Opinion
No. A-5953-04T4
Resubmitted June 1, 2007
Decided September 27, 2007
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-04-1749.
Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Paula T. Dow, Essex County Prosecutor, attorney for respondent (Hilary L. Brunell, Executive Assistant Prosecutor, of counsel and on the brief).
Before Judges Cuff, Fuentes and Baxter.
On June 1, 2007, the Supreme Court remanded this matter to us for reconsideration in light of its opinion in State v. DuBois,189 N.J. 454 (2007). In an unpublished decision rendered on February 8, 2007, we reversed defendant's conviction, holding that his waiver of his Sixth Amendment right to counsel was not done knowingly, intelligently and voluntarily. State v. Vaughn, No. A-5953-04 (App.Div. February 8, 2007) (slip op. at 4). Thereafter, the State filed a petition for certification, and the Court summarily remanded for reconsideration in light of its opinion in DuBois.
I.
Our reversal of defendant's conviction resulted from our conclusion that the trial court did not explain to defendant enough about the specific hazards he faced in representing himself so as to enable him to fully appreciate the risk he was taking by waiving his right to counsel. We held that no more than a "fleeting discussion" was ever held at either of the two waiver hearings about the nature of the thirteen-count robbery indictment defendant faced. Vaughn, supra, slip op. at 17. Specifically, we observed that the judge never advised defendant that he was charged with an armed robbery of four victims during three separate incidents; that he could be required to serve eighty-five percent of any sentence without parole; that each victim had selected his photograph from a photo array; that although he had no burden of proof, he should nonetheless endeavor to persuade the jury that the out-of-court identification had been unduly suggestive or otherwise unreliable; that the cumulative effect of four victims' testimony presented special difficulty, far more than he would face in a single-victim trial; or that in cross-examining the victims he might inadvertently demonstrate an awareness of facts of the robberies not contained in witness testimony or in police reports, thereby causing extreme prejudice to any defense he might have raised. Id. at 17-18.
We further determined that the waiver hearing did not include any discussion by the judge of the elements of the offense of robbery or possible defenses to that charge. Ibid. For those reasons, we held that "[t]he record is devoid of any evidence that the defendant was ever made aware of any of the particular difficulties . . . that faced him in this exceedingly difficult robbery trial," and we reversed defendant's conviction because of our "grave concern" about whether this particular defendant waived counsel knowingly. Id. at 18.
Our opinion recognized that a trial judge's failure to properly conduct a Crisafi hearing "does not end the court's inquiry whether a defendant has waived counsel knowingly and intelligently."Ibid. (quoting Crisafi, supra, 128 N.J. at 512). We held that the ultimate focus must be on a defendant's actual understanding of the waiver of counsel and even if the colloquy is inadequate, the conviction should be upheld if the defendant knowingly and voluntarily waived his right to counsel. Id. at 18. Our review of the record led us to conclude that defendant did not present the "exceptional case" in which a waiver of counsel can be accepted even though it was not preceded by the thorough discussion of the perils of self-representation thatCrisafi, supra, commands. Id. at 19 (quoting Crisafi, 128 N.J. at 513).
State v. Crisafi, 128 N.J. 499 (1992).
II.
In DuBois, the Court held that even though the colloquy at the waiver hearing was deficient in some respects, the record as a whole demonstrated that the defendant's waiver of his right to counsel was done knowingly and that any deficiencies in the colloquy were harmless in light of defendant's background, his work ethic and defendant's answers to several open-ended questions that demonstrated his clear understanding of the risks of proceeding without counsel. DuBois, supra, 189 N.J. at 473-75.
On remand, the State argues that our reversal of defendant's conviction was error because "when viewed in its totality, the record below demonstrates that the defendant understood the nature of his decision to represent himself at trial." The State further argues that our opinion failed to give sufficient consideration to defendant's actual experience in representing himself at a prior jury trial on an unrelated indictment in which he was acquitted. Finally, the State argues that our determination that the trial judge erred by not discussing with defendant the "case-specific difficulties" that he would face in a robbery trial "is not a requirement that can be read intoCrisafi or DuBois," and that we accordingly subjected theCrisafi waiver hearing to an unreasonably high standard. For those reasons, the State urges us to conclude that the trial judge did not abuse his discretion when he accepted defendant's waiver of counsel, and requests that defendant's conviction be reinstated.
