in order to grant defendant's request to proceed pro se at trial the court would have to find that defendant is "in a position to be able to do that[,] legally [and] intellectually," after questioning him "in detail as set forth in State v. Crisafi, 128 N.J. 499 (1992) and State v. Ortisi, 308 N.J. Super. 573 (App. Div. 1998)."
The trial court proceeded with the inquiry.
Q Mr. Samuels —
A Yes.
Q — do you understand the folly of what you're attempting to do?
A Yes.
Q Then why do you want to do it?
A Because I've — I understand I would have a better chance at going home than allowing her, like [my prior attorney] to do practically nothing for my case.
. . . .
Q So that has nothing to do with [your lawyer in this case].
A Yeah, well, she fits right in — right into the protocol of [my prior attorney] because she hasn't done — he — like he — he hasn't done anything and like —
Q Well, he —
A and she hasn't — she's not doing anything.
Q [The prior attorney's] obligation on the case ceased with the judgment of conviction. So he's — he's not in a position to do anything.
A I —
Q What happened prior to [this attorney's] representation she cannot control. She has been assigned on this remand to represent you.
A I understand that.
Q Unless you're going to hire your own attorney, she's the attorney that's going to represent you. She's an experienced attorney. She's tried many cases in front of me. It's obvious to me you don't understand the law or the formalities and procedures of a trial, just based on the paperwork I've reviewed that you sent to me. I mean, I explained to you that the old adage goes that someone who represents themselves has a fool for an attorney.
A Right. I —
Q I don't understand what you think you're going to gain by you representing yourself.
A Well, like for example, she came downstairs she asked me, like she just told you, what's the difference between conspiracy and accomplice liability. I told her. She told me I was wrong and my — it's from my case right here. . . . Like I told you, you said I was wrong. It's right in my case. This is my case. So — so being that -
Q Well, you're saying you were not legally accountable for what the —
A I wasn't — the crime never happened, Your Honor.
Q Well, that's a decision for the jury to decide and the jury apparently in the last trial decided it did happen.
A By the case of — of the — of the Supreme Court that said this, that the distinction between —
Q What the Supreme Court's decision said is that you should get a new trial because the Judge failed to properly read to the jury —
A Exactly.
Q — lesser included offenses.
A And also it said —
Q So it was sent back to me so that you could be tried on the issue of armed robbery, on the issue of attempt to commit an armed robbery, on the issue of conspiracy to commit robbery, and on the lesser included offense of accomplice to commit armed robbery. . . .
A It says though right here that his instruction on vicarious liability he completely obliterated the standard between both, that's how I got found guilty because what he had told the jury what to do.
. . . .
Q So why are you repeating what I just said?
A It's because I wanted — because I want to let you know I understand that's what you said, but — but I'm going to let you know I got found guilty because of that, that — that — this is not evidence of a robbery, Your Honor.
Q No. They said the — the Appellate Division — the Supreme Court rather, said that because he didn't read them and give them those other options, and because his instruction on conspiracy where he tried to incorporate aiding and abetting was confusing to them —
A Right.
Q — they were sending it back so all of those could be re-read after a new trial, that's what they said, to give the jury options of not just finding you guilty of armed robbery, but of maybe the lesser
included offense of attempted armed robbery, and not just finding you guilty of conspiracy, but maybe aiding and abetting the robbery, as opposed to conspiracy to committing the robbery. That's why it came back. [Your attorney is] perfectly capable of handling that.
A I don't think so.
Q Why don't you think so?
A I don't think here because since — since I had her[] for over a year-and-a-half she hasn't done anything for me as far as filing motions for me or —
Q Well, what motions? All the motions were filed before.
A I did - I'm the one that did it.
Q Yeah, but the motions you filed were ridiculous. They didn't mean anything.
A Yeah, well, that's what you saying, Your Honor, because —
Q Well, I'm the one — unfortunately, Mr. Samuels, that's what I'm saying, I'm the one[] that rules on the motions.
. . . .
A That's why I need to go pro se, because I'm never going to allow this person here that — to represent my case properly.
Q I'm not — I'm not letting you go pro se. I mean, without even —
A I mean —
Q — without even — without even going into the questions that I have to cover, it's clear to me that you can't see the forest
for the trees. You don't know even know why the case has been sent back here.
A I know why it got sent back here, I just told you that.
. . . .
