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State v. Reddish

November 10, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLES E. REDDISH, JR., DEFENDANT-APPELLANT.



On appeal from the Superior Court, Law Division, Camden County.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Charles E. Reddish, Jr., appeals a jury verdict of guilty on the charge of capital murder and the imposition of a death sentence.

Reddish lived and worked in an apartment building located in Cherry Hill, New Jersey, during the relevant period of 1991. The victim, Dede Rosenthal lived in the same apartment complex. Sometime during the night of Friday, February 22, 1991, an elderly downstairs neighbor of Rosenthal's heard a loud thump emanating from Rosenthal's apartment. The neighbor also heard Rosenthal's patio door open and close.

Rosenthal did not report to work the following Monday or Tuesday. Two of her co-workers became concerned and contacted police on Wednesday, February 27, 1991. Police officers went to Rosenthal's apartment to investigate. They noticed newspapers accumulated outside the unlocked front door of the apartment. Upon entering the unit, the officers observed that the apartment was neat and showed no sign of a struggle or forced entry. Rosenthal's bed was made, and her closets were orderly and full of clothes. Her personal belongings, including an appointment book and her car keys, were still in the apartment. Officers noticed no unusual odors or smells. Rosenthal's car, containing her briefcase and topcoat, was still in the parking lot.

As part of the investigation, police interviewed employees of the apartment complex, including John Bristol, who Rosenthal had been dating, and Reddish. Bristol told police he had last spoken with Rosenthal by phone at approximately 10:00 p.m. on Friday, February 22, 1991. Reddish denied having any knowledge of Rosenthal's whereabouts. Further efforts to locate Rosenthal proved unsuccessful. Nobody had heard from or seen Rosenthal since February 22, 1991.

On October 6, 1995, more than four years after Dede Rosenthal disappeared, Reddish was arrested for the murder of his girlfriend, Rebecca Wertz. Detectives investigating Rosenthal's disappearance learned of the arrest and interviewed Reddish in the Burlington County Prosecutor's Office on December 11. After waiving his Miranda rights, Reddish provided a lengthy tape-recorded statement admitting that he had killed Rosenthal and disposed of her body in Salem County. Later in the evening, Reddish called a local newspaper reporter and, in a tape-recorded interview, Reddish again admitted to killing Rosenthal.

In March 1997, Reddish was indicted for murder, felony murder, robbery, burglary, and hindering apprehension in connection with Rosenthal's death. Reddish successfully moved for the dismissal of all charges except the murder charge as barred by the statute of limitations.

Reddish faced trial for the murder of Wertz and was found guilty. After that proceeding, Reddish was reindicted for the murder of Rosenthal. The State served a notice of three aggravating factors under the death penalty statute - that Reddish had been convicted of another murder (Wertz); that the murder of Rosenthal was committed in the course of a felony; and that Reddish killed Rosenthal to escape detection.

Defense counsel, consistent with Reddish's request but against counsel's advice, submitted a timely motion to dismiss counsel and to substitute Reddish as pro se counsel. The trial court denied Reddish's motion to appear pro se, reasoning that Reddish's waiver of the assistance of counsel was not knowing and voluntary. The trial court reasoned that Reddish did not understand the danger of making statements before the jury during the course of representing himself that might result in an inadvertent waiver of his Fifth Amendment right to remain silent.

At Reddish's guilt-phase trial, his statements to police detectives and the newspaper reporter formed the bulk of the State's case. The State also presented evidence to corroborate the trustworthiness of those statements.

From that evidence, a jury could have found the following facts.

Reddish lived with his girlfriend, Rebecca Wertz, in the same building as Rosenthal. On the night of Rosenthal's disappearance, Reddish used a substantial amount of cocaine. Sometime after 2:00 a.m., Reddish used a key he possessed by virtue of his job as a porter to gain access to the roof. He then swung down onto Rosenthal's balcony, opened the unlocked sliding door and entered the apartment.

Having seen Rosenthal in the building and spoken about her with Bristol, his co-worker, Reddish entered Rosenthal's apartment seeking a sexual encounter. He walked around her apartment and observed that she was alone. While Reddish was looking through the apartment for valuables, Rosenthal awakened. Rosenthal pulled the blankets over her head and let out a slight scream. Reddish dove towards her and covered her mouth with his hand. When Rosenthal fought back, Reddish beat her about the head, causing her to lose consciousness. Fearing that she would later identify him, Reddish suffocated Rosenthal and placed her back on the bed.

Reddish went to the kitchen and located Rosenthal's pocketbook. He removed eighty dollars in cash. He also unlocked the front door in the event that he had to re-enter the apartment, and then exited the dwelling by climbing back on the roof from the balcony.

Two or three days later, Reddish noticed newspapers accumulating in the hallway outside Rosenthal's apartment. Fearing that someone would discover her body, he returned to Rosenthal's apartment later that night with a shopping cart and a painter's blanket. He wrapped Rosenthal's body in the fitted sheet and painter's blanket and put her in the shopping cart. Next, he removed the top sheet and pulled up the bedspread.

Reddish placed Rosenthal's body in the back of Wertz's car, and proceeded south on Route 130 towards Pedricktown. He entered an area he described as a landfill, and left Rosenthal's body in six-foot-tall weeds. Reddish returned to the apartment building, and put the painter's blanket, the sheets from Rosenthal's bed, and her purse into a dumpster near the complex. He returned to his apartment like nothing happened, except that he told his girlfriend, Wertz, that he had killed Rosenthal.

