On appeal from Superior Court of New Jersey, Law Division, Ocean County.
Shebell, Baime and Keefe. The opinion of the court was delivered by Baime, J.A.D. Shebell, J.A.D., concurring.
This appeal presents nettlesome questions concerning whether a defendant, who is not indigent, may be compelled to proceed to trial without counsel where he has failed to exercise due diligence in retaining a private attorney. Also at issue is the adequacy of a curative instruction, directing the jury to ignore a substantial quantity of inadmissible and highly prejudicial evidence. We must additionally consider whether the trial court's allusion in its charge to the possibility that a conviction might be reversed on appeal diluted the jury's crucial sense of responsibility in determining the defendant's guilt.
Defendant was charged in a multi-count indictment with aggravated sexual assault (N.J.S.A. 2C:14-2a(1))*fn1 and sexual assault (N.J.S.A. 2C:14-2b)*fn2 The aggravated sexual assault charge was predicated on allegations that defendant committed acts of sexual penetration on D.W., a child less than 13 years old. The count charging sexual assault alleged that defendant committed acts of sexual contact upon L.W., a child less than 13 years old. At trial, the court determined that the alleged acts of sexual penetration with respect to D.W. occurred after her thirteenth birthday. The court thus instructed the jury to ignore the evidence that had been presented concerning defendant's alleged acts of sexual penetration. The charge was reduced to sexual assault under N.J.S.A. 2C:14-2b based upon the State's evidence that defendant committed acts of sexual contact upon D.W. prior to her thirteenth birthday. The jury
found defendant guilty on both counts. Defendant was sentenced to concurrent terms of seven years at the Adult Diagnostic and Treatment Center.
On appeal, defendant contends that (1) he was deprived of his Sixth Amendment right to counsel when the trial court compelled him to be tried without an attorney, (2) evidence of criminal sexual acts beyond the scope of the indictment was erroneously admitted and the trial court's subsequent curative charge was insufficient to eradicate the resulting prejudice, and (3) the trial court's allusion to the possibility of a reversal substantially diluted the jury's sense of responsibility by indicating that its determination was not final or binding. Based upon our review of the record, we are convinced that these arguments have merit and that defendant was denied a fair trial. We are constrained to reverse.
Initially, we recount the facts relating to defendant's attempt to retain an attorney. The indictment was returned against defendant on October 30, 1985. Defendant immediately retained a private attorney and paid him a partial retainer. Although the attorney represented defendant in the course of extensive discovery proceedings, difficulties in their relationship soon developed. Ultimately, defendant filed an ethics complaint which prompted his attorney to move to be relieved as counsel. That motion was heard and granted on April 11, 1986. Although defendant was not present at the hearing, he was advised of the court's action and was instructed to either apply to the Public Defender's Office or obtain another private attorney.
What followed thereafter is not entirely clear from the record. Defendant's application for a Public Defender attorney was denied because he was not indigent and did not satisfy the requisite statutory eligibility requirements. We digress to note that there is no claim here that defendant's application was improperly rejected, and we thus assume that he was not indigent and could afford a private attorney. We note that
other evidence in the record supports this conclusion. In any event, it appears that several scheduled trial dates were adjourned at defendant's behest, apparently based upon his promise to retain a private lawyer. Unfortunately, these conferences or hearings were not stenographically recorded. The record is thus entirely uninformative and silent as to whether, at these hearings, defendant was apprised of the pitfalls of representing himself and, if so, the nature and extent of the warnings and advice given.
Ultimately, defendant was given a peremptory trial date of January 11, 1988. On that date, defendant appeared without an attorney. In the ensuing colloquy with the court, defendant was advised generally that he was charged with aggravated sexual assault and sexual assault. However, he was not advised of the elements of those offenses or the allegations upon which the charges were predicated. Defendant was told that he faced a maximum sentence of 30 years if convicted and that it would be wise to obtain an attorney. In response, defendant noted that his prior attorney had retained the money he had sent him and that he could not afford new counsel. Although the trial court noted that it would adjourn the trial if defendant promised to secure a new lawyer, this proposal was rejected. Defendant adamantly insisted that he did not have funds for an attorney, although he acknowledged that he had recently sold his house for $62,900. Expressing substantial reluctance, defendant agreed to represent himself.
We need not recite in detail the sordid facts surrounding the crimes alleged in the indictment. Defendant originally met the mother of D.W. and L.W. in late 1983. Defendant was 61 at the time and lived alone in a small house in Toms River. Despite the disparity in their ages, a relationship developed between the two and she and her five children, including her two daughters D.W. and L.W., moved into defendant's house in January 1984. At the time, D.W. was 12 years old and L.W. was 11 years old.
At trial, L.W. testified that on several occasions, defendant touched her buttocks and chest areas under her clothing. In one instance, defendant apparently masturbated in her presence. Defendant often asked her to perform fellatio upon him, but she refused. According to the witness, these incidents occurred in the living room when no one else was present.
D.W. testified that defendant often touched her breasts, vaginal area and buttocks. In response to questions propounded by the prosecutor, the witness testified that after her thirteenth birthday, defendant forced her to have oral sex with him on approximately 50 occasions. At this point in the witness' testimony, the trial court unaccountably intervened and elicited a more graphic description of these incidents. The record discloses the following questions and answers:
THE COURT: These occasions where he asked you to put his penis in your mouth, when that would happen would his penis be hard or soft?
THE WITNESS: It would be soft.
THE COURT: And how long would that go on generally? How long would it stay in your mouth, generally? Like, did it vary?
THE COURT: How long, when you say not long?
THE WITNESS: About, like five or something minutes.
THE COURT: And then he would just take it out and that would be it?
At the conclusion of the State's case, the trial court first realized that all of the evidence pertaining to the sexual penetration of D.W. related to events following her thirteenth birthday. Since there was no evidence of sexual penetration prior to that time, the court reduced the charge to sexual assault and so apprised the jury. Despite the court's conclusion, the jury was initially told that it could ...