Defendant, in turn, argues that our decision properly applied the standards established by Crisafi. He further argues that nothing in the Court's opinion in DuBois should cause us to reverse our prior decision. We have fully considered the arguments of both parties, have evaluated our opinion in light of the Court's decision in DuBois, and conclude that the State's arguments lack merit and that nothing in the Court's opinion in DuBois warrants a result different from the one we reached in our original opinion.
We reach that conclusion because the deficiencies in theCrisafi waiver hearing that the Court identified in DuBois,supra, 189 N.J. at 472-73, were far less pervasive and of less significance than those here. In DuBois, the Court reviewed the six topics that a trial judge must discuss with a defendant before a waiver of counsel can be deemed knowing and intelligent. Those elements are: "(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 lack of knowledge of the law may impair defendant's ability to defend himself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel." Id. at 467.
Of those six, the only deficiencies in the waiver hearing that the Court identified in DuBois pertained to the fifth requirement. The Court held that the trial judge's discussion with the defendant of the hazards presented by his dual role as defendant and attorney "in large measure, was satisfied, albeit not completely," and that the judge erred by not advising the defendant that self-representation might undermine his privilege against self-incrimination. Id. at 471. The Court held that the remaining fiveCrisafi requirements were satisfied. Id. at 469-72.
Here, in contrast, the trial court's explanation of the firstCrisafi requirement, a discussion of the nature of the charges and the range of punishment was markedly deficient, as was the trial court's handling of the second Crisafi requirement, the technical problems associated with self-representation. As we explained in our original opinion, our analysis of the Crisafi waiver hearings encompasses both the May 5, 2004 Crisafi hearing on an unrelated drug distribution indictment against defendant, as well as the colloquy conducted on October 19, 2004 when the instant armed robbery trial began.
We begin by discussing the first of those two Crisafi requirements. At neither of the hearings did the judge discuss with defendant, or ascertain that defendant understood, the relevant statutory defenses to a charge of robbery or the elements the State was required to prove beyond a reasonable doubt. For example, the judge never explained to defendant that the State was required to prove that in each of the four robberies he was armed with, used or threatened the immediate use of a deadly weapon, as required by N.J.S.A. 2C:15-1(b). Unquestionably, unless the court satisfies itself that the defendant understands the nature of the charges and possible defenses, the court cannot make an informed decision on the critical question of whether a defendant's waiver of counsel is knowing and voluntary.
As to the second Crisafi requirement, which concerns the trial court's responsibility to assure itself that "a defendant understands the technical problems associated with self-representation," here the trial judge's explanation of this topic was confined to reminding defendant that unlike his first trial on the drug distribution charge, in which he had been acquitted, he would be unable to "exploit" possible police antipathy toward him because the alleged victims of the robbery were private citizens and not law enforcement officers.
The colloquy concerning the second Crisafi requirement included no discussion of the technical problems defendant would face in confronting the evidence that each victim had selected his photograph from a photo array, or of the cumulative effect of four victims' testimony as distinguished from a single-victim trial. Nor did the court ever ascertain whether defendant understood that in cross-examining the victims he might inadvertently demonstrate an awareness of facts of the robberies not contained in witness testimony or in police reports. Those deficiencies led us to conclude that the "record is devoid of any evidence that defendant was ever made aware of any of the particular difficulties . . . that faced him in this exceedingly difficult robbery trial." Vaughn, supra, slip op. at 18. The trial judge could not have made a determination that defendant's understanding of the technical problems associated with self-representation was sufficient to establish that defendant's waiver of counsel was knowing because no discussion of these topics ever occurred.
The sparseness of the record on this second Crisafi requirement is exacerbated by the trial judge's failure to make any findings of fact at the conclusion of the October 19, 2004 Crisafi hearing immediately before defendant's robbery trial began. Instead, when defendant indicated that he again wished to represent himself, the court responded by proceeding to a discussion of security issues in the courtroom without ever making the type of findings Crisafi requires. The trial judge's comment that defendant might have greater difficulty impeaching the credibility of the State's witnesses in the robbery trial than he had had in the drug trial fell far short of the "searching inquiry" Crisafi requires. Crisafi, supra, 128 N.J. at 510. This deficiency, when combined with the trial judge's failure to have conducted a thorough colloquy on the first Crisafi requirement, is of far greater magnitude than the trial judge's failure in DuBois to advise defendant that self-representation could undermine his privilege against self-incrimination.