After confessing to the murder four and one-half years later, Reddish brought the police to a dredging disposal area near Pedricktown to locate the body. Sediment from the Delaware River had been repeatedly dumped at the location during the intervening years, creating a rough, overgrown terrain. Police failed to find Rosenthal's remains, and her body was never recovered.

At trial, Reddish focused on the lack of a body to argue that Rosenthal had not died in February 1991. He presented three witnesses who stated that they saw Rosenthal at a bar in Jackson Township, Ocean County, in March 1991. The witnesses contacted police in response to a local news broadcast regarding Rosenthal's disappearance. The witnesses claimed that the woman appeared disoriented, had no money, and was looking for a ride to Florida. She denied being Dede Rosenthal, claiming that her name was "Lori."

Reddish also sought to refute his confessions by arguing that at the time he made the statements, he was deluded into thinking he killed Rosenthal. He pointed to inconsistencies between his statements and other facts surrounding Rosenthal's disappearance. The jury nonetheless found the State's evidence convincing and convicted Reddish of purposeful or knowing murder and felony murder. The penalty phase followed before a separate jury.

The State sought to establish the aggravating factor of an alleged prior-murder, and presented the assistant prosecutor who prosecuted Reddish in the murder of Wertz. In addition, the State alleged the aggravating factors of murder to escape detection and felony murder, and reintroduced portions of the guilt-phase evidence pertinent to those issues.

Reddish sought to present evidence in support of nine mitigating circumstances under the "catch-all" category. The jury found all three aggravating factors and five mitigating factors, including that Reddish had attempted to assist police in locating Rosenthal's remains, that he had been exposed to violence, drunkenness or substance abuse, and that he suffered from delusions or mental illness since adolescence.

The jury unanimously concluded that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt, and Reddish was sentenced to death.

Reddish's appeal as of right raises a number of issues, including violation of his constitutional right to self-representation, error in admitting other crimes evidence, and faulty jury instructions.

HELD

A defendant in a capital case has the right to proceed pro se, but with the protection of mandatory standby defense counsel. Because the Court is reversing on other grounds, it need not decide whether the trial court erred in denying Reddish's motion to proceed pro se. The admission of evidence that Reddish was in custody on unrelated charges when he confessed and the erroneous instructions on the inability of police to locate the victim's body are errors that, cumulatively, warrant reversal of the conviction.

1. A constitutional right to self-representation was recognized by the United States Supreme Court in Faretta v. California, 422 U.S. 806, The opinion of the court was delivered by: Justice Zazzali

Argued October 8, 2003

A jury found defendant Charles E. Reddish, Jr., guilty of knowing or purposeful murder by his own conduct. At the sentencing phase of the trial, a separate jury determined that aggravating factors outweighed mitigating factors beyond a reasonable doubt, and the court sentenced defendant to death. Defendant appeals both his conviction and his sentence.

I.

On Friday, February 22, 1991, Dede Rosenthal reported to work at the Elwyn Institute in Vineland, New Jersey, where she trained staff to work with autistic children. At 4:47 p.m., on the way home from work, she withdrew eighty dollars from an automatic teller machine (ATM). Later that evening, she spoke on the phone with a friend, Sherri Klemow. She also spoke with John Bristol, whom she had been dating. Bristol worked at Somerset Towers in Cherry Hill, the apartment complex where Rosenthal lived.

Early the next morning, a loud noise emanating from Rosenthal's apartment awoke Lucy Faricelli, Rosenthal's elderly downstairs neighbor. Although she would later express some confusion about the exact date she heard the noise, Faricelli told police in March 1991 that she heard a "thump" on the floor above her late Friday night. She also heard Rosenthal's patio door open and close, and heard a cat crying on the balcony. Prior to that night, she had never heard any noises from Rosenthal's apartment.

Rosenthal did not report to work on Monday, February 25, or Tuesday, February 26, nor did she call in sick or contact anyone at the Elwyn Institute. Rosenthal had no prior unexplained absences from work during her previous six months of employment. Two of her co-workers became concerned and, on Wednesday, February 27, reported Rosenthal missing to the Cherry Hill Police Department.

Police officers went to Rosenthal's apartment to investigate the report. They noticed that newspapers had accumulated outside the unlocked front door. Upon entering her unit, the officers observed that the apartment was neat and showed no sign of a struggle or forced entry. Rosenthal's bed was made. Her closets were orderly and full of clothes, and her luggage, passport, and personal appointment book were still in the apartment. Rosenthal's keys were on the kitchen counter and her cat was outside on the balcony. The temperature inside the apartment was normal and the officers noted no unusual odors or smells. Her car, containing her briefcase and topcoat, was still in the parking lot. A subsequent search of the entire apartment complex and its grounds by the officers, assisted by a dog trained to detect the scent of human decomposition, failed to locate Rosenthal.

As part of the investigation, police interviewed employees of the apartment complex, including Bristol, who told them he had last spoken with Rosenthal at approximately 10:00 p.m. on Friday night. They also spoke with defendant, who worked as a porter in the building. Defendant answered their questions but denied any knowledge of Rosenthal's whereabouts.

