On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Halpern, Larner and King. The opinion of the Court was delivered by King, J.A.D.
A jury found defendant guilty of robbery, assault with intent to rob, and atrocious assault and battery. He was sentenced to 9 to 11 years aggregate in State Prison, to run consecutive to all sentences he was presently serving. Defendant appeals, raising a novel right to counsel question.
This is the background. A jury was selected, but remained unsworn. Defendant then presented pretrial motions, advanced through his counsel, to have a prison inmate act as cocounsel, to dismiss the indictment for lack of speedy trial, and to conduct a Wade hearing. They were denied. The prosecution then moved to exclude the testimony of eight defense witnesses, all prison inmates, because the defense did not comply with the requirements of discovery R. 3:13-3. These inmates reputedly would have attacked the credibility of the testimony of a State's witness, Ollie Johnson. The judge granted the State's motion and refused to fashion a less drastic alternative than total exclusion of their testimony.
A verbal exchange between the judge, counsel and defendant followed, fueled by defendant's frustration upon losing the pretrial motions. The exchange concluded with defendant discharging his attorney and leaving the courtroom. Before leaving, defendant admitted he was not competent to represent himself. Defendant was advised by the judge that he could return to the courtroom at any time. After defendant left the courtroom, defense counsel expressed his belief that "the man should have representation," but apparently agreed with the judge that "if he doesn't want me, there is no way I can force him, any more than you can, judge."
The trial judge concluded that he could not force counsel on defendant. Defense counsel remained in the courtroom but did not participate in the trial. The jury was sworn, the prosecutor opened, presented three witnesses, rested his case, and closed to the jury. The judge charged the jury, which deliberated for one-half hour and returned the guilty verdict.
On appeal the Public Defender contends that defendant was denied the effective assistance of counsel, in violation of the Sixth Amendment of the Federal Constitution and of the State Constitution. N.J. Const. (1947), Art. I, par. 10. The Public Defender argues that the trial judge erred in not ordering defense counsel to remain in the case and participate vigorously in the defense, even though defendant was unwilling to represent himself or accept designated counsel. The Prosecutor of Atlantic County and the Attorney General both appear on this appeal and take somewhat divergent paths. Both urge affirmance of this conviction on the theory of effective waiver of counsel. The prosecutor contends that this criminal defendant freely and knowingly embarked on a self-determined course of disruption and should have no cause for complaint at this point. He says defendant waived counsel, and waived his right to be present, and we should not indulge him at this
point, where he undertook to disrupt the orderly and traditional conduct of his trial.
The Attorney General, while agreeing that this defendant's conviction should be affirmed, asks us to articulate a rule for the future in this situation. The Attorney General suggests "that where a defendant attempts to undermine the trial process by refusing to remain in the courtroom and by dismissing counsel, the trial judge, whose immediate purpose is to ensure an orderly and fair trial, should assign counsel to represent defendant, even against his wishes, and if necessary without his cooperation."
The proceeding here was not a conventional trial. We hold that the judge should have ordered counsel to remain at the bar and participate as vigorously as circumstances permitted in the defense of the accused. Defense counsel should have been instructed to open to the jury, cross-examine the State's witnesses, call defense witnesses if available, close to the jury, submit appropriate requests to charge, and object to the charge, if necessary. We would then be convinced that defendant, although uncooperative and obstructive, received his constitutional entitlement to a trial by jury.
What we observe in this record is not a trial but an ex parte , nonadversarial, in absentia proceeding, not unlike a grand jury presentation. Indeed, in contrast to a conventional trial, this was almost a charade. The record does not support an effective waiver of counsel under the required constitutional standard, and we should indulge in every reasonable presumption against a waiver. Johnson v. Zerbst , 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 2d 1461 (1938). Even if the record supported a waiver, we would not allow a defendant to waive his right to counsel and also his right to conduct his own defense. To do so would be to rule, in effect, that no trial would occur. Since Faretta v. California , 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 ...