After additional discussion of defendant's complaint about his lawyer, the court inquired about defendant's experience with the criminal justice system and legal training. Defendant said he had been tried before, had a twelfth grade education and had spent a few years in jail studying a book on criminal practice and procedure. Defendant identified the pending charges, and the court questioned him on the elements of those charges and the penalties. Defendant acknowledged that he would have to "refresh" his "memory" of the No Early Release Act and said he was "somewhat" familiar with the Rules of Evidence. Later, he indicated that he would also need to refresh his memory on Sands/Brunson but said that he understood that if he testified the prosecutor could bring up his prior convictions.
The court alerted defendant to burdens he would face if he proceeded pro se, explaining that he would not be able to raise a claim of ineffective assistance of counsel and advising him of difficulties he would encounter in representing himself at trial in attempting to cross-examine the State's witnesses without effectively testifying:
Q Do you understand that by acting as your own attorney and by you asking the questions of the witnesses on cross-examination that a jury might infer from the questions that you're asking that you have knowledge of incriminating evidence not derived from any of the police reports or other pretrial discovery? That just by your questions you could put yourself in the jackpot. Do you understand that?
A Yes.
Q You don't care about that? A No, I don't.
Q What other rights do you have in this courtroom?
A I have a — I have a right to represent myself as Faretta v. California clearly states and McKaskle v. Wiggins.
Q What about your right to remain silent?
A That too. I'm not — I'm not going to — I'm not going to violate the — me — going overboard and doing stuff I'm not supposed to do. I'm not going to — and, Your Honor, I promise you, I'm not going to take too much of the [c]ourt's time by having a frivolous argument . . . .
Q Well, what's going to happen if you decide to testify?
A Well, I believe just for the — you have arguments in front of the — in front of the jury would be good enough. I don't have to testify.
. . . .
When asked if he had any defenses other than a denial of guilt, defendant advised the court he would "have something in store." The court asked defendant if what he had in store was an affirmative defense. Defendant said it is "very affirmative," explaining that he would stress the fact that the officer involved in the arrest charged him with a different crime than the crimes charged by the grand jury, which he viewed as persuasive evidence of the fact that he had not committed the crimes charged in the indictment.
The trial court set forth these findings of fact and legal conclusions:
I am satisfied from the questioning that I've taken part in of the defendant in accordance with State v. Crisafi that he is not capable of representing himself. He has shown to me confusion as to how he was convicted the last time, confusion concerning the jury's ability to reach their conclusions, confusion as to why he was initially charged with robbery in the indictment, even though he was not originally charged that by the local police department, confusion as to what an affirmative defense is. Certainly he could cross-examine Officer Pilone about why he didn't sign the other charges, but that's not a defense.
He has shown to me an inability to articulate properly his cause to the jury. He is not familiar with the voir dire process as it now is constituted and what all that entails. I think, and I find as a matter of fact that he's confused as to whether or not it would be in his best
interest to either testify or not testify without having someone giving him advice on that issue.
I am not satisfied that he meets all the requirements. Even though he wants to represent himself, I have to ensure that he is properly represented in this case. I find that there has been a long delay from the first trial to this trial — to us getting a date for this trial. However, it was done because the defense, counsel here, was pursuing an avenue that she thought would be a viable assistance in the defendant's defense to this charge.
As I understand it from my review of the Supreme Court's decision, a sting operation of sorts had been set up, officers had located themselves within a motel room. They had arranged with another individual, this defendant's codefendant who, after the incident, fled the scene and is still a fugitive, for the sale or purchase of drugs that when that other individual, the codefendant, arrived Mr. Samuels was with him. Mr. Samuels had allegedly met up with him sometime earlier in the evening, but when the officer walked out and confronted the other individual, the codefendant, he was confronted with a drawn handgun. A confrontation then ensued. During the confrontation the codefendant was able to get free and run, and this defendant was secured and arrested.
Some time between the original arrest and the matter going to Grand Jury, the theory that the individuals who confronted the police were there to rob them was expounded on. . . .
. . . .
Through the [a]ppellate process up through the Supreme Court remand, the only
two counts that remain are the conspiracy to commit armed robbery and the armed robbery. The matter was returned to this court for trial because Judge Kennedy failed to read to the jury the lesser included offense of attempted robbery and failed to read to the jury, in addition to conspiracy to commit armed robbery, the offense of aiding and abetting an armed robbery. Apparently Judge Kennedy, in reading a conspiracy charge, also read a section on vicarious liability, which he felt covered both options, but the Supreme Court felt that that confused the jury.