Further efforts to locate Rosenthal proved unsuccessful. The police contacted individuals named in Rosenthal's personal appointment book, but nobody had heard from or seen Rosenthal since February 22, 1991. The police confirmed that no one named Dede Rosenthal had purchased a plane, train, or bus ticket. Discussions with employees at Rosenthal's bank disclosed that one banking transaction occurred on March 1, 1991, but the police later discounted that as a pre-arranged, automated transaction.

On June 12, 1992, police in Burlington County arrested defendant on another, unrelated charge. Hearing of the arrest, the officers investigating Rosenthal's disappearance again questioned defendant. He continued to deny any knowledge of, or involvement in, her disappearance.

Rosenthal's family made additional attempts to locate her. Private investigators hired by the family were unable to discover anything regarding her disappearance. The family's continuing efforts, however, did result in the feature of Rosenthal's disappearance on an episode of the television show "Unsolved Mysteries." That episode aired nationally six times between April 1993 and October 1995. In response to the broadcasts, the program received more than 150 calls from around the country, including Florida, Oklahoma, and California. The Cherry Hill Police Department sent form letters to the police departments in each city from which the calls originated, requesting assistance in following up sightings reported by viewers in those areas. Those local police departments then reported back to the Cherry Hill department. None of those leads bore fruit.

On October 6, 1995, more than four years after Dede Rosenthal disappeared, investigating officers of the Cherry Hill Police Department, still with no leads and no suspects, learned from a television news broadcast that defendant had been arrested for the murder of his girlfriend, Rebecca Wertz, and other charges, and was being held in Burlington County Jail. On October 11, detectives from the Cherry Hill Police Department interviewed defendant at the Burlington County Prosecutor's Office. After waiving his Miranda*fn1 rights, defendant provided a lengthy tape-recorded statement admitting that he had killed Rosenthal and disposed of her body in Salem County. Later that evening, he placed a telephone call to John Knarr, a reporter for the Burlington County Times. In an interview tape-recorded by Knarr, defendant again admitted to killing Rosenthal.

In March 1997, the Camden County Grand Jury indicted defendant for knowing or purposeful murder, felony murder, robbery, burglary, and hindering apprehension in connection with Rosenthal's death. Defendant successfully moved for the dismissal of the robbery, burglary, and hindering-apprehension counts of the indictment as barred by the applicable statute of limitations.

Subsequently, defendant faced trial in Burlington County for the murder of Wertz. After a jury found defendant guilty in that proceeding, the Camden County Grand Jury reindicted defendant, charging him with knowing or purposeful murder by his own conduct and felony murder for the death of Rosenthal. The State also served a notice of aggravating factors, pursuant to Rule 3:13-4(a), alleging that defendant had been convicted of another murder (i.e., Wertz's killing), N.J.S.A. 2C:11-3c(4)(a); that the murder of Rosenthal was committed in the course of a felony, N.J.S.A. 2C:11-3c(4)(g); and that defendant killed Rosenthal to escape detection, N.J.S.A. 2C:11-3c(4)(f).

Defense counsel, consistent with defendant's request but against their own advice, submitted a timely motion on behalf of defendant to dismiss counsel and to substitute defendant as pro se counsel. Defendant withdrew an earlier request that he serve as co-counsel to his designated attorneys or, in the alternative, that the court appoint his designated attorneys as standby counsel. The trial court held a hearing to address defendant's motion. We discuss the testimony and colloquy at the hearing more fully later in this opinion.*fn2 Suffice it to note here that the trial court questioned defendant at length. Defendant stated that he understood the charges and the possible sentences he faced, but he concluded that he would be able to defend himself. The trial court voiced concern about defendant's understanding of his right to remain silent and, more specifically, defendant's ability to avoid incriminating himself during the cross-examination of witnesses. The court then denied defendant's motion to appear pro se made pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975), reasoning that defendant did not knowingly and voluntarily waive the assistance of counsel because he did not understand the danger that statements made before the jury during the course of representing himself might result in an inadvertent waiver of his Fifth Amendment right to remain silent.

Defendant's guilt-phase trial began on September 25, 2001. Defendant's statements to the detectives and to Knarr formed the bulk of the State's case. The State also presented evidence to corroborate the trustworthiness of defendant's statements. From that evidence, a jury reasonably could have found the following facts.

Defendant lived with Rebecca Wertz in the same building as Rosenthal. On the evening of Rosenthal's murder, defendant used a substantial amount of cocaine. He returned to his apartment between 1:00 a.m. and 2:00 a.m. and, shortly thereafter, took the stairs to the roof of the apartment building. With a key he possessed by virtue of his job as a porter, he gained access to the roof and then swung down onto Rosenthal's balcony. Once on the balcony, he opened the unlocked sliding door and entered her apartment.

Having seen Rosenthal in the building and in the lobby and having spoken about her with Bristol, defendant entered Rosenthal's apartment seeking a sexual encounter. He walked around her apartment and observed that she was alone. While he was looking on her bureau for valuables, she awakened. Rosenthal saw defendant in her bedroom, pulled the blankets over her head, and let out a slight scream.

