On certification to the Superior Court, Appellate Division, whose opinion is reported at N.J. Super. (1979).
For affirmance -- Justices Sullivan, Pashman, Clifford and Handler. For reversal and remandment -- Chief Justice Hughes and Justices Mountain and Schreiber. The opinion of the court was delivered by Clifford, J. Pashman, J., concurring. Schreiber, J., dissenting. Chief Justice Hughes and Justice Mountain join in this opinion. Hughes, C.J. (retired), dissenting.
The judgment of the Appellate Division is affirmed substantially for the reasons set forth in that court's opinion. 171 N.J. Super. 161 (App.Div.1979). We add the following comments only for the purpose of emphasis.
When defendant rejected his assigned counsel, he also expressly refused to represent himself.*fn1 While it is clear, as we shall stress below, that an indigent defendant cannot have it both ways, it is equally clear that he cannot be left adrift during so crucial a phase of the trial as the jury selection process. In this case the lack of representation was properly -- but belatedly -- corrected by the trial court when, after jury selection and
the State's opening, it required assigned counsel to deliver an opening statement and thereafter to participate in the trial on behalf of defendant, which he did with obvious vigor and considerable skill.
The Attorney General urges that
"[t]herefore defendant was without active representation only during jury selection. While defendant's peremptory challenges may not have been effectively utilized, see R. 1:8-3(d); Wright v. Bernstein, 23 N.J. 284, 293 (1957), it should be emphasized that chief responsibility for the conduct and control of jury selection rests with the trial court, and that it is the trial judge himself who conducts jury voir dire. R. 1:8-3(a); State v. Manley, 54 N.J. 259, 281 (1969). The State therefore submits that little actual prejudice inured to defendant as a result of the court's action.
The argument, with its implication that "actual prejudice" must be shown before the absence of representation rises to the level of a fatal defect in the criminal proceeding, inferentially denigrates the importance we have attached to the role of counsel, particularly in the process of choosing jurors. Recently this Court characterized jury selection as "an integral part of the process to which every criminal defendant is entitled." State v. Singletary, 80 N.J. 55, 62 (1979). See State v. Jackson, 43 N.J. 148, 157-58 (1964), cert. den., sub nom. Ravenell v. New Jersey, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965); State v. Deatore, 70 N.J. 100, 105-06, 358 A.2d 163 (1976).
The role of counsel in fully utilizing that process to obtain as impartial a jury as possible has likewise been stressed by the United States Supreme Court. In Swain v. Alabama, 380 U.S. 202, 219-22, 85 S. Ct. 824, 835-36, 13 L. Ed. 2d 759, 772-74 (1965), the Court discussed the importance of the advantageous use of peremptory challenges to both sides in a criminal trial:*fn2
In contrast to the course in England, where both peremptory challenge and challenge for cause have fallen into disuse, peremptories were and are freely used and relied upon in this country, perhaps because juries here are drawn from
a greater cross-section of a heterogeneous society. The voir dire in American trials tend to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted. The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. Although "[t]here is nothing in the Constitution of the United States which requires the Congress [or the States] grant peremptory challenges," * * * nonetheless the challenge is "one of the most important of the rights secured to the accused * * *. The denial or impairment of the right is reversible error without a showing of prejudice " * * *. "For it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose."
[T]he question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be. It is well known that these factors are widely explored during the voir dire, by both prosecutor and accused * * *. This Court has held that the fairness of trial by jury requires no less. Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried. [380 U.S. at 218-21, 85 S. Ct. at 835-836, 13 L. Ed. 2d 771-73; citations and footnotes omitted; emphasis supplied.]
See also State v. Singletary, supra, 80 N.J. at 81 (Handler, J., dissenting).
While it is now unmistakably clear that defendant need not show he was prejudiced by the absence of counsel, nevertheless we point to the circumstances of this case to illustrate the impact of defense counsel's absence on the composition of the jury which sat in judgment.*fn3 Defendant was tried on multiple charges including breaking and entering with intent to steal, assault with intent to kill, and assault and battery upon a police officer. Of the fourteen jurors selected to hear the case, one's home had (to use her expression) been "broken into and robbed,
vandalized"; a second knew one of the State's medical witnesses and had two cousins and a nephew in law enforcement, one of whom was a state trooper; a third had a brother-in-law who was a retired New York City detective and his home also had been broken into and materials stolen therefrom; a fourth had two "close friends" who were state troopers; and a fifth "had some breakings and enterings, assault and battery about five years ago." Each of these responded in the negative to the trial court's single exploratory question whether these factors "would have any bearing on your ability to fairly and impartially try this defendant in this case". Of these five who heard the testimony, four were members of the jury which ultimately decided the case.
While we do not suggest that the circumstances of the respective jurors recited above would, without considerably more development thereof, have afforded grounds for a challenge for cause, see State v. Singletary, supra, nevertheless we think it fair to say that any lawyer with the slightest criminal trial experience would have exercised one or more peremptory challenges or, at the very least, have sought further interrogation on and exploration of those jurors' states of mind. But even absent the aforementioned circumstances involving the experiences of these jurors, the Appellate Division correctly held that in allowing the jury selection phase of the trial to proceed while defendant was unrepresented, the trial court committed reversible error.
As the court below aptly pointed out, 171 N.J. Super. at 161, this "critical gap" in the trial was not bridged through any notion of defendant's "waiver" of his right to counsel. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), relied on by the state and by our dissenting colleagues, is not to the contrary. The distinguishing feature of Faretta, central to its analysis and holding, is made plain in the opening paragraph of the opinion, where the question before the Court was announced
as "whether a State may constitutionally halea person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." 422 U.S. at 807, 95 S. Ct. at 2527, 45 L. Ed. 2d at 566 (emphasis added). In giving a negative answer to that question -- entirely different from the issue before us -- the United States Supreme Court emphasized that in waiving his right to counsel in favor of representing himself, a defendant must "knowingly and intelligently" relinquish that right. 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581. Most assuredly McCombs neither "knowingly" nor "intelligently" gave up his right to counsel in order to represent himself, for he made it abundantly clear that self-representation was the last thing he wanted and assistance of counsel was the first. That it was McCombs' recalcitrance that led the trial court to permit, for a brief -- but critical -- span, assigned counsel's withdrawal from the case does not detract from the fundamental character of the error.
Finally, we return to our earlier observation that defendant cannot have it both ways -- that is, he cannot refuse to represent himself but at the same time reject the services of assigned counsel. Our trial courts will continue to be controlled by trial judges, not by defendants. As we have already suggested, under the circumstances of this case the trial court should have ordered counsel to participate once it became apparent that the obdurate defendant was not going to conduct his own defense. The court below correctly cited State v. Wiggins, 158 N.J. Super. 27, 31, (App.Div.1978), for this proposition. The Wiggins court, in turn, looked to Chief Justice Burger for the proper policy evaluation when it said:
There are higher values at stake here than defendant's right to self-determination. We find the analysis by Chief Justice Burger, concurring, in Mayberry v. Pennsylvania, 400 U.S. 455, 467-468, 91 S. Ct. 499, 27 L. Ed. 2d 532 (1971), applicable.
In every trial there is more at stake than just the interests of the accused; the integrity of the process warrants a trial judge's ...