On certification to the Superior Court, Appellate Division.
This appeal addresses a defendant's right of self-representation, and whether that right is infringed by a trial court's restrictions on the defendant's movements within the courtroom.
Neptune police were engaged in an investigation of an extensive drug-trafficking network with defendant, Johnnie Davenport, at the helm. Davenport was a 33-year-old resident of Neptune who was over six feet tall and weighed approximately three hundred pounds. On January 9, 1997, acting on information obtained from several informants as well as evidence from a controlled purchase, police obtained a search warrant for Davenport's home and person. When Davenport returned home the following morning, a large number of officers in full protective gear broke through the door with a battering ram and announced their presence. Davenport retreated to a bedroom, slamming the door shut. When officers broke through that door, they observed Davenport lunging toward a shoeboX on the floor. Before Davenport could reach the box, he was subdued and handcuffed. The shoebox was found to contain two firearms.
An ensuing search revealed large amounts of drugs, money, and firearms in and about the bedroom. Although recalcitrant at first, Davenport became cooperative after being subdued and seemed resigned to his fate. Davenport acknowledged ownership of the drugs, money, and weapons, and outlined the history of his drug operations since 1988. Davenport stated that at the time of his arrest, he was purchasing about $22,000 of cocaine per week in New York City, and employing about forty or fifty "street hustlers" who would sell the cocaine in return for an agreed-upon percentage of earnings. Davenport was charged with twenty-five drug and weapons-related offenses, the most serious of which was first-degree leading a narcotics trafficking network (N.J.S.A. 2C:35-3), which carries a sentence of life in prison with a mandatory twenty-five-year minimum period of incarceration without parole.
Davenport elected to represent himself. At a pre-trial hearing, the trial court questioned Davenport in respect of his desire to proceed pro se. The trial court informed Davenport that it was appointing standby counsel,
Paul Escandon, a pool attorney working for the Office of Public Defender, to assist Davenport with the proceedings. The court explained that Mr. Escandon would be able to answer questions for Davenport, but would not be able to stand up and address the jury or cross-examine witnesses.
The trial court then addressed the security concerns implicated by Davenport representing himself. Noting that Davenport was in custody, and that he would not appear in court in shackles, the court established an arrangement whereby Davenport's field of movement would be restricted to an area immediately adjacent to his seat at counsel table. Davenport would not be allowed to approach the jury or the witnesses, and he would not be permitted to approach the bench for sidebar conferences. Instead, the trial court determined that standby counsel, Mr. Escandon, would participate in sidebars and relay messages back and forth between Davenport and the court. Davenport expressed concern that this arrangement would "prejudice" him, leading to "some type of suspicion" on the part of the jury. The trial court responded by stating that it "can't help that."
During jury selection, fifty-eight sidebar conferences were conducted with various jurors, and Davenport was not physically included in any of them. Mr. Escandon was present on Davenport's behalf. The sidebars generally consisted of a very short colloquy between the court and the potential juror, without input from either side. There were three notable exceptions, during which Mr. Escandon relayed the information to Davenport. Davenport did not take any action in any of these instances, but two of the jurors were excused.
The trial lasted nine days, during which there were twenty-one sidebar conferences. Topics discussed ranged from the substantive, such as admissibility of certain evidentiary proffers, to the mundane, such as scheduling of lunch for jurors. Davenport never objected to his exclusion from these conferences. On several occasions, Mr. Escandon left the sidebar conference to relay information to or from Davenport. Otherwise, Davenport delivered an opening statement to the jury, cross-examined the State's witnesses, called his own witnesses, and gave a lengthy closing statement in which he argued that his arrest and prosecution were the result of massive police corruption. Davenport also engaged in numerous exchanges with the court on evidentiary and other issues, and it is clear that several of the sidebar conferences were conducted at Davenport's request.