We reject the State's argument that we are holding the trial judge to a higher standard than either Crisafi or DuBois requires. InCrisafi, the Court observed that "the colloquy between the court and defendant will test the defendant's understanding of the implications of the waiver, and will provide appellate courts with an objective basis for review." Crisafi, supra, 128 N.J. at 511. Here, the extremely limited nature of the discussion of the technical problems associated with self-representation in the robbery trial could not possibly "test" defendant's understanding of the implications of his waiver of counsel.Ibid.
As the Court recognized in DuBois, the failure of the trial court to engage in a thorough exchange with the defendant "does not end [the] inquiry whether a defendant has waived counsel knowingly and intelligently." Id. at 473 (quoting Crisafi, supra, 128 N.J. at 512). The factors which caused the Court inDuBois to conclude that the defendant there presented the "rare exception" where a less than thorough exchange will nonetheless be held sufficient are glaringly absent here. In DuBois, the Court pointed to defendant's background as a college-educated accountant and his having spent thirteen months in the law library before the trial began in preparation for his case. 189 N.J. at 473. Additionally, the Court reasoned that the defendant's having filed several pro se motions, including a motion to dismiss the indictment and a motion for speedy trial, demonstrated a keen understanding of the applicable law and a recognition of what he was surrendering by waiving counsel.Id. at 474.
Here, defendant Vaughn did represent himself successfully at his drug distribution trial. That, however, was a substantially different trial. There were no eyewitness identifications, no photo arrays, nor did defendant have to confront the significant prejudice resulting from evidence of three robberies and four different victims. Additionally, unlike the defendant in DuBois, who was college educated and had spent thirteen months in the law library, defendant Vaughn's understanding of the rules of evidence and procedure was limited to "breez[ing] through them." When asked if his lack of understanding of the rules of evidence would put him at a "severe disadvantage" and could create a problem for him in representing himself, defendant Vaughn, unlike defendant DuBois, brushed aside the court's query and instead responded by complaining that his lack of access to the jail law library prevented him from studying the rules of evidence. In our view, the record here cannot support a finding that defendant's background and experience were sufficient as to compensate for the less than thorough exchange that the court conducted with defendant.
We are not unmindful of defendant's acquittal at his drug distribution trial. That acquittal does not give us any confidence that defendant understood what he was facing in this extremely complicated robbery trial because of the vast differences between the two trials.
Moreover, unlike the defendant in DuBois, here Vaughn was not questioned in the open-ended fashion that would have enabled him to demonstrate that he had more than a passing knowledge of what would confront him during the robbery trial or that would have enabled the trial judge to conclude that defendant's waiver of counsel was knowing. We recognize that the requirement of asking a defendant a series of open-ended questions was not established until State v. Reddish,181 N.J. 553, 594 (2004) was decided. Reddish had not been decided at the time theCrisafi hearing was held in DuBois, but the trial judge's use of open-ended questions in DuBois gave the Court confidence that defendant indeed understood what he was giving up when he waived his constitutional right to counsel.
The decision in Reddish was issued the day the jury returned its guilty verdict in defendant's robbery trial.
Here, defendant's answers at the Crisafi hearings on May 5 and October 19, 2004 were limited to yes or no answers. The only time defendant's answers were more extensive was when he recited the offenses he was charged with in the first trial involving drug distribution. The only other occasion at either Crisafi hearing where defendant Vaughn gave an open-ended answer was when he complained about his lack of access to the law library. Under these circumstances, unlike in DuBois, nothing in defendant's answers to the court's questions enables us to ascertain with any degree of confidence that he understood the consequences of a waiver of counsel. Accordingly, unlike the defendant inDuBois, defendant Vaughn, despite his acquittal in the earlier drug trial, cannot be considered the "rare defendant" whose waiver of counsel should be deemed effective in the absence of a thoroughCrisafi inquiry.
Accordingly, having reviewed our prior opinion in accordance withDuBois as directed by the Court, we conclude that no revision of our prior opinion is warranted.