. . . .
I'm satisfied, listening to the defendant read to me his understanding of how the matter got here, that he doesn't completely understand it. I think it would be a travesty of justice for me to allow him at this point to represent himself. Although, under normal circumstances, he has that right.
He is not capable, based on his educational background, his knowledge of the law, and his abilities here, to effectively provide his own counsel. And for all of those reasons, I'm going to deny his request to dismiss [his attorney] and deny his request to appear pro se.
. . . .
The court summarized:
[I]t's not that I don't allow anybody to appear pro se, because as I indicated, I have a pro se appearing on his own defense on September 8th where [your attorney] is stand by counsel. He was able to convince me that, based on the charges in that case, and his knowledge of the law, that he was
capable of representing himself. You have not and that is why I deny your request.
"Defendants possess not only the right to counsel, but the right to dispense with counsel and to proceed pro se. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). . . . A defendant can exercise the right to self-representation only by first knowingly and intelligently waiving the right to counsel. McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S. Ct. 944, 948, 79 L. Ed. 2d 122, 130 (1984)." State v. Crisafi, 128 N.J. 499, 509 (1992); see also State v. Reddish, 181 N.J. 553, 592 (2004).
To ensure that the election is knowing and intelligent, our courts must inform the defendant of the potential consequences and pitfalls. The trial court must explain:
(1) the nature of the charges, statutory defenses, and possible range of punishment;
(2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and
(9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.
[State v. DuBois, 189 N.J. 454, 468-69 (2007).]
Without question, the trial court covered this information in its colloquy with defendant, which consisted of a searching inquiry into defendant's understanding of these matters. See King, supra, 210 N.J. at 18 (noting the need for a searching inquiry); Crisafi, supra, 128 N.J, at 509-10 (same). The charges in issue, the maximum penalties, the risks and problems inherent in self-representation imposed by a pro se defendant's dual role, the foolishness of proceeding without counsel and the resulting bar against a claim of ineffective assistance of counsel were all addressed. Ibid.
In King, which was decided after the trial court decided defendant's motion and this court reviewed the ruling, the Court provided clear direction on the purpose of the searching inquiry the trial court must conduct. The Court explained:
When a trial court is presented with a defendant who seeks to proceed pro se, and engages that defendant in such a colloquy, its goal is not to explore a defendant's familiarity with "'technical legal knowledge[,]'" for that is not required. Reddish, supra, 181 N.J, at 595 (quoting Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581-82). Rather, "the trial court must question defendant to
ascertain whether he actually understands the nature and consequences of his waiver." Id. at 594 (citations omitted).
[210 N.J. at 19 (alteration in original).]
Most pertinent here, in King the Court held that the trial court's "well-intentioned" concern "about defendant's ability to present a sound defense" could not "override defendant's exercise of his right to decide to represent himself," in the absence of anything in the record "indicat[ing] that defendant lacked the competency to make that choice." Id. at 21.
As we understand King, the State's interest in the reliability of a verdict on charges such as those at issue here that is implicated by a defendant's lack of legal knowledge is insufficient to trump a defendant's knowing and informed decision to waive his right to counsel and proceed pro se. See generally Reddish, supra, 181 N.J, at 587 (discussing reliability in a death penalty case mandated by the Eighth Amendment); State v. McNeil, 405 N.J. Super. 39, 51-53 (App. Div. 2009) (upholding a denial of a request for self-representation based on mental incompetence precluding self-representation).
In this case, as in King, the trial court's denial of defendant's motion was based on its well-intentioned concern that defendant lacked the educational background, legal knowledge and ability to "effectively" serve as his own counsel. The trial court made no findings of fact supporting a determination that defendant, having been informed by the court of the charges, maximum sentence, risks, and inherent difficulties and consequences of self-representation, lacked the capacity to elect self-representation. See generally Reddish, supra, 181 N.J, at 587.
Because the record does not support the denial of defendant's right to represent himself based on the invalidity of his waiver, King requires reversal of the convictions obtained in his second trial.
Defendant's convictions for first-degree robbery and resisting arrest are reversed and the matter is remanded to the trial court for further proceedings.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION