On July 11, 1986, the defendant, David Mark Russo, filed two pro se motions, one for dismissal of the two Public Defenders assigned as his counsel, and the other for leave to proceed pro se with court appointed counsel to represent him. On September 11, 1986, oral arguments were presented in which the State, the defendant, and his public defender attorneys participated. It is important to state at the outset, that at this hearing, the defendant withdrew that portion of his motion requesting court appointed counsel. It was made clear by the defendant that the motions addressed only the dismissal of his assigned counsel and the right of the defendant to proceed pro se without appointed counsel to represent him. This opinion addresses the two motions urged by the defendant, specifically:
Whether or not the defendant should be permitted to proceed pro se;
Whether or not his assigned Public Defenders, Fred Last, Esq., and P. Jeffrey Wintner, Esq., should be dismissed as his counsel.
Defendant's motion to proceed pro se, without the assistance of any counsel, will be discussed first.
The defendant properly cited Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), as the controlling case on the issue of proceeding pro se. In Faretta the Supreme Court held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so and the State may not assign a lawyer to represent him when he insists that he wants to conduct his own defense.
A defendant in a criminal prosecution may choose to conduct his own defense and waive his right to counsel, Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 241, 87 L. Ed. 268, 275 (1942); Johnson v. Zerbst, 304 U.S. 458, 468, 58 S. Ct. 1019, 1024, 82 L. Ed. 1461, 1468-1469 (1938); Moore v. Michigan, 355 U.S. 155, 161, 78 S. Ct. 191, 195, 2 L. Ed. 2d 167, 172 (1957); State v. White, 86 N.J. Super. 410 (App.Div.1965); Zasada v. State, 19 N.J. Super. 589 (App.Div.1952); State v. Burkitt, 120 N.J.L. 393 (Sup.Ct.1938), but that right is not absolute and there is a strong presumption against such a waiver. (Emphasis supplied.)
In dealing with the issue of the waiver of counsel and the right to proceed pro se, this court addresses this issue in a two-fold manner: First, this court will look at the importance of counsel; second, whether the waiver was proper.
The importance of the effective assistance of counsel in criminal prosecutions, guaranteed by the Sixth Amendment as well as by the N.J.Const. Art. 1, par. 10 was addressed in State v. Sugar, 84 N.J. 1 (1980). The court in Sugar, 84 N.J. at 16 stated the following:
Those guarantees recognize the obvious but important truth that "the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty . . ." Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S. Ct. 1019, 1022, 82 L. Ed. 1461 (1938); see Rodriquez v. Rosenblatt, 58 N.J. 281, 295 (1971). Without the guiding hand of counsel, an innocent defendant may lose his freedom because he does not know how to establish his innocence. Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 64, 77 L. Ed. 158 (1932); see Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S. Ct. 2006, 2009, 32 L. Ed. 2d 530 (1972). Trained counsel is also necessary to
vindicate fundamental rights that receive protection from rules of procedure and exclusionary principles. See State v. McCombs, 81 N.J. 373 (1979); State v. Stein, 70 N.J. 369, 384 (1976). Where the doctrine supporting those rights "has any complexities the untrained defendant is in no position to defend himself. . . ." [ Rodriquez, 58 N.J. at 295,.]
The Supreme Court in Faretta, 95 S. Ct. at 2540, stated that "the help of a lawyer is essential to assure the defendant a fair trial." In stating this, the court, in footnote 43, cited the passage from Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 64, 77 L. Ed. 158:
Even the intelligent and educated laymen has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.
In State v. White, 86 N.J. Super 410 (App.Div.1965), the court cited an Ohio decision which held the trial court had properly required that the accused be represented by counsel notwithstanding his demand that he be permitted to represent himself. In McCann v. Maxwell, 174 Ohio St. 282, 189 N.E. 2d 143 (Sup.Ct.1963), the court stated:
It is the general rule that in the absence of unusual circumstances an accused who is mentally competent and sui juris has the right to conduct his own defense without the aid of counsel. Annotation, 77 A.L.R. 2d 1233; and 23 C.J.S. Criminal Law § 979(4), p. 927. In other words, a lawyer may not be forced upon an accused under ordinary circumstances.
However, there must necessarily repose in the trial court a certain discretion in these matters. If the mental condition of an accused is such, either by mental derangement or by lack of knowledge, that the court feels that the accused would be incompetent to conduct his own defense and thus be deprived of a fair trial, or the gravity of the offense is such that it carries a severe penalty, the court may, in the interest of justice or if it feels it necessary in order to protect the judicial process from deterioration, appoint counsel to represent the ...