Defendant dove towards her and covered her mouth with his hand. She fought back, biting his hand and scratching his face. Defendant then beat her about the head, causing Rosenthal to lose consciousness, fall out of bed, and slump to the floor. Fearing that she would later identify him to the police, defendant then suffocated Rosenthal while she was still unconscious by covering her mouth and nose with his hand. He placed her back on the bed, went to the kitchen, and found her pocketbook. He removed eighty dollars in cash. Leaving her car keys on the bar, he unlocked the front door in the event that he had to re-enter the apartment. He then exited the dwelling by climbing back onto the roof from the balcony.

One or two days later, defendant noticed newspapers accumulating in the hallway outside of Rosenthal's door. Fearing that someone would discover her body, he returned to Rosenthal's apartment later that night with a shopping cart and a painter's blanket. Rosenthal's corpse was leaking bodily fluids onto the bed. He wrapped her body in the fitted sheet from the bed and put her in the shopping cart. Next, he removed the top sheet and made the bed by pulling up the bedspread.

Defendant pushed the shopping cart containing the body out of Rosenthal's apartment and exited the grounds of the complex. He left her body, still in the shopping cart, at a nearby baseball field and returned to the apartment building to retrieve Wertz's car. He then drove back to the field, placed Rosenthal's body in the back, and proceeded south on Route 130 towards Pedricktown. After entering an area he described as a landfill and proceeding an additional twenty-five yards or so, defendant removed Rosenthal's body from the car and tried to bury her, but the ground was too hard. He then took her fifteen to thirty feet further into an area covered with six-foot-tall weeds. Defendant left the victim's body hidden only by the vegetation. He then drove back to the apartment building, retrieved the shopping cart from the baseball field, and returned the cart to the building's boiler room. He put the painter's blanket, the shovel, the sheets from Rosenthal's bed, and her purse into a dumpster near the apartment complex. He then cleaned out Wertz's car to eliminate the smell of bodily fluids. Finally, according to defendant, he returned to his apartment "like... nothing ever happened," except to tell his girlfriend, Wertz, that he had killed Rosenthal.

After confessing to the murder four and a half years later, defendant assisted the police in looking for her remains. He led them to a dredging disposal area near Pedricktown, where sediment from the Delaware River had been repeatedly dumped during the intervening years, creating a rough, overgrown terrain that changed with each subsequent dumping. After several hours of searching the area, the police failed to find Rosenthal's remains. Her body was never recovered.

At trial, defendant focused on the lack of a body to argue that Rosenthal had not died in February 1991. In support of his theory that Rosenthal had disappeared on her own and had not been killed, defendant presented three witnesses who stated that they saw Rosenthal at a bar in Jackson Township, Ocean County, in March 1991. The witnesses testified that they contacted police in response to a local news broadcast regarding Rosenthal's disappearance. They stated that a young woman resembling Rosenthal had come into the bar. She appeared disoriented, had no money, and was looking for a ride to Florida. The woman told the patrons that her name was "Lori" and, in response to their queries, denied being Dede Rosenthal.

Defendant also sought to refute his confessions to both the police and the newspaper reporter by arguing that at the time he made the statements, he was deluded into thinking that he had killed Rosenthal. In support of this contention, defendant pointed to inconsistencies between his statements and other facts surrounding Rosenthal's disappearance. For instance, the police did not notice any odor upon first entering Rosenthal's apartment. Defendant, however, presented Dr. John Adams, a pathologist, who testified that a human body begins decomposition immediately upon death and produces a noticeable smell within twenty-four hours. Dr. Adams explained that a body decomposing on a bed for two or three days would produce a strong smell in the room that would remain for a substantial period after the body was removed.

In further support of his claim that he was delusional when he confessed, defendant pointed to part of the statement he gave to Knarr. In that statement, defendant had attempted to explain "why [he] would... commit a murder." He engaged in a rambling description of a motor vehicle accident that happened when he was sixteen years old. Apparently, he had collided with another vehicle and quickly left the scene of the accident. Although he described the collision as minor and stated that he never saw the driver of the other vehicle, he imagined that she had dark hair and envisioned her slumped over in her car. Days later, he heard somebody on a citizens' band radio mention that the police were looking for somebody who had killed a woman. Defendant explained to Knarr that -- without knowing anything else about either the car accident or the killing mentioned on the radio -- he immediately assumed that he had killed the other driver and that the police were looking for him. For the next six years, he "thought that [he had] committed a very bad crime" and worried that the police were going to arrest him. As he related to Knarr, that episode led defendant to think of himself as a "killer." At trial, defendant argued that, just as in his story about the car accident, he only imagined his involvement in Rosenthal's death.

The jury nonetheless found the State's evidence convincing and, on October 11, 2001, found defendant guilty of purposeful or knowing murder and felony murder. It also found that defendant committed the murder by his own conduct, thereby rendering him eligible for the death sentence. The penalty phase of the trial began on June 19, 2002, before a separate jury.

As noted, the State alleged prior-murder as an aggravating factor. N.J.S.A. 2C:11-3c(4)(a). To establish that defendant previously had been convicted of the knowing or purposeful murder of Wertz, the State offered testimony of the Burlington County assistant prosecutor who had prosecuted defendant in that proceeding. The State also presented the testimony of the medical examiner who had performed the autopsy on Wertz. He indicated that Wertz died from multiple head injuries consistent with repeated hatchet blows. Additionally, the State alleged aggravating factors in the form of murder to escape detection and felony murder, N.J.S.A. 2C:11-3c(4)(f) and (g), and re introduced portions of the guilt-phase evidence pertinent to those issues.

