On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
Michels, Gaulkin and Stern. The opinion of the court was delivered by Michels, P.J.A.D.
[208 NJSuper Page 528] Tried to a jury, defendant Joseph H. Guerin was convicted of robbery, in violation of N.J.S.A. 2A:141-1, robbery while armed,
in violation of N.J.S.A. 2A:151-5 and conspiracy, in violation of N.J.S.A. 2A:98-1. After the trial court denied defendant's motion for a new trial, he moved to be sentenced under the provisions of the Code of Criminal Justice. The State thereafter moved for the imposition of an extended term of imprisonment, on the ground that defendant was a persistent offender under N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7a(4). The trial court granted both motions, dismissed the conspiracy conviction, merged defendant's conviction for robbery into his conviction for armed robbery and committed defendant to the custody of the Commissioner of the Department of Corrections for an extended term of life imprisonment, with a 25 year period of parole ineligibility. Defendant's motion for a new trial on the ground of newly discovered evidence was denied and this appeal followed.
Defendant, who was not represented by counsel at trial, seeks a reversal of his convictions contending, among other things, that he was not competent to represent himself. The pivotal issue, therefore, is whether defendant knowingly and intelligently waived his Sixth Amendment right to counsel. The record submitted on this appeal does not reveal that the standard for an effective waiver enunciated by the United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938) and its progeny was met. Therefore, notwithstanding the overwhelming proof of defendant's guilt, we are required to reverse his convictions and order a new trial.
On December 24, 1981, Cumberland County Jail officers informed the trial court that defendant, who was then incarcerated, "had verbalized a suicide threat and was acting in a bizarre manner within his jail cell." The court was further advised that defendant "appeared to be hallucinating." Based on this information, the trial court ordered that jail officials transport defendant to the Trenton Psychiatric Hospital, Vroom Building, for a psychiatric evaluation.
Following defendant's admission, he was examined by Dr. Porzio, a clinical psychiatrist in the Forensic Section. The
doctor diagnosed defendant as having an "affective disorder, bipolar disorder, single episode, manic, with psychotic features" and a "personality disorder, antisocial type." He characterized defendant's prognosis as "guarded" and commented that defendant "require[d] continued psychiatric care and treatment and [was in] need of possibly Lithium therapy following a Lithium workup." Finally, Dr. Porzio was of the opinion that, because "[i]t [was] questionable . . . whether this individual [was] capable of cooperating with his attorney in his own defense," defendant was "not capable of proceeding and [was] incompetent to stand trial at [that] time." On January 8, 1982, defendant was discharged from the hospital and returned to the Cumberland County Jail.
Relying on Dr. Porzio's report, on January 25, 1982, defendant's attorney moved to have defendant re-examined by a psychiatrist to determine his competency to stand trial. The trial court denied the motion, concluding that defendant was competent to stand trial. The trial court also denied defendant's pro se motion to conduct his own defense, in part, stating:
I have not declared you incompetent to stand trial. I declared you incompetent to represent yourself.
The trial court thereupon ordered assigned counsel to try the case, explaining:
That is one of the reasons why I felt that he should not be representing himself. He's under medication. He's competent to stand trial without any question. Competent that he knows what these proceedings are about. That's the legal standard. He is not competent in view of medication and in view of his prior mental illness and in view of his somewhat bizarre actions to handle the case as an attorney pro se. He should have competent counsel and you ...