The jury convicted Davenport of numerous drug-related offenses, including first-degree leading a narcotic trafficking network. On that offense, Davenport was sentenced to an extended term of life imprisonment with a thirty-year period of parole ineligibility.
Davenport appealed, and the Appellate Division affirmed in an unpublished decision. The Appellate Division noted the trial court's valid security concerns, and found that the right to roam freely throughout the courtroom is not a necessary concomitant right to appear pro se. The Supreme Court granted Davenport's petition for certification to decide whether Davenport's physical exclusion from sidebar conferences violated his constitutional right of self-representation.
Because Davenport controlled the content and presentation of his defense, and the jury was fully aware of that reality, there was no violation of his right of self-representation.
1. A defendant has a right of self-representation, but a trial court may appoint standby counsel to assist him, even over the defendant's objection. The defendant must be allowed to exercise actual control over the case he chooses to present to the jury. If standby counsel's participation interferes with significant tactical decisions or if counsel is allowed to control questions or speak instead of defendant on matters of importance, the defendant's right to self-representation is eroded. In addition, participation by standby counsel must not be allowed to destroy the perception of the jury that defendant is representing himself and in control of the case. (pp. 11-16)
2. The record here demonstrates that Davenport exercised control over every substantive phase of his defense. In light of the security concerns attendant to the trial of an alleged drug kingpin facing a life sentence, the Court believes this is one of those situations in which the standby counsel was appropriate. And, a pro se defendant's solicitation of or acquiescence in certain types of participation by counsel substantially undermines later protestations of counsel interference. (pp. 16-20)
3. Next, the Court must determine whether participation by standby counsel destroyed the jury's perception that Davenport was representing himself. The trial court repeatedly informed the jury that Davenport was representing himself, and explained that Mr. Escandon was appointed only as a legal advisor to assist Davenport. In addition, Davenport delivered the opening statement, cross-examined the State's witnesses, called and examined his own witnesses, and delivered a lengthy closing statement. In these circumstances, the Court is not convinced that a reasonable jury would form any belief other than that Davenport was representing himself. Although the Court finds no constitutional violation in the manner in which this trial was conducted, it acknowledges the handling of the sidebars is a problem that will require some creativity by the trial bench. Trial courts that confront this issue in the future should explore every avenue to ensure that defendants can participate in sidebars to the fullest extent possible without compromising courtroom security. In circumstances in which trial courts determine that defendants should not be allowed at sidebar, the legitimate security concerns that necessitate such a finding should be detailed clearly on the record. (pp. 20-27)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN has filed a separate, dissenting opinion, in which JUSTICE LONG joins, expressing the view that the trial court impermissibly infringed on Davenport's right to "make his defense" and to project to the jury that he alone was in control of his legal fate.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, and ZAZZALI join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a separate dissenting opinion, joined by JUSTICE LONG.
The opinion of the court was delivered by: LaVECCHIA, J.
In this appeal we address whether a defendant's right of self-representation has been infringed. Specifically, we must consider whether the trial court's restrictions on defendant's movements within the courtroom, which prevented his physical presence at sidebars that were conducted during jury selection and trial with the assistance of standby counsel, prevented defendant from exercising his right to represent himself.
The facts are summarized from the trial record. At the time of his arrest, defendant Johnnie Davenport was a thirty three-year-old resident of Neptune Township. In the weeks prior to his arrest, the Neptune police were engaged in an ongoing investigation into what they believed was an extensive drug trafficking network with defendant at the helm. On January 9, 1997, acting on information obtained from several informants as well as evidence from a controlled purchase, the police obtained a search warrant for defendant's home and person. The following morning, at 5:00 a.m., eighteen Neptune police officers and Monmouth County Prosecutor's Office Narcotics Strike Force members assembled outside defendant's residence, waiting for him to return home. The police were in full protective gear, anticipating the possibility of gunfire. Defendant returned between 6:30 and 7:00 a.m. Shortly thereafter, eight to ten officers approached the house, broke through the door with a battering ram, and announced their presence and that they had a search warrant. Defendant, who was over six feet tall and weighed approximately three hundred pounds, retreated into his bedroom, slamming the door shut. As the officers broke through the door, they observed defendant lunge toward a shoebox on the floor. Before he could reach the box, multiple officers subdued, arrested, and handcuffed him. The shoebox was found to contain two firearms.