In response, defendant presented evidence in support of nine mitigating circumstances under the "catch-all" category, N.J.S.A. 2C:11-3c(5)(h). A member of the Camden County Sheriff's Department and members of defendant's family testified on his behalf.

On June 26, 2002, the jury returned its verdict. It found all three aggravating factors to be present and found five mitigating factors, namely, that defendant had provided good faith assistance to the police by attempting to locate Rosenthal's remains (four jurors); that defendant had been exposed to violence, hatred, drunkenness, or substance abuse (eleven jurors); that defendant suffered from delusions, hallucinations, or mental illness since early adolescence (three jurors); that defendant confessed freely to the Rosenthal murder without any threats having been made or promises or inducements given to him (twelve jurors); and the existence of an unspecified factor relating to defendant's character or the circumstances of the offense (one juror). The jury unanimously rejected defendant's claims that he suffered an impairment due to mental illness, defect, or intoxication; had formed close affectionate bonds with his sister and mother; had failed to receive appropriate treatment for mental illness; and had expressed genuine remorse for his actions.

The jury unanimously concluded that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. Accordingly, that same day, the trial court sentenced defendant to death in a judgment of capital conviction. The court also imposed a sentence of life in prison with a thirty-year parole disqualifier on the felony-murder charge, to run concurrent to the capital-murder conviction but consecutive to defendant's sentence on the previous conviction for the murder of Wertz.

Defendant filed this appeal as of right, Rule 2:2-1(a), in which he raises a number of issues, including violation of his constitutional right to self-representation, error in admitting other-crimes evidence, faulty jury instructions, lack of sufficient corroboration of his confession, prosecutorial misconduct, and an illegal sentence. For the reasons that follow, we reverse the convictions and remand the matter for a new trial.

II.

Pro se Representation in Capital Penalty Phase In Thomas More's Utopia, there are laws but there are no lawyers. More explains: "[The Utopians] think it better for each man to plead his own cause, and tell the judge the same story as he'd otherwise tell his lawyer." Thomas More, Utopia 106 (Penguin ed. 1965). Defendant makes much the same point in this appeal. As attractive as that argument may be, that notion is unworkable in our non-utopian world.

We deal initially with the denial of defendant's motion to proceed pro se. This appeal represents the first time that a defendant sentenced to death in New Jersey has raised such a claim on direct appeal since the United States Supreme Court recognized the right of self-representation in Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562. Defendant argues that the trial court violated his Sixth and Fourteenth Amendment rights when it denied his motion to proceed pro se. According to defendant, that error requires reversal of his conviction. His claim presents this Court with a "direct clash between the right of self-representation and the state's obligation to provide a fair trial to criminal defendants, especially capital defendants." United States v. Kaczynski, 239 F.3d 1108, 1119 (9th Cir. 2001) (Reinhardt, J., dissenting), cert. denied, 535 U.S. 933, 122 S.Ct. 1309, 152 L.Ed. 2d 219 (2002).

In the following discussion, we first consider the Faretta doctrine and its criticisms. Next, in accordance with the Faretta framework, we inquire into the scope of defendant's right to self-representation in the penalty phase of a capital prosecution. See Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed. 2d 597 (2000) (setting forth Faretta's format for analyzing right to proceed pro se). Our analysis leads us to conclude that defendant has a right to proceed pro se during both guilt and penalty phases of a capital prosecution. Finally, infra at Parts III and IV, we examine the limitations on that right, namely, the requirement of knowing and voluntary waiver of counsel and the appointment of standby counsel.

A.

We commence our analysis of the scope of a defendant's right to proceed pro se during capital trials with the case law that set forth the boundaries of the right of self representation under the Sixth Amendment. Relying on the language and structure of the Sixth Amendment, as well as the historical practices in England and the colonies, the United States Supreme Court concluded in Faretta, supra, that the Sixth Amendment prohibits states from "hal[ing] a person into its criminal courts and there forc[ing] a lawyer upon him, even when he insists that he wants to conduct his own defense." 422 U.S. at 807, 95 S.Ct. at 2527, 45 L.Ed. 2d at 566. The Court acknowledged that it was "not an easy question," ibid., and that such a rule "seems to cut against the grain of... decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel," id. at 832, 95 S.Ct. at 2540, 45 L.Ed. 2d at 580 (citations omitted). But, the Court concluded, "the notion of compulsory counsel was utterly foreign" to the Framers of the Sixth Amendment: "[I]t is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want." Id. at 833, 95 S.Ct. at 2540, 45 L.Ed. 2d at 580. Instead, the Sixth Amendment right to "assistance of counsel" was intended as "an aid to a willing defendant -- not an organ of the State interposed between an unwilling defendant and his right to defend himself personally." Id. at 820, 95 S.Ct. at 2533, 45 L.Ed. 2d at 573. The personal autonomy of the defendant "that respect for the individual which is the lifeblood of the law" -- outweighs any competing interests that would compel representation. Id. at 834, 95 S.Ct. at 2541, 45 L.Ed. 2d at 581 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed. 2d 353, 363 (1970) (Brennan, J., concurring)).

