On certification to the Superior Court, Appellate Division, whose opinion is reported at 247 N.J. Super. 486 (1991).
Pollock, Wilentz, Clifford, Handler, O'Hern, Garibaldi, Stein
The opinion of the court was delivered by
The sole issue is whether defendant, Joseph Nicholas Crisafi, knowingly and intelligently waived his right to counsel before proceeding Pro se at his trial for aggravated sexual assault and related charges. A jury convicted defendant, but the Appellate Division reversed, finding that he had not so waived that right. 247 N.J. Super. 486 (1991). We granted certification, N.J. (199 ), and now reverse.
On November 5, 1980, defendant and his girlfriend, Carol Terranova, while using false names and posing as representatives of a fictitious modeling agency, visited the home of the victim, S.K., to discuss the possibility of a modeling career. Crisafi told the victim that she would make a "perfect" lingerie model, and photographed her twice in the living room, while she was fully clothed. He then told S.K. that he would like a photograph of her in her undergarments and that because S.K. was apprehensive, Terranova would take the photographs. The victim agreed, and she and Terranova went upstairs to the victim's bedroom, where Terranova photographed her. When Terranova showed the photographs to defendant, he said he was dissatisfied with them, and he directed Terranova to take additional pictures. Terranova then requested the victim to remove her underwear. S.K. agreed "as long as [Terranova] was taking the picture." After taking one photograph, Terranova went downstairs and gave the photograph to defendant, who told Terranova to "go sit out in the car and wait for him."
Defendant then went upstairs and sexually assaulted the victim. We need not describe in detail the indignities that defendant visited on S.K. Suffice it to state that at gunpoint, he forced her to perform fellatio, attempted to strangle her, and inserted his finger into her vagina. Defendant also poked the victim in the abdomen with a letter opener and punched her repeatedly. As he attempted to bind the victim's ankles, she broke free and escaped to a neighbor's house.
Defendant was indicted for first-degree aggravated sexual assault (N.J.S.A. 2C:14-2), first-degree armed robbery (N.J.S.A. 2C:15-1), second-degree aggravated assault (N.J.S.A. 2C:12-1b(1), third-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5b), fourth-degree possession of a weapon (the letter opener) under circumstances not manifestly appropriate for a lawful purpose (N.J.S.A. 2C:39-5d), and second-degree possession of a handgun and a letter opener for an unlawful purpose (N.J.S.A. 2C:39-4a). A warrant was issued on December 8, 1980, for defendant's arrest. More than five years later, in August 1986, defendant was arrested in Texas and extradited in February 1987 to New Jersey.
To evaluate defendant's claim that he did not knowingly and intelligently waive his right to counsel, we review in some detail the pre-trial proceedings. Defendant first appeared before the trial court for arraignment on March 13, 1987. By that date he had not yet established his eligibility for representation by the Public Defender, so a pool attorney, Harold Fullilove, appeared for him. On behalf of defendant, Fullilove entered a not-guilty plea and waived a reading of the indictment. Defendant then excused Fullilove so defendant could argue pro se two motions, one for a writ of habeas corpus and the other for discovery.
The Public Defender assigned another attorney, Anthony Blasi, to represent defendant, but Mr. Blasi declined the assignment. Mr. Fullilove accompanied defendant on his next appearance before the court. Defendant informed the court that Blasi had withdrawn from the case because of Blasi's semi-retired status and heavy caseload. Mr. Blasi, however, advised the court that he had withdrawn as defendant's counsel because he and defendant disagreed about trial strategy.
On May 22, 1987, defendant and Mr. Fullilove appeared a third time, at which time the following colloquy occurred:
THE COURT: Mr. Crisafi, we have Mr. Fullilove who, I understand, has been designated to represent you.
THE DEFENDANT: I decline representation of this counsel at this time. I have --
THE COURT: You mean you want to represent yourself?
THE DEFENDANT: No, not really. I would like representation, and if it's necessary, I will go in pro se rather than --
THE COURT: That's up to you, but I'm not going to allow you to make a choice as to who is going to represent you.
THE DEFENDANT: All right, your Honor, then I will represent myself.
THE COURT: That's up to you. I will have to ask counsel to sit by to assist you with whatever technicalities of the law you may be advised of.
Defendant then argued motions, one to dismiss the indictment for reasons of delay and the other to reduce bail. At the Conclusion of the proceedings, the following exchange took place:
THE COURT: Mr. Crisafi, wait just a moment. Let's get something straight. Either you are going to be represented by counsel, or you are going to do the talking, either way, make up your mind.
[The following took place at sidebar]
MR. FULLILOVE: I have had the opportunity to talk to Mr. Crisafi, about the issue of representation and what he's expressed to me could readily be described as his view of trial tactics. I can't say that they are at all unfounded. I mean, I can understand the tactics he wishes to employ, but I'm in a position where I can't do anything at this stage. I can understand his tactics. I don't want to put them on the record because I might be violating what he has told me.
THE COURT: You probably would be. Go ahead.
MR. FULLILOVE: But I would like the opportunity -- It's going to be difficult for me to sit here and advise him when in fact perhaps what would make most sense is to go to the Public Defender and see if they couldn't in fact assign an attorney.
THE COURT: As far as I understand, you are assigned to represent him.
MR. FULLILOVE: Yes, and that's not going to make.
THE COURT: He is going to make his choice. I can't let him decide who's going to represent him in the Public Defender's Office. He is not going to have that choice, and I will tell him that. He either has to decide that he's going to try it himself, with a Public Defender assisting him in the technical aspects, or he will be bound by a lawyer representing him. I won't play games with him, and I'm going to make that clear.
The trial court then gave defendant until May 27 to decide whether to proceed with assigned counsel or to try the case on his own with the assistance of standby counsel.
Defendant informed the court on August 2, 1987, that he had dismissed Fullilove. In reply, on August 7, 1987, the court sent a letter informing defendant that the Public Defender would not assign a different attorney to represent him. The court warned defendant that "if you persist in your refusal to have him try this case in your behalf, you will be placed in the position of trying this case pro se with Mr. Fullilove sitting with you to assist you with all the legal technicalities involved." The court appointed Jed-Matthew Philwin, a private attorney, to appear on defendant's behalf at all subsequent pre-trial motions. During one of his appearances with Philwin, the court engaged defendant in the following Discussion:
THE COURT: Before we proceed, Mr. Crisafi, I want to clear the air as to one point. Some time ago there was a Discussion held in this Court at which time you indicated you ...