An ensuing search revealed large amounts of drugs, money, and firearms in and about the bedroom. According to Police Sergeant Joseph Burst, defendant, although recalcitrant at first, became cooperative after being subdued and seemed resigned to his fate. Indeed, defendant told Burst that the stress of running a drug operation was keeping him awake at night and that he was "relieved" and "glad it was over." Shortly after his arrest, defendant signed a Miranda waiver form, and thereafter acknowledged ownership of the drugs, money, and weapons found. Continuing to cooperate, defendant outlined the history of his drug operations since 1988. Defendant explained that he began his career dealing cocaine out of a warehouse in Asbury Park, selling up to a kilogram per week. He moved his operation and began selling drugs out of the apartments of acquaintances, offering a deal whereby defendant would pay the rent and utilities on the apartment if he were permitted to use it to sell drugs. By the time of his arrest, defendant's operation had grown large. He stated that he was purchasing about $22,000 of cocaine per week in New York City, and employing about forty or fifty "street hustlers" who would sell the cocaine and return to him an agreed-upon percentage of earnings.
After giving that detailed oral statement to the police, defendant was transported to the police station, where he gave a corresponding written statement. He was charged with twenty five drug- and weapon-related offenses, the most serious of which was first-degree leading a narcotics trafficking network, in contravention of N.J.S.A. 2C:35-3, which carries a sentence of life in prison with a mandatory twenty-five-year minimum period of incarceration without parole. Defendant also was charged with fourth-degree aggravated assault and third-degree tampering with a witness, stemming from an alleged assault by defendant on one of his drug dealers and a subsequent attempt by defendant to have that dealer file an affidavit to dismiss the assault complaint.
Defendant elected to represent himself. At a pre-trial hearing conducted on February 3, 1999, the trial court questioned defendant in respect of his desire to proceed pro se.
The court specifically called to defendant's attention that he had the right to an attorney, and that one would be appointed for him if he could not afford one. Defendant indicated that he understood his right to an attorney but nonetheless desired to proceed pro se. The court then informed defendant that standby counsel, Paul Escandon (a pool attorney working for the Office of the Public Defender), had been assigned to assist defendant and the court with the proceedings. The court explained to defendant:
All right. We have Mr. Escandon here as legal adviser. He's - only can answer questions for you. I'm not going to have him - he can't stand up here and cross examine witnesses that you don't want to cross-examine. I can't do it that way.
You have to represent yourself.
After the court again advised defendant of his right to counsel and defendant reasserted his desire to proceed pro se, the court addressed the security concerns implicated by defendant representing himself:
THE COURT: Okay. I don't know how we're going to begin here. But I think before we begin - go any further, obviously we're going to have some rules as to security.
Mr. Davenport, you are in custody. And I can't change that. I spoke to Lieutenant Collins here today before you came in. I asked him to come up, because I wanted to let him know what the rules are, because the rules are probably going to be a little different.
Usually because people don't usually -people in custody don't usually represent themselves. And I didn't want anything you do to be taken by them as something wrong and then them pouncing on you, to be blunt.
So I talked to Lieutenant Collins and we thought about some things. And I'd like everybody to know what we're doing. Mr. Davenport, you'll be - when you come in the courtroom, obviously you're not going to have handcuffs or shackles. I mean that's a rule....
You will not be allowed at side bar. So if there's anything that has to be said outside the presence of the jury, we'll either have to let the jury go into the jury room or you can mention it to Mr. Escandon who can speak to me and he would relay a message.