The Court was aware of the implications of its holding. It acknowledged the likely detriment to a defendant who chooses to proceed pro se. Id. at 835, 95 S.Ct. at 2541, 45 L.Ed. 2d at 581. Specifically, the Court noted that a defendant who represents himself "relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel." Ibid. Accordingly, the Court stressed that a defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Id. at 835, 95 S.Ct. at 2541, 45 L.Ed. 2d at 582 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942)).

The Faretta doctrine has generated criticism. Indeed, Chief Justice Burger vigorously dissented in Faretta, e.g., id. at 838, 95 S.Ct. at 2542, 45 L.Ed. 2d at 582 (Burger, C.J., dissenting) ("[T]here is nothing desirable and useful in permitting every accused person, even the most uneducated and inexperienced, to insist upon conducting his own defense to criminal charges."), as did Justice Blackmun, e.g., id. at 849, 95 S.Ct. at 2548, 45 L.Ed. 2d at 590 (Blackmun, J., dissenting) (noting that nothing in Constitution "requires the States to subordinate the solemn business of conducting a criminal prosecution to the whimsical -- albeit voluntary caprice of every accused who wishes to use his trial as a vehicle for personal or political self-gratification"). In Martinez, supra, Justice Stevens, writing for the Court, indicated his reluctance to extend Faretta to other steps in a criminal prosecution. 528 U.S. at 161-62, 120 S.Ct. at 691, 145 L.Ed. 2d at 607 (observing that right to self representation was "not absolute" and concluding that "[e]ven at the trial level,... the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer"). The concurring opinions in Martinez reinforce the conclusion that the Martinez majority had, at a minimum, reservations about Faretta. Id. at 164, 120 S.Ct. at 692, 145 L.Ed. 2d at 608 (Kennedy, J., concurring) (implying that majority holding "casts doubt upon the rationale of Faretta"); id. at 165, 120 S.Ct. at 693, 145 L.Ed. 2d at 609 (Scalia, J., concurring) (observing majority's "apparent skepticism" concerning Faretta); id. at 164-65, 120 S.Ct. at 692-93, 145 L.Ed. 2d at 608 (Breyer, J., concurring) (acknowledging that "judges closer to the firing line have sometimes expressed dismay about the practical consequences of [Faretta]," but noting lack of empirical basis for questioning Faretta's constitutional foundation). Legal commentators also have questioned the doctrine, echoing many of the concerns raised in the Faretta dissents. See, e.g., John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years After Faretta, 6 Seton Hall Const. L.J. 483 (1996); Martin Sabelli & Stacey Leyton, Train Wrecks and Freeway Crashes: An Argument for Fairness and Against Self Representation in the Criminal Justice System, 91 J. Crim. L. & Criminology 161 (2000).

Despite these criticisms, until the Supreme Court sees fit to overturn Faretta, it, of course, remains law. Nor do we imply that there is any indication the Court might soon revisit that holding. In respect to this appeal, however, we note that Faretta does not distinguish between a defendant's right of self-representation in the penalty and guilt phases of a capital trial. But, because the legal commentary cited above suggests that Faretta can and should be read narrowly, and because the Supreme Court has never specifically addressed a defendant's right to represent himself during the capital penalty phase, further analysis is warranted.

B.

We thus take this opportunity to present in detail the historical and decisional background of the right in issue. Our discussion will demonstrate the closeness of the question presented, provide guidance for future courts and litigants, and afford context for our requirement of standby counsel, discussed infra at Part IV.

The United States Supreme Court stated in Faretta, supra, that the right of self-representation does not "arise[] mechanically from a defendant's power to waive the right to the assistance of counsel. On the contrary, the right must be independently found in the structure and history of the constitutional text." 422 U.S. at 820 n.15, 95 S.Ct. at 2533 n.15, 45 L.Ed. 2d at 572 n.15 (citation omitted). Therefore, our inquiry as to whether the right to self-representation exists at the penalty phase, and if so, the scope of that right, must begin with the Sixth Amendment.

Faretta and Martinez provide the appropriate framework for the analysis. As the Supreme Court discussed in Martinez, supra:

First, [Faretta] examined historical evidence identifying a right of self representation that had been protected by federal and state law since the beginning of our Nation. Second, it interpreted the structure of the Sixth Amendment, in the light of its English and colonial background. Third, it concluded that even though it is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts, a knowing and intelligent waiver must be honored out of that respect for the individual which is the lifeblood of the law.

[528 U.S. at 156, 120 S.Ct. at 688, 145 L.Ed. 2d at 603 (citations and internal quotation marks omitted).]

We now consider those three guideposts.

1.

We turn to the first of Faretta's three "inter-related arguments," the historical evidence. Id. at 156, 120 S.Ct. at 688, 145 L.Ed. 2d at 603. After setting forth the relevant English and colonial history, the Faretta Court concluded that the Framers understood the Sixth Amendment to imply a right of self-representation for criminal defendants. Faretta, supra, 422 U.S. at 832, 95 S.Ct. at 2539-40, 45 L.Ed. 2d 562. The Court stated: "In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding." Id. at 821, 95 S.Ct. at 2534, 45 L.Ed. 2d at 574. And that tribunal, known as the "Star Chamber," "characteristically departed from common-law traditions," and "has for centuries symbolized disregard of basic individual rights." Ibid. According to the Court, not only did American colonists agree that criminal defendants have a right to self representation, their belief in that right "was, if anything, more fervent than in England." Id. at 826, 95 S.Ct. at 2537, 45 L.Ed. 2d at 576-77. "We have found no instance where a colonial court required a defendant in a criminal case to accept as his representative an unwanted lawyer." Id. at 828, 95 S.Ct. at 2538, 45 L.Ed. 2d at 577.

Yet, we hesitate to conclude that the historical record speaks unequivocally in favor of finding the Faretta right for defendants during the penalty phase of a capital trial. Indeed, the modern-day capital trial, bifurcated into guilt and penalty phases, did not exist when the Bill of Rights was adopted.

The Supreme Court laid the constitutional groundwork for the bifurcated capital system in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972), by invalidating state statutes under which juries exercised unrestrained discretion to impose capital punishment. Justice Stewart, in a concurrence, stated: "[T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." Id. at 310, 92 S.Ct. at 2763, 33 L.Ed. 2d at 390 (Stewart, J., concurring). The problem with unguided jury discretion was that it provided "no meaningful basis for distinguishing the few cases in which [the death penalty was] imposed from the many cases in which it [was] not." Id. at 313, 92 S.Ct. at 2764, 33 L.Ed. 2d at 392 (White, J., concurring).

Four years after Furman, the Supreme Court invalidated mandatory death penalty schemes because they were not consistent with "the evolving standards of decency that mark the progress of a maturing society" and that give meaning to the Eighth Amendment. Woodson v. North Carolina, 428 U.S. 280, 301, 96 S.Ct. 2978, 2989, 49 L.Ed. 2d 944, 959 (1976) (plurality opinion) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed. 2d 630, 642 (1958)). On the same day the Court decided Woodson, it endorsed Georgia's bifurcated capital trial scheme, in which a "defendant is accorded substantial latitude as to the types of evidence that he may introduce" at the penalty stage. Gregg v. Georgia, 428 U.S. 153, 164, 96 S.Ct. 2909, 2921, 49 L.Ed. 2d 859, 869 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). The Court recognized that "accurate sentencing information" about "the character and record" of an individual offender, which "is an indispensable prerequisite to a reasoned determination" on punishment, often may be irrelevant or extremely prejudicial to a decision on guilt. Id. at 190, 206, 96 S.Ct. at 2934, 2940, 49 L.Ed. 2d at 843, 893. For that reason, the Court stated that the concerns of Furman "are best met by a system that provides for a bifurcated proceeding." Id. at 195, 96 S.Ct. at 2935, 49 L.Ed. 2d at 887.

In sum, even though the Framers of the Sixth Amendment did not contemplate imposing counsel on an unwilling defendant, they also did not foresee the evolution of Eighth Amendment jurisprudence and the separate penalty phase. We, therefore, do not find that the historical record speaks unconditionally in favor of applying Faretta to the capital penalty phase. In light of those conflicting concerns, we proceed to the remaining Faretta/Martinez factors.

2.

The second of Faretta's three "inter-related arguments" derives from the structure of the Sixth Amendment itself. It provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const. amend.

VI.

Faretta, supra, rooted its holding in the fact that the Amendment "speaks of the 'assistance' of counsel, and an assistant, however expert, is still an assistant," and not the "master." 422 U.S. at 820, 95 S.Ct. at 2533-34, 45 L.Ed. 2d at 573. The Court also emphasized that the Amendment "does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense."

Id. at 819, 95 S.Ct. at 2533, 45 L.Ed. 2d at 572. Thus, the Court concluded that "[a]lthough not stated in the Amendment in so many words," the text implies a right to self-representation. Ibid. In stating that conclusion, the Court remarked on the Framers' justification: "The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." Id. at 819-20, 95 S.Ct. at 2533, 45 L.Ed. 2d at 872-73.

As noted, the historical record does not decisively determine whether Faretta applies to the penalty phase.

However, the text of the Sixth Amendment, as discussed in Faretta, suggests that defendants have such a right. We now consider the final strain of Faretta.

3.

Faretta, ultimately, is about respecting a defendant's capacity to make choices for himself, whether to his benefit or to his detriment. It is a defendant's harmful decisions that, in turn, implicate Eighth Amendment concerns about fair and consistent application of the death penalty. The State has both a profound interest in, and a constitutional duty to ensure, the reliability and integrity of a penalty trial resulting in a death sentence. Hence, more than in any other class of cases, where capital convictions are concerned, it is not the defendant's interests alone that are at stake; society has a vested interest in a fair and consistent application of its most extreme penalty.

Faretta viewed the right of self-representation as a natural embodiment of a defendant's personal autonomy, the wellspring of the "respect for the individual which is the lifeblood of the law." Id. at 834, 95 S.Ct. at 2541, 45 L.Ed. 2d at 581 (quoting Illinois v. Allen, supra, 397 U.S. at 350-51, 90 S.Ct. at 1064, 25 L.Ed. 2d at 363 (Brennan, J., concurring)). As the Court noted in McKaskle v. Wiggins: "The right to appear pro se exists to affirm the dignity and autonomy of the accused...." 465 U.S. 168, 176-77, 104 S.Ct. 944, 950, 79 L.Ed. 2d 122, 132 (1984). At the same time, however, the autonomy interests of a defendant diminish following conviction. According to the Supreme Court in Martinez, supra:

"The status of the accused defendant, who retains a presumption of innocence throughout the trial process, changes dramatically when a jury returns a guilty verdict." 528 U.S. at 162, 120 S.Ct. at 691, 145 L.Ed. 2d at 607. Even though the Supreme Court observed in Faretta, supra, that "[t]he right to defend is personal" and the "defendant, and not his lawyer or the State, will bear the personal consequences of a conviction," 422 U.S. at 834, 95 S.Ct. at 2540-41, 45 L.Ed. 2d at 581, the Court has also recognized that the penalty phase of a capital trial necessitates a "heightened reliability" that is "demanded by the Eighth Amendment," Sumner v. Shuman, 483 U.S. 66, 72, 107 S.Ct. 2716, 2720, 97 L.Ed. 2d 56, 63 (1987); cf. People v. Chadd, 621 P.2d 837, 844 (Cal.) (stating that capital defendant's appeal "is not entirely 'his appeal'" because of state's "indisputable interest" in safeguarding against arbitrariness), cert. denied, 452 U.S. 931, 101 S.Ct. 3066, 69 L.Ed. 2d 431 (1981). Thus, as this brief discussion demonstrates, ascertaining the scope of a capital defendant's right to appear pro se during sentencing requires that we reconcile the defendant's constitutionally-protected autonomy interest with the State's constitutionally-mandated need for reliability.

4.

Although we have discovered no clear answer to the question whether a defendant has a right to appear pro se during capital sentencing, we accept the principle that defendants have that right. The Sixth Amendment provides a defendant the right to be left to his own devices, if he so chooses. See Faretta, supra, 422 U.S. at 820, 95 S.Ct. at 2533, 45 L.Ed. 2d at 573 ("The language and spirit of the Sixth Amendment contemplate that counsel" shall not "be an organ of the State interposed between an unwilling defendant and his right to defend himself personally."). However, our application of the Faretta/Martinez factors, coupled with the concerns regarding the reach of the right of self-representation, call for a cautious interpretation of Faretta.

Put differently, the right to self-representation is not absolute. There may be times, during both the guilt phase and penalty phase, when the defendant will be required to cede control of his defense to protect the integrity of the State's interest in fair trials and permit courts to ensure that their judgments meet the high level of reliability demanded by the Constitution. The following discussion concerning a pro se defendant's waiver of counsel and the requirement of standby counsel will assist courts in navigating the divide when the defendant's interests diverge from those of the public.

III.

Knowing and Voluntary Waiver

A defendant may invoke the right to self-representation only if he makes a knowing and voluntary waiver of counsel. Because we are reversing defendant's conviction on other grounds, we do not need to decide whether the trial court in this matter erred in denying defendant's motion to proceed pro se. We nonetheless provide guidance on this issue because it may arise again in this and other cases.

A.

We set forth excerpts from the proceedings below to provide context for our discussion. At the hearing held on defendant's motion to appear pro se, he acknowledged that he faced murder and felony-murder charges. When asked by the court if he believed that he would be able to defend himself "in such an awesome proceeding as this," defendant stated that he did.

The court then asked:

Q: Do you understand that as both the lawyer and the accused, it would be difficult to represent yourself?

A: Only -- I don't see how difficult -- I don't feel it would be difficult for me to represent myself.

The trial court explained that it had to ensure that defendant was aware that his statements, including his confessions, could be used against him, ultimately leading to his conviction.

When the trial court asked defendant about his challenging of the statements, defense counsel objected that the question touched upon defense strategy. This discussion ensued:

THE COURT: Well, I have to make sure that he understands that the jury can tend to infer that he has knowledge of incriminating evidence, and I have to -- I realize that this is a difficult situation, but State [v.] Crisafi makes it pretty clear that I have to be penetrating in my interrogation to appreciate the fact that a defendant, particularly in a case where he stands eligible for capital punishment, understands the fine line because... the point that I'm driving at and where I'm going, I mean, there's no secrets here, as you can appreciate the sensitivity right now, what happens if the defendant begins to ask questions which tend toward testimony so that the prosecution establishes that the defense has now waived its privilege?

[DEFENSE COUNSEL]: I understand, Your Honor, and I don't want to argue Your Honor's point because I don't want to argue Mr. Reddish's point because it's against my advice, but the issue here is whether or not his waiver is knowing and intelligent, not what would happen in given various circumstances during the course of the trial.

THE COURT: But if it's not understood by him, then it's not knowing that he's waiving his right to counsel. So, knowingly is very much a part of my questioning right now.... Does he know what he's doing by not taking himself out of the interrogation process when the primary focus of this case is going to be the very statements that he's alleged to have made that he is now going to have to challenge?....

So, my primary questioning right now is not to ask him to divulge his strategy, but I have to almost raise the point that if you were to do something like this, do you understand what is going to be involved.

Defendant stated that he understood that questions concerning his confessions "could or could not potentially [affect] the outcome of the trial." When asked if he understood that the jury could infer, based on the nature of his questions, that he had personal knowledge of the matter, and therefore could potentially incriminate himself, defendant replied, "Yes, I do."

The following exchange also occurred between the court and defendant:

Q: And although you presently have been assigned counsel not only to represent you through the trial of this case, but also to counsel you in regard to the capital aspects of this case, you believe that it would be more beneficial